Agenda of Ordinary Meeting

BYRON SHIRE COUNCIL

Notices of Motion 9.1

Notices of Motion

Notice of Motion No. 9.1 Call for Public Submissions - Design and Functioning of Byron Shire Council Website

File No: I2019/363

I move that:

Council call for public submissions relating to the design and functioning of BSC website with an aim to improving the site to enable the community to be better informed and to engage with council processes.

Signed: Cr Cate Coorey

Councillor’s supporting information:

It has been a year since the new website was launched. The website is the prime means through which the community interacts with Council. Whilst the site is an improvement on the previous site, there are also areas where it needs improvements. Given the community uses the site, the best way to get feedback on how it is working is to ask them to let us know what is good and what could be better.

Staff comments by Annie Lewis, Media and Communications Coordinator, General Manager’s Office:

Council launched its new website in February 2018 and it is timely that the website be reviewed with a focus on its ability to meet the needs of the community.

The website is an important conduit of information to the community and the new platform is much more user friendly that the old website. At peak times there are more than 100 visitors per hour to the Council website.

The three most popular pages on the website are generally:

· Current vacancies

· Find a DA

· Apply for parking permits

It is important to note that information and services delivered by these popular pages, while found on Council’s website, are delivered via third party providers. As a result there are some limitations in functionality and configuration over which Council has little to no control.

Byron Shire Council’s website is delivered via the Open Cities content management system (CMS). Open Cities provide website services to many local governments nationally and internationally. However, as indicated above, other sites are surfaced through Council’s website to extend its capability (e.g. Pay Parking and DA tracking). Whilst the Open Cities CMS is designed with a customer experience and accessibility focus, the other sites may not be.

It should also be noted the Open Cities CMS is an ‘off the shelf’ product configured to Byron Shire Council’s requirements. When Council choose an ‘off the shelf’ solution it sought the right balance between cost versus flexibility; it meant that although most configuration requirements can be met, there will always be some limitations with what and how things can be displayed on the website.

Community feedback received to date

Whilst there were some minor problems when the new website went live in 2018 there was nothing that was not expected when an organisation like Byron Shire Council makes the transition from an old website to a new one. Since February 2018 Council has received 38 feedback posts via the website. Twenty-eight comments related to Find a DA, with 26 comments being negative.

Problems identified by staff and website users (the public) after the launch of the new website included:

· Broken links

These links were progressively fixed as they were discovered. Staff also contacted some of our regular website users and asked them to let Council know when they discovered broken links so they could be fixed.

· Lack of information on the new website/ information that was on the old website did not transfer to the new website

There was a lot of information on the old website that was not transferred to the new platform and this was (and still is) viewed as a problem by some members of the community. The old website housed approximately 2,500 PDF documents and contemporary and best website management practice does not support the storing of many PDFs on websites. Some of the reasons for this are that many of the documents are out-of-date and not relevant or current, or recent Council matters and the PDFs are often not responsive to different devices (tablet, mobile phone etc.), nor are they compliant with Web Content Accessibility Guidelines (WCAG) for people with disabilities.

It should be noted that a large number of these documents were development consent notices, and although not initially transferred to the new platform, most of these were successfully integrated into our eServices portal in late 2018 and are now accessible using DA Tracker.

· Difficult to find information on development applications

This is the area that the public have complained about the most and while there were some improvements in 2018 to make it easier to search and find information on development applications, it was clunky. Staff acknowledged this and on 15 March 2019 Council launched a new DA tracker function on the website and it is expected this will make getting information about DAs much easier for members of the public.

The DA search functionality, which is administered by staff in the Sustainable Environment and Economy Directorate, is not supplied by Open Cities – it is part of the Civica platform, which is a stand-alone system surfaced via council’s website and is essentially our Local Government customer portal.

· Information is difficult to find

It has become evident that staff have not included search words or meta-tags for some website pages and this means the information is not being picked up by search engines. This problem is being rectified as problems are discovered.

Improvements

Recognising the feedback and complaints about getting access to information about DAs the following improvements are being made:

· Track a DA and make a submission (15 March 2019). This DA Tracker tools are used by neighbouring Councils.

· Lodge DA electronically – Council is participating in an online DA lodgement pilot program with the Department of Planning. The intention is that once we are satisfied with the program and process, all applications will be lodged electronically.

· 3D Byron (Smart Cities and Suburbs) – allows people to view significant developments in 3D in relation to the surrounding area including height, shade, scale. It will be a requirement to submit a 3D model of the proposal to be viewed alongside plans and reports of development on exhibition.

Council also engaged a Website and Digital Content Officer in September 2018 to ensure the website remains current and responsive to customers needs. One of the roles of this position is to work with IT to refine the way some of the third party services work with the website with the aim of creating a seamless integration where possible.

Byron Model

Council is currently undertaking a deliberative democracy process (the Byron Model) to develop a model as to how decisions should be made in Byron Shire. As part of this process feedback has been received about how and when Council seeks involvement and shares information with the community. The project will conclude in May 2019 and Council has committed to a two-year trial of the recommendations. It is anticipated that the recommendations may include reference to Council’s website and access to information.

Conclusion

While getting feedback from the public will provide information to Council, including some valuable ideas, the configuration limitations of any CMS and third party services may mean that some improvement recommendations may not be deliverable.

Based on feedback from other councils already using the improved DA tracking functionality, it is expected this problematic area of the website will be much easier for people to use and thus eliminate the majority of complaints that we currently receive.

Financial/Resource/Legal Implications:

Staff time would be required to seek submissions. Depending on the outcome, there would also be financial implications to implement any recommendations.

Is the proposal consistent with any Delivery Program tasks?

Yes. Council’s 2017/2021(revised) Delivery Program includes:

CSP Objective	L2	CSP Strategy	L3	DP Action	L4	OP Activity
Community Objective 5: We have community led decision making which is open and inclusive	5.1	Engage and involve community in decision making	5.1.3	Enhance community access through digital technologies which broaden participation and support inclusion	5.1.3.3	Provide additional ways to conduct business online
		Engage and involve community in decision making			5.1.3.4	Promote online opportunities for community access

BYRON SHIRE COUNCIL

Notices of Motion 9.6

Notice of Motion No. 9.6 Draft Charter of Human Rights and Responsibilities

File No: I2019/402

I move:

That Council support the Charter of Human Rights and Responsibilities - Byron Shire

and implement its principles consistently with Council’s powers and responsibilities and

with current laws.

Attachments:

1 Charter of Human Rights and Responsibilities - Byron Shire, E2019/18860

Signed: Cr Michael Lyon

Councillor’s supporting information:

On 30 June 2018 former Human Rights Commissioner Professor Gillian Triggs spoke at the Ngara Institute’s annual lecture in Mullumbimby. The title of her lecture was “It’s time for an Australian Bill of Rights”.

Professor Triggs said “We now need, as a matter of urgency, some form of legislated charter of rights to protect fundamental common law freedoms in Australia and ensure we meet our international human rights obligations that we as a nation have committed to by treaty over the last 70 years or so.”

She encouraged everyone to come together and create a charter at a local level which then could be used to pressure the State Governments (Victoria currently has a charter of human rights that is supported by an Act but no other state has) and eventually the Federal Government.

Professor Triggs also said that a federally legislated Charter of Rights would better protect the rights of citizens, minorities and non-citizens, and ensure a culture of respect for the rights that underpin our democracy – freedom of speech, the right to vote, and equality.

Since that lecture a group of around 20-30 people led by prominent local lawyers have produced a draft document.

Council’s Legal Services team was asked to advise whether there is any cause for concern with Council either:

a. indicating support for the Charter of Human Rights and Responsibilities; or

b. adopting the Charter of Human Rights and Responsibilities.

Staff comments by Ralph James, Legal Counsel:

(Management Comments must not include formatted recommendations – resolution 11-979)

Council's functions and responsibilities

The Local Government Act 1993 (LG Act) sets out Council's responsibilities and powers (see section 7). Council has service functions, regulatory functions and ancillary functions under the LG Act.

Section 223 of the LG Act provides the role of the governing body of Council is as follows:

(a) to direct and control the affairs of the council in accordance with this Act,

(b) to provide effective civic leadership to the local community,

(c) to ensure as far as possible the financial sustainability of the council,

(d) to ensure as far as possible that the council acts in accordance with the principles set out in Chapter 3 and the plans, programs, strategies and polices of the council,

(e) to develop and endorse the community strategic plan, delivery program and other strategic plans, programs, strategies and policies of the council,

(f) to determine and adopt a rating and revenue policy and operational plans that support the optimal allocation of the council’s resources to implement the strategic plans (including the community strategic plan) of the council and for the benefit of the local area,

(g) to keep under review the performance of the council, including service delivery,

(h) to make decisions necessary for the proper exercise of the council’s regulatory functions,

(i) to determine the process for appointment of the general manager by the council and to monitor the general manager’s performance,

(j) to determine the senior staff positions within the organisation structure of the council,

(k) to consult regularly with community organisations and other key stakeholders and keep them informed of the council’s decisions and activities,

(l) to be responsible for ensuring that the council acts honestly, efficiently and appropriately.

Council is unable to exceed the role provided for it pursuant to the LG Act.

Section 223 (1)(d) requires Council to act as far as possible, in accordance with the principles in Chapter 3 of the LG Act. Section 8A is relevant in that regard and states:

(1) Exercise of functions generally

The following general principles apply to the exercise of functions by councils:

(a) Councils should provide strong and effective representation, leadership, planning and decision-making.

(b) Councils should carry out functions in a way that provides the best possible value for residents and ratepayers.

(c) Councils should plan strategically, using the integrated planning and reporting framework, for the provision of effective and efficient services and regulation to meet the diverse needs of the local community.

(d) Councils should apply the integrated planning and reporting framework in carrying out their functions so as to achieve desired outcomes and continuous improvements.

(e) Councils should work co-operatively with other councils and the State government to achieve desired outcomes for the local community.

(f) Councils should manage lands and other assets so that current and future local community needs can be met in an affordable way.

(g) Councils should work with others to secure appropriate services for local community needs.

(h) Councils should act fairly, ethically and without bias in the interests of the local community.

(i) Councils should be responsible employers and provide a consultative and supportive working environment for staff.

(2) Decision-making

The following principles apply to decision-making by councils (subject to any other applicable law):

(a) Councils should recognise diverse local community needs and interests.

(b) Councils should consider social justice principles.

(c) Councils should consider the long term and cumulative effects of actions on future generations.

(d) Councils should consider the principles of ecologically sustainable development.

(e) Council decision-making should be transparent and decision makers are to be accountable for decisions and omissions. [emphasis added]

(3) Community participation

Councils should actively engage with their local communities, through the use of the integrated planning and reporting framework and other measures.

In particular, please note principles 2(b) and (e) above, that councils should consider social justice principles and Council decision making should be transparent, with Councils decision makers being accountable for decisions and omissions.

'Support' of the Charter

The draft Charter of Human Rights and Responsibilities (Charter) would be able to be 'supported' by Council. The 'supporting' of the Charter is able to be characterised as consistent with Council's functions and powers under the LG Act.

Some of the principles included in the Charter are already embodied in law and the relevant law would operate in any event to afford the protection which is sought to be achieved through the Charter.

The principle may be expressed differently in law however, and it should be understood that the general law will prevail. For example, the "right to privacy" is expressed in a variety of legislation in NSW and at the Commonwealth level. The "right" is expressed in more detail in that legislation and includes obligations of agencies and government to protect and afford privacy.

Similarly, the right to public life is expressed in a broad sense in the Charter, but specific rights relating to hearing of persons objections (for example) are expressed in legislation including the Environmental Planning and Assessment Act 1979 and related Regulations.

It is important to appreciate that "rights" expressed in the Charter are subject to existing laws. Council should be aware of this and acknowledge such in its 'support' of the Charter.

Adopting or implementing the Charter

If Council sought to 'implement' the Charter, it would be important for Council to note that the Charter was subject to existing laws and could not derogate from existing laws. Where any inconsistency between the Charter and existing laws arose, the existing law would prevail.

This appears to be what the 'Statement of Compatibility' at the conclusion of the Charter seeks to achieve. Council may wish to express 'implementation' of the Charter as an expression of how it considers social justice principles in its decision making, pursuant to section 8A(2)(b) of the LG Act (subject to existing laws and functions and powers as noted below).

In each exercise of 'implementing' the Charter, Council would need to ensure that the implementation was consistent with the role, powers and functions of a Council, provided in the LG Act (principle 2(e) as provided in Section 8A of the LG Act is relevant in this regard).

Council is unable to perform functions or exercise powers not specified in the LG Act.

There are a number of matters referred to in the Charter that extend beyond Council's functions and powers, such as the right of assembly, strike and protest. Potential conflicts with powers under the LG Act may arise, such as a Development Control Order which (after being properly considered) causes a person to become homeless, whereas the Charter provides for a right to shelter. Existing laws must prevail.

In summary, it is possible for Council to seek to 'implement' the Charter however there will be potential conflicts with existing laws, and a consideration of compatibility with functions and powers would need to be considered with every 'implementation' of the Charter.

Financial/Resource/Legal Implications:

Staff time only

Is the proposal consistent with any Delivery Program tasks?

CSP Objective

CSP Strategy

Community Objective 2:

We cultivate and celebrate our diverse cultures, lifestyle and sense of community

2.1

Support and encourage our vibrant culture and creativity

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.2

Report No. 13.2 Adoption of a Code of Conduct

Directorate: General Manager

Report Author: Ralph James, Legal Counsel

File No: I2018/2336

Theme: General Manager

General Manager

Summary:

On 14 December 2018 the Model Code of Conduct and the Procedures for the Administration of the Model Code of Conduct were prescribed.

Council has six months from the date of prescription (to 14 June 2019) to adopt a Code of Conduct and Procedures based on the Model Code and Procedures.

It is permissible (and practical) for Council to adopt separate codes of conduct for:

1. Councillors,

2. Staff, and

3. Delegates and Committee Members

As Councillors at the 7 March 2019 workshop favoured this approach, separate Codes have been prepared and are attachments 1, 2 and 3.

RECOMMENDATION:

1. That Council note that the Codes of Conduct (E2019/857, E2019/858 and E2019/859) incorporate the provisions of the Model Code of Conduct for Local Councils in NSW prescribed on 14 December 2018

2. That Council endorse each Code of Conduct and place each Code of Conduct on public exhibition for a period of 28 days; and

a) That should no submissions be received, each Code of Conduct be adopted.

b) That should any submissions be received those submissions be reported to Council.

3. That Council endorse the Procedures for the Administration of the Codes of Conduct.

Attachments:

1 Code of Conduct for Councillors, E2019/857

2 Code of Conduct for Council Staff, E2019/858

3 Code of Conduct for Council Committee Members, Delegates of Council and Council Advisers, E2019/859

4 Procedures for the Administration of the Code of Conduct, E2019/856

Report

The Model Code of Conduct for Local Councils in NSW (Model Code) is made for the purposes of section 440 of the Local Government Act 1993 (Act) which requires every council to adopt a code of conduct that incorporates the provisions of the Model Code.

Councillors, administrators and Council staff, independent conduct reviewers, members of Council committees, including a conduct review committee, and delegates of the Council must comply with the applicable provisions of Council’s Code of Conduct in carrying out their functions as Council officials. It is the personal responsibility of council officials to comply with the standards in the Code and regularly review their personal circumstances with this in mind.

Failure by a Councillor to comply with the standards of conduct prescribed under the Code of Conduct constitutes misconduct for the purposes of the Act. Failure by a member of staff to comply with Council’s Code of Conduct may give rise to disciplinary action.

The Local Government (General) Regulation 2005 was amended on 14 December 2018, and inserted a new Part 8, which prescribes the Model Code and the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW (the Procedures).

Additionally, sections of the Local Government Amendment (Governance and Planning) Act 2016 commenced on 12 December 2018, and amended the Local Government Act 1993 to provide for amendments to Chapter 14 (Honesty and Disclosure of Interests) primarily directed at moving the pecuniary interest provisions in the LG Act into the Model Code.

Council has six months from the date of prescription, ie to 14 June 2019, to adopt a Code of Conduct and procedures based on the Model Code and the Procedures.

If Council fails to adopt a Code of Conduct and Procedures based on the Model Code and the Procedures within six months of their prescription, the provisions of the Model Code and the Procedures will automatically override any provisions of Council’s adopted Code of Conduct and procedures that are inconsistent with those contained in the Model Code and the Procedures.

Code of conduct complaints must be assessed against the standards prescribed under the version of Council’s Code of Conduct that was in force at the time the conduct the subject of the complaint is alleged to have occurred. Code of conduct complaints must be dealt with in accordance with the version of Council’s procedures that were in force at the time the complaint was made.

In adopting a new Code of Conduct and Procedures, Council may include provisions that are supplementary to those contained in the Model Code and the Procedures. Council may also impose more onerous requirements under its adopted Code of Conduct than those prescribed under the Model Code. However, council must not dilute the standards prescribed under the Model in its adopted Code of Conduct.

The Office of Local Government have made it clear that instead of a single code of conduct that applies to all council officials, Councils may adopt separate codes of conduct for:

1. Councillors,

2. Staff, and

3. Delegates and committee members

At a workshop held on 7 March 2019 those Councillors present indicated that the separate code approach should be taken.

The Model Code

One of the major changes is the removal from the Act and Local Government (General) Regulation 2005 of provisions dealing with pecuniary interests.

The media release by the OLG states that this will mean that the reforms will, “consolidate the prescription of ethical standards for council officials into a single statutory instrument” and will mean that “breaches of the pecuniary interests obligations by councillors are treated as misconduct … and will be subject to the “three strikes” misconduct rules.”

Pecuniary interest provisions are now incorporated into Part 4 of the Model Code. There are schedules to the Model Code dealing with disclosures of pecuniary interests.

One notable addition to disclosure obligations is that designated persons (defined in the Code but excludes Councillors) are required to declare whether they are a property developer or a close associate of a corporation which is a property developer in official returns of interest.

The NSW Electoral Commission defines a 'property developer' as an individual or corporation that:

· carries on a business mainly concerned with the residential or commercial development of land, with the ultimate purpose of its sale or lease of the land for profit, and

· in the course of that business:

o one relevant planning application has been made by or on behalf of the individual or corporation that is pending

o three or more relevant planning applications have been made by or on behalf of the individual or corporation and determined within the preceding seven years.

In addition to the provisions regarding pecuniary interests, among the notable changes proposed in the Model Code are:

§ clarification that conduct in good faith, whether or not it involves error, will not constitute a breach of fairness and equity obligations.

§ there are new bullying provisions, but it is made clear that reasonable management action carried out in a reasonable manner does not constitute bullying behaviour.

§ new standards requiring compliance with work health and safety obligations under the Work Health and Safety Act 2011.

§ new provisions regarding behaviour of councillors at meetings.

§ that designated persons, and members of staff of council, must disclose pecuniary interests ‘as soon as practicable after becoming aware of the interest‘.

§ clarification of the types of relationships that might give rise to non-pecuniary conflicts, and reinforcement of the importance of perception.

§ a person must disclose a non-pecuniary conflict of interest in relation to a matter as soon as practicable ‘after becoming aware of the non-pecuniary conflict‘.

§ if the general manager has a non-pecuniary conflict of interest, a decision on how it should be dealt with must now be made in consultation and at the direction of the mayor .

§ council committee members are not required to declare and manage non-pecuniary conflicts of interest under Part 5 of the Model Code, if they arise from an interest they have ‘as a person chosen to represent the community, or as a member of a nonprofit organisation or other community or special interest group, if they have been appointed to represent the organisation or group on the council committee‘.

§ non-pecuniary conflicts of interest arising from reportable political donations must be recorded in the minutes of a council meeting.

§ where council has a loss of quorum as a result of compliance with Part 5 of the Model Code (Non-Pecuniary Conflicts of Interest), the Minister (rather than the Chief Executive of the Office of Local Government) may allow a councillor or council committee member to take part in a matter they would otherwise be precluded from participating in.

§ a requirement that council officials do not participate in competitions for prizes where eligibility is based on the council being in a customer-supplier relationship with the competition organiser and a prohibition against personally benefiting from reward point programs when purchasing on behalf of council.

§ banning gifts or benefits greater than $50 from being accepted and introducing mandatory reporting of all gifts or benefits regardless of value. This is briefly referred to later.

§ clarification that in relation to inappropriate interactions, a public forum includes social media.

§ there is a new ‘inappropriate interaction‘, that prohibits councillors and administrators from approaching members of local planning panels and discussing applications that are before the panel, or that will come before the panel, unless that application forms part of the agenda of a panel meeting and the Councillor has a right to be heard by the panel at that meeting.

§ banning access to council information when councillors have a pecuniary or a significant non-pecuniary conflict of interest unless the information is otherwise available to members of the public, or the council has determined to make the information available under the GIPA Act.

§ council record keeping must comply with the State Records Act 1998.

Gifts and benefits

The Model Code brings into force what is claimed to be a crack down on gifts and benefits and requirements for formal training for Councillors and Mayors.

The Model Code has introduced a requirement for the mandatory reporting of all gifts regardless of value in Council’s Gifts Register. There is also a provision introduced providing that gifts or benefits that exceed $50 in value, aggregated over a 12 month period, are not regarded as being of token value.

The Model Code Procedures

The draft Procedures have been amended to reflect that pecuniary interest matters are now dealt with under the Code. Other noteworthy provisions are:

§ clarification on when complaints are not considered “Model Code complaints”.

§ clarification that complaints about the General Manager may be made to external agencies

§ a discretion for a General Manager or Mayor to delegate functions under Part 5 of the Procedures to a member of staff or persons external to council.

§ clarification on when the Mayor or General Manager may decline to deal with a complaint at the outset.

§ a new provision providing a procedure for dealing with a complaint about both the General Manager and Mayor.

§ establishing additional complaints assessment criteria to be considered by a conduct reviewer in the preliminary assessment of a complaint.

§ establishing additional sanctions which an investigator may recommend be imposed by council if it is determined that conduct investigated constitutes a breach of the Model Code.

§ a prohibition against council inviting submissions from persons other than the person the subject of an investigation when considering a final investigation report and the sanctions to be imposed on that person.

§ a requirement for a report to OLG to be given if Council does not adopt the sanctions in the investigation report.

§ a discretion for the General Manager to refuse to provide further information about a Model Code complaint (with the consent of the OLG) if a complainant has publicly disclosed information about a Model Code complaint that they have made or purported to make.

Training

New Councillor Induction and Professional Development Guidelines introduce mandatory training for all councillors and mayors.

Council will be required to deliver induction training to councillors within six months after an election and an ongoing professional development program over the term to help councillors acquire and maintain the knowledge and skills necessary to perform their roles.

The training programs must be designed to ensure mayors and councillors understand their

responsibilities and are supported to perform their roles effectively.

Information about councillor participation in induction and professional development activities must be published in council annual reports.

Financial Implications

There will be a cost associated with the Councillor induction training and the ongoing professional development programme. It is envisaged that this training can be conducted by staff in the General Manager’s Directorate or by/or in conjunction with members of Council’s Code of Conduct Review Panel or Council’s external lawyers.

The cost of investigating Code of conduct complaints in the most recent reporting period

(1 September 2017 to 31 August 2018) was $1,469 including a costing of staff time.

Statutory and Policy Compliance Implications

As set out in the Report.

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.3

Report No. 13.3 Lease to AFL Queensland

Directorate: General Manager

Report Author: Paula Telford, Leasing and Licensing Coordinator

File No: I2019/175

Summary:

AFL Queensland holds a lease, under holding over provisions, for office and storage space at the Multi-Purpose Facility at the Cavanbah Centre 349 Ewingsdale Road Byron Bay. AFL Queensland has requested a new lease to allow for continuation of their regional AFL office in Byron Bay.

Council is proposing a new five (5) year lease to AFL Queensland, with rent commencing at $14,700 (excl GST) per annum. The new lease will be negotiated on the same terms as the current lease with one exception that AFL is provided with free use of a meeting room, when available, for two hours per month instead of fifteen occurrences per year.

RECOMMENDATION:

1. That Council, authorise the General Manager, to negotiate a lease to AFL Queensland for 40m² of office and storage space at the Multi-Purpose Facility at the Cavanbah Centre 349 Ewingsdale Road Byron Bay on the following terms:

a) Term five (5) years;

b) Annual rent to commence at $14,700 and thereafter increased at each anniversary by CPI all groups Sydney for the term of the lease;

c) All lease preparation costs to be met by the Lessee;

d) Rent to include the cost of utility outgoings including rates, electricity and water;

e) Rent to include free use of a meeting room, when available, up to two hours per month otherwise the standard free for use of indoor facilities must be paid;

f) Security call-outs caused by the Lessee to be paid by the Lessee;

g) Lessee to have ancillary use of change rooms, toilets and shared office kitchen; and

h) Wet weather and urgent indoor access by the Lessee will be dependent on availability of existing bookings.

2. That Council authorise the publication of the proposed grant of a five (5) year lease to AFL Queensland for a period of 28 days seeking public comment.

3. That in the event no submissions are received, that Council delegate to the General Manager the authority to enter into the lease referred to in 1 above.

4. That if submissions are received that a new report be brought back to Council.

REPORT

AFL Queensland currently holds a lease, under holding over provisions, for the use and occupation of office and storage space at the Multi-Purpose Facility (‘the Facility’) at the Cavanbah Centre. AFL Queensland has requested a new lease to continue their regional office in Byron Bay.

A failure by Council to appoint a Facility manager following a competitive tender process and expression of interest with PCYC NSW lead to Council engaging SGL Consultants for advice on the future operations of the Facility. The Consultants recommended that Council setup a direct management model whereby Council retained control of the facility and determine its use.

The model permits Council to lease specific sites in the Facility for sporting, cultural and commercial uses. As a result Council directly negotiated a lease with AFL Queensland for office and storage space to start-up a regional AFL office in Byron Bay in 2013.

Community land and Plan of Management:

The Byron Regional Sports and Cultural Complex known as the Cavanbah Centre is located on Lot 3 DP 706286, 349 Ewingsdale Road Byron Bay, being Council owned land classified as community land.

The Plan of Management Community Land – Cavanbah Centre categorises the Multi-Purpose Facility for general community use and expressly provides for the granting of a lease. Core objectives of general community use to promote, encourage and provide use of the land and facilities is compatible with use of part of the Facility for the purpose of a regional AFL Queensland office to support the development of community football networks, leagues and clubs in the region.

Proposed Lease:

Council is proposing to grant a five (5) year lease to AFL Queensland for permitted use of 40m² of office space and storage space in the Facility.

Terms of the lease to provide for:

a) Term five (5) years;

b) Annual rent to commence at $14,700 and thereafter increased at each anniversary by CPI all groups Sydney for the term of the lease;

c) All lease preparation costs to be met by the Lessee;

d) Rent to include the cost of utility outgoings including rates, electricity and water;

e) Rent to include free use of a meeting room, when available, up to two hours per month otherwise the standard free for use of indoor facilities must be paid;

f) Security call-outs caused by the Lessee to be paid by the Lessee;

g) Lessee to have ancillary use of change rooms, toilets and shared office kitchen; and

h) Wet weather and urgent indoor access by the Lessee will be dependent on availability of existing bookings.

In accordance with the Plan of Management, the above terms reflect the interest of Council and the public ensuring proper management and access to the facility.

Direct negotiation:

Council is permitted to directly negotiate following an assessment of an applicant and its business plan, a quantification of economic benefits and an assessment of the market value of the rent that results in an equal or better outcome to Council than running a competitive process.

Council considers that advantages to the Byron community in having the North Coast regional AFL Queensland office located at the Cavanbah Centre provides sufficient economic and social benefits to the community that leads to an equal or better outcome to Council then running a competitive process.

Asset management:

The PoM requires that any lease let over the Facility ensures proper maintenance of the Facility. Terms of the proposed lease will require the Lessee to be responsible, at its cost, for pest control, cleaning, all approved additions and alterations and to return the premises, on termination of the lease, to the state it was in prior to the lease. The Lessee is also responsible for the cost of security callouts caused by the Lessee, the cost of replacing keys and attend induction sessions for Facility access.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective	L2	CSP Strategy	L3	DP Action	L4		OP Activity
Community Objective 1: We have infrastructure, transport and services which meet our expectations	1.2	Provide essential services and reliable infrastructure which meet an acceptable community standard	1.2.9	Develop capital upgrades, renewal and enhancements works program for buildings- including community buildings, public toilets, emergency services, sports club facilities and Council operations buildings (SP)		1.2.9.3	Consult with user groups to establish user agreements, leases, licenses and Plans of Management

Legal/Statutory/Policy Considerations

s47 Leases, licences and other estates in respect of community land—terms greater than 5 years

(1) If a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must:

(a) give public notice of the proposal (including on the council’s website), and

(b) exhibit notice of the proposal on the land to which the proposal relates, and

(c) give notice of the proposal to such persons as appear to it to own or occupy the land adjoining the community land, and

(d) give notice of the proposal to any other person, appearing to the council to be the owner or occupier of land in the vicinity of the community land, if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person’s enjoyment of community land.

(2) A notice of the proposal must include:

• information sufficient to identify the community land concerned

• the purpose for which the land will be used under the proposed lease, licence or other estate

• the term of the proposed lease, licence or other estate (including particulars of any options for renewal)

• the name of the person to whom it is proposed to grant the lease, licence or other estate (if known)

• a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice.

(3) Any person may make a submission in writing to the council during the period specified for the purpose in the notice.

(4) Before granting the lease, licence or other estate, the council must consider all submissions duly made to it.

(5) The council must not grant the lease, licence or other estate except with the Minister’s consent, if:

(a) a person makes a submission by way of objection to the proposal, or

(b) in the case of a lease or licence, the period (including any period for which the lease or licence could be renewed by the exercise of an option) of the lease or licence exceeds 21 years.

(6) If the council applies for the Minister’s consent, it must forward with its application:

• a copy of the plan of management for the land

• details of all objections received and a statement setting out, for each objection, the council’s decision and the reasons for its decision

• a statement setting out all the facts concerning the proposal to grant the lease, licence or other estate

• a copy of the public notice of the proposal

• a statement setting out the terms, conditions, restrictions and covenants proposed to be included in the lease, licence or other estate

• if the application relates to a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 21 years, a statement outlining the special circumstances that justify the period of the lease or licence exceeding 21 years

• a statement setting out the manner in which and the extent to which the public interest would, in the council’s opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council’s opinion, be adversely affected by the granting of the proposed lease, licence or other estate.

(7) On receipt of the application, the Minister must request the Director of Planning to furnish a report concerning the application within such period as the Minister specifies.

(8) After considering the application and any report of the Director of Planning, the Minister, if satisfied that:

(a) subsections (1), (2) and (6) have been complied with, and

(b) such consent would not contravene section 46, and

(c) in all the circumstances, it is desirable to grant consent,

may consent to the granting of a lease, licence or other estate in respect of the whole or part of the land to which the application relates, subject to such terms and conditions as the Minister specifies.

(8AA) The Minister may consent to a lease or licence referred to in subsection (5) (b) only if the Minister is satisfied that there are special circumstances that justify the period of the lease or licence exceeding 21 years.

(8A) On request by any person, the Minister must provide that person, within 14 days of that request, with a written statement of reasons for consenting to, or refusing to consent to, the granting of a lease, licence or other estate in accordance with subsection (8).

(9) The Minister’s consent is conclusive evidence that the council has complied with subsections (1), (2) and (6).

(10) For the purposes of this section, any provision made by a lease or licence, or by an instrument granting any other estate, in respect of community land, according to which the council:

s47A Leases, licences and other estates in respect of community land—terms of 5 years or less

(1) This section applies to a lease, licence or other estate in respect of community land granted for a period that (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) does not exceed 5 years, other than a lease, licence or other estate exempted by the regulations.

(2) If a council proposes to grant a lease, licence or other estate to which this section applies:

(a) the proposal must be notified and exhibited in the manner prescribed by section 47, and

(b) the provisions of section 47 (3) and (4) apply to the proposal, and

(c) on receipt by the council of a written request from the Minister, the proposal is to be referred to the Minister, who is to determine whether or not the provisions of section 47 (5)–(9) are to apply to the proposal.

(3) If the Minister, under subsection (2) (c), determines that the provisions of section 47 (5)–(9) are to apply to the proposal:

(a) the council, the Minister and the Director of Planning are to deal with the proposal in accordance with the provisions of section 47 (1)–(8), and

(b) section 47 (9) has effect with respect to the Minister’s consent.

Financial Considerations

An independent market valuation report provided by Valuers Australia sets the initial rent on commencement of the lease at $14,700 (excl GST) per annum and increased thereafter at the start of each year by CPI all groups Sydney. Over the term of the lease Council will collect $73,500 (excl GST) plus CPI increases.

The lease will provide for the cost of utility outgoings including rates, electricity and water to be included in the lease rent as well as the free use for two hours per month of an available meeting room, otherwise the Lessee must pay to use all indoor facilities as per Council’s fees and charges.

Reviewed by Manager Finance: ☐

Consultation and Engagement

A lease over community land for a term of five years will require Council to publically advertise the proposed lease for at least 28 days and give notice to adjoining neighbours and other interested parties in accordance with s47(2)(a) of the Local Government Act. Should any submissions be received than Council must consider all submissions prior to granting the lease. Should Council recommend the propose lease be granted, Staff will advertise in the lease in the local newspaper and conduct a letter box drop.

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.4

Report No. 13.4 Lease to the Bangalow Community Children's Centre Inc

Directorate: General Manager

Report Author: Paula Telford, Leasing and Licensing Coordinator

File No: I2019/188

Summary:

The lease held by the Bangalow Community Children’s Centre Incorporated (the Children’s Centre) expires on 30 April 2019. Resolution 18-781 authorised Council staff to commence negotiations with the Children’s Centre for two successive five (5) year leases.

As a result, Council publically advertised the proposed two successive leases and received two submissions. This report requests that Council consider both submissions received before determining whether to grant two successive five (5) year leases to the Children’s Centre.

RECOMMENDATION:

1. That Council, delegate to the General Manager the authority to enter into two (2) successive five (5) year leases with the Bangalow Community Children’s Centre Inc for the purpose of early childhood education and care under the following terms:

a) annual rent payable by the Lessee commence at the value of minimum Crown rent as determined by clause 38 of the Crown Land Management Regulations 2018 (NSW) excluding GST;

b) the Lessor provide subsidised rent to the value of market rent as calculated at 6% of the land Unimproved Capital Value less rent payable by the Lessee set at $20,570 per annum excluding GST;

c) all lease preparation and registration costs to be met by the Lessee;

d) the Lessee to pay all outgoings other than annual general land rates; and

e) the Lessee carry out all maintenance, except structural building maintenance, at the Lessee’s cost.

2. That, on granting the lease, Council provide for a section 356 of the Local Government Act 1993 (NSW) financial assistance donation to the value of $20,570 and provide details of the donation in Council’s Operational Plan, Budget and that the donation is provided to the Bangalow Community Children’s Centre Inc for subsidised rent.

3. That, on granting the lease, Council authorise the General Manager to affix the Council Seal on the Lease in accordance with clause 400 of the Local Government (General) Regulations 2005 (NSW).

REPORT

Council resolved (18-781) at its 18 December 2018:

That Council authorise the General Manager, to negotiate two new successive leases with the Bangalow Community Children’s Centre as follows:

a) For a term of five (5) years each lease;

b) Annual rent be initially set at the value of minimum Crown and thereafter increased by CPI all groups Sydney for the term of each lease;

c) All preparation costs and registration costs to the met by the Lessee;

d) The Lessee pay all outgoings other than annual general land rates;

e) All maintenance to be carried out by the Lessee at the Lessee’s cost; and

f) The Lessor provide subsidised rent to the value of market rent as calculated at 6% of the land Unimproved Capital Value less rent payable by the Pre-School set a the value of minimum Crown rent.

In accordance with s47A(2) of the Local Government Act 1993 (NSW), Council advertised the proposed two successive leases to the Bangalow Community Children’s Centre Incorporated (‘the Children’s Centre’) from 10 January to 7 February 2019.

Council received two submissions to the proposed leases and are summarised in the below table:

Issue	Council response
Concerned that public amenity to the laneway behind properties on Palm Tree Crescent Bangalow would be affected by the proposed lease. (E2019/7187)	Council reviewed the proposed lease area and confirmed that the public access way behind properties 3 to 5 Palm Tree Crescent Bangalow is excluded from the proposed leased area.
Requested confirmation as to why a five year lease, the current value of Crown minimum rent and the unimproved capital value of the land used to determine the market value rent. (E2019/9488)	The report to Council’s 13 December 2018 meeting set out: · A five year lease provides the Pre-School with the security to be eligible for applicable State and Federal grant funding. · Minimum Crown rent is set by legislation in clause 38 of the Crown Lands Management Regulations 2018. The current value is set at $490 per annum exclusive of GST. · The Unimproved Capital Value (‘UCV’) of the land as provided by the Valuer General is $351,000. Council determined the value of market rent at 6% of the UVC being $21,060. Council to provide subsided rent to the value of $21,060 less $490 totalling $20,570.
Requested advice on whether parents of children attending the Centre benefit from reduced fees. (E2019/9488)	Council’s Children’s Services Policy (2017) acknowledges the strong evidence indicating significant social and economic benefits that accrue to individuals, families and communities from inclusive access to quality Early Childhood Education and Care (ECEC) and other services that support children. The Objective of Council’s Children’s Services Policy are: · To enable Council to promote, plan and provide for the needs of children in an effective manner. · To outline Council’s commitment to support and partner with the community in response to identified needs for inclusive, quality Children’s Services in the Byron Shire. · To highlight considerations relevant to the planning of Children’s Services in the Byron Shire. · To specify considerations relevant to the planning of Early Childhood Education and Care services in the Byron Shire. As at 2017, Council supports 10 not for profit Early Childhood providers within the Shire through the provision of land, buildings, management and support. This enables 263 licensed places to be provided to the local community and over 500 individual children to access education and care. The fee structure is the responsibility of each service provider and Council is not able to comment on the individual service fee structure or budget processes.

Council must consider both submissions received in deciding whether or not to grant the Children’s Centre two successive five (5) year leases for the purpose of early childhood education and care.

The requirement of two successive five year leases, instead of one ten year lease, overcomes constraints imposed by the NSW Land Registry Services. A lease for a term greater than five years requires a subdivision of the land so that the leased area is within its own lot and deposited plan. A lease for a term of no more than five years only requires a compiled plan to enable the lease to be registered on the land parcel.

Council may only grant successive leased terms to a maximum term of 21 years. The proposal to grant two successive five (5) year leases is expressly authorised by the POM.

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective

CSP Strategy

DP Action

OP Activity

Community Objective 2: We cultivate and celebrate our diverse cultures, lifestyle and sense of community

2.2

Support access to a wide range of services and activities that contribute to the wellbeing of all members of the Byron Shire community

2.2.2

Support and facilitate accessible, high quality early childhood education and activities

2.2.2.1

Improve direct service provision and sector development to provide quality accredited early childhood education