Agenda of Ordinary (Planning) Meeting - Thursday, 10 August 2023

CONFLICT OF INTERESTS

What is a “Conflict of Interests” - A conflict of interests can be of two types:

Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Code of Conduct for Councillors (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in the Code of Conduct for Councillors.

Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).

Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:

· The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or

· The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

N.B. “Relative”, in relation to a person means any of the following:

(a) the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;

(b) the spouse or de facto partners of the person or of a person referred to in paragraph (a)

No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:

· If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or

· Just because the person is a member of, or is employed by, the Council.

· Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.

Disclosure and participation in meetings

· A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

· The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:

(a) at any time during which the matter is being considered or discussed by the Council or Committee, or

(b) at any time during which the Council or Committee is voting on any question in relation to the matter.

No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

Non-pecuniary Interests - Must be disclosed in meetings.

There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with. Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:

· It may be appropriate that no action be taken where the potential for conflict is minimal. However, Councillors should consider providing an explanation of why they consider a conflict does not exist.

· Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa). Care needs to be taken when exercising this option.

· Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)

· Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as of the provisions in the Code of Conduct (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters

(1) In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:

(a) including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but

(b) not including the making of an order under that Act.

(2) The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.

(3) For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.

(4) Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.

(5) This section extends to a meeting that is closed to the public.

OATH AND AFFIRMATION FOR COUNCILLORS

Councillors are reminded of the oath of office or affirmation of office made at or before their first meeting of the council in accordance with Clause 233A of the Local Government Act 1993. This includes undertaking the duties of the office of councillor in the best interests of the people of Byron Shire and the Byron Shire Council and faithfully and impartially carrying out the functions, powers, authorities and discretions vested under the Act or any other Act to the best of one’s ability and judgment.

BYRON SHIRE COUNCIL

Delegates' Reports 12.1

Delegates' Reports

Delegate's Report No. 12.1 ALGA [Australian Local Government Association] Conference

File No: I2023/1039

Delegates Report - ALGA [Australian Local Government Association] Conference Canberra, 13 to 16 June 2023 including a Regional Forum and a day session of the reconstituted ACLG addressed by Anthony Albanese PM.

Kristy McBain MP Minister for Regional Development Local Government and Territories and ex-Mayor of Bega Council opened the 13 June 2023 Regional forum saying that usually there is an issue that brings people to wanting to be in Local Government. She highlighted current LG issues such as labour and workforce shortages, health care issues and the current reviewing of Financial Assistance [FAG] grants.

Darren Chester Shadow Minister for Regional Development, Local Government and Territories stated that:

“Kristy needs support when she addresses the Financial Review committee because greater resources are needed. We should not talk Australia down and leaders need to provide hope.

We should celebrate our wins and keep fighting for community because we all have a short time to get things done.

Politics is always about the numbers. Connectivity and transport regionally need more support and there needs to be more consistency because each new government tends to change the regional funding equation. Funding should be allocated as a rolling programme of funding rather than the current grant based situation.

The allocated model takes politics and marginal seat allocations out of the equation.

It is more sustainable to encourage young people to stay in regional areas.

Local government elected officials need to be interested in people's stories”.

One of the Delegates noted how degrading it is to be pleading for funding for infrastructure upgrades such as swimming pools and skate parks and that towns need to offer good facilities to keep people regional.

Increasing Resilience to Natural Disasters Forum:

Collin Wood from Shoalhaven Council stated that 80% of the Shire was burnt in the 2019 black Saturday bushfires including 312 dwellings mainly through ember damage. The Resilient Building Council was set up after that and has apps which are being developed to increase the resilience of homes and possibility to decrease insurance premiums. One can get a certification for the Banks and insurance.

The ‘Fortis’ house project came out of that and was developed in response to community requests for help to build better in response to the bushfires and subsequent floods to help recovering communities rebuild. The project has delivered house designs and a set of building principles for extreme weather and disaster resilience, sustainability, self-sufficiency and quality. ‘Fortis’ house sets a new benchmark for better building to protect people, homes, communities and the environment no matter where you live. Detailed specifications are provided and a Fortis House video tells how to design a house resistant to fires, floods and cyclones and can be built mainly off site. ‘Fortis’ design, construction methods, materials choices, landscaping and maintenance measurably reduces the risk of building loss and damage from extreme weather and disasters some of the features include sealing gaps, set back glazing and perimeter screens, tie down roof security, steel framing, concrete or hardwood internal flooring and anchored rainwater tanks, non-combustible insulation etc.

On another tack we heard of monitoring floods with fixed cameras taking a shot every 15 minutes at flooding hot spots which are interpreted with AI.

David Williams CEO of the planning institute of Australia [PIA] said there are 13,691 Planners in Australia. There is a shortfall, especially regionally, and in fact there is a global skills shortage. The NSW Government is currently providing a $1.6 million incentive programme for planning cadet-ships up to $25,000 each. There is very low high school awareness of Planners although the Government is working with geography students and often Architects who can't get work to take up the slack.

117 Councils in Australia have declared a climate emergency - representing 45% of the Australian population.

Liz Ritchie CEO of the Regional Australia Institute is asking leaders to shift their gaze away from Metro-centric Governments to more of a regional strategy such that every Minister needs to understand regional imperatives and potential.

In the current economic down-turn more people are looking outside cities, in fact one in five are considering moving to regions.

Regional growth has not been planned for in any national population plan and there is a need for adequate soft and hard infrastructure to empower regions to thrive.

‘Rebalance the Nation’ is a vision for living more prosperously in regions. Based on 10 years of research it’s a set of 20 targets across five important pillars to improve life in regional Australia so that more Australians can call the regions home.

More information on this can be found at rebalancethenation.com.au

Catherine King the Minister for Infrastructure Regional Development and Local Government:

Talked about the housing crisis, skills shortages and that local Gov local Councils employed 190,000 people and alluded to $4 billion to be spent on reforms of education skills and training.

She spoke of trust:

“Trust is perhaps the most valuable commodity. If we don't trust each other, then we get nothing done, and we don't deliver for the communities or the nation as a whole. And there is a lot to deliver. Trust is one of the foundation stones for strong productive and enduring partnerships along with transparency and integrity. We are committed to restoring that transparency and integrity work through our policies and programmes. The Albanese government is reinvigorating its relationship with local government and has revived the Australian Council of Local Government. In genuine partnerships with local governments and communities the Australian government will focus on a purposeful, more coordinated approach to regional development that considers our people, places, services and the industries that help our economies grow. That's why we delivered funding for the regional precincts and partnerships programme in our first budget.”

Councillor Linda Scott President of ALGA:

“Local solutions are needed for national challenges”.

She revealed that there were 1100 attendees at the Conference and that ALGA [which represents 537 Councils] is advocating for a doubling of FAG Grants to more than 1% with them being untied so that Councils can use them more flexibly rather than the existing narrow funding guidelines.

“Many motions brought at the conference address a shortfall of funding in the financial assistant grants advocating for the grants to be 1% rather than 0.5% of Commonwealth tax revenue, a historical trough.

1% would take the funding to $6 billion per year.

0.53% equals $2.9 billion whilst Local Government financial management responsibility is estimated to be more in the vicinity of $ 8.5 to $11.3 Billion in capital and operating maintenance per annum Australia wide.

Local government roads make up 70% of the Australian road network and are not properly resourced.

With respect to affordable housing there is a shortage nationally such that one in 15 households or 640,000 households are in housing stress nationally. 9 out of 10 councils are facing skills shortages especially town planners, engineers and environmental health officers. In 2022 there were 46 declared disaster areas involving over 300 local government areas. Councils are being treated as delivery bodies and not autonomous and democratic. We need to learn from each other and share stories to and with the community”.

She praised the $200 million disaster mitigation fund and stated that round two of this fund opens soon.

Panel of the Future of Local Government:

Mention was made of encouraging youth into Local Government by the Foundation for Young Australians [FYA] CEO Nick Moriatis. https://www.fya.org.au/staff/nick-moraitis-2/

Also mentioned was that if Councils could impose local taxes there may be more likelihood of improved fiscal situations throughout the country. Mention was made of the current 75% of United Kingdom Councils which are dipping into their cash reserves, in particular the town of Woking 30 km from Central London with a 11,000 person ratepayer base currently with a $1.2 billion deficit!

Excerpts from the Climate Change and Energy minister the hon. Chris Bowen’s Forword to the Australian Local Government Year book released for ALGA 2023.

“Action on climate change is everyone's business.

The scale of the transformation to a clean energy future is enormous.

It is the biggest change in our economy since the Industrial Revolution and is happening quicker than the Industrial Revolution did. The solution must therefore be a whole of society effort and the participation and cooperation of Australia's 566 local governments is vital.

Federal state and territory governments have much to gain from local government partnerships driving the many activities that are crucial for Australia's energy future. The Australian government supports projects that can speed up these efforts.

In decarbonization local action plans are being developed along with emissions reduction targets.

We have provided for example funding for a trial to instal 50 EV chargers on Street poles, starting with nine NSW local government areas for EV owners who live in apartments with no on- site EV charging. Each charger can service 10 households. The trial could see our government roll out more EV charges connected to street poles across the country. The labour government is also funding 400 community batteries across Australia to help lower household electricity bills, deliver reliable renewable energy and ease the pressure on our power grid. This is in addition to funding 85 solar banks for more than 25,000 households that are locked out of rooftop solar, like renters and low income households.

In terms of adaptation and resilience, local governments are modifying planning and local infrastructure to reduce the severity of heat waves in urban areas.

Land is being restored with native plants to tackle severe erosion and indigenous landcare knowledge is being tapped into to improve the health of wetlands.

Local governments are well placed to ensure that our whole of nation adaptation response considers local circumstances and empowers local communities to act.

The Commonwealth government is supporting these efforts, including by raising the minimum energy efficiency standards for new homes.

We are also investing $20 billion through Rewiring the Nation to build the critical infrastructure needed to support the energy grid and to enable local communities around the country to benefit from cleaner and cheaper energy.

To ensure that regional communities can be actively involved with the development of transmission we're reforming the regulatory investment test for transmission so that route selection can better accommodate community interests.

We are also scoping a national climate risk assessment, a common national approach to understanding climate risks for decision makers across all jurisdictions. Our investment of $8.2 million will further help to manage risks to public infrastructure, and make climate risk training and guidance available to all levels of government.

I commend the ALGA for making climate change a policy priority and I look forward to continuing the association through the Energy and Climate Change Ministerial Council which meets 4 times a year”.

Signed: Cr Peter Westheimer

BYRON SHIRE COUNCIL

Delegates' Reports 12.2

Delegate's Report No. 12.2 Local Government NSW Water Conference 27-28 June 2023

File No: I2023/1114

Thanks Council for sponsoring me to attend this Water Management Conference, run by LGNSW in Parkes.

We met on Wiradjuri country and local elder Geoff Anderson welcomed us.

The event was hosted by Parkes Shire Council. Mayor Ken Keith praised his Local Government Area, which is famous (i) for its 60-year-old radio telescope, (ii) for hosting annual Elvis festivals, and (iii) for being on the intersection of the north-south inland rail route with the east-west one. The Conference dinner was entertained by a great Elvis impersonator who lives locally.

Parkes is one of NSW’s “Special Activation Precincts” and is also a National Logistics Hub. The rail route east to Sydney only allows single-stacked containers so Parkes will double stack them for the route west.

Contributions to Conference discussions came from many sectors of the water industry, but especially those involving water and sewage treatment. Presenters included State Departments and bodies; Federal and State MP’s; Councils; industry representative bodies; researchers; and industry experts.

Costs to the public (i.e. to Council) for me to attend were:

Early bird Conference registration $675

My car to & from Ballina $68

Taxis from & to car $45

Flights to & from Sydney $315

Car hire $200

Car Insurance $102

Hire car petrol - Sydney to Parkes $93

Accommodation $209

Total $1,707

... and I am grateful for the knowledge I acquired.

TAKE-HOME MESSAGE

The biggest take-home message is that Treatment Plant Operators are undervalued, and hence hard to find. This raises the question for me of whether we pay Byron operators at minimum rates, or at rates commensurate with the high cost of living in our area. This becomes pertinent when Council is faced with an emergency, like the floods of February and then March in 2022. The sword is double edged: we want our operators to be local, so that they can actually get to the sites they operate, even when comms are down and access is cut. This means living locally, so that water supply is not prejudiced by lack of staff and so that sewage continues to be collected and treated, rather than overflowing raw into the environment (including into the suburbs from which it should have been pumped away).

I have posed a Question with Notice on this matter and hope it appears with its Answers in this Agenda.

OTHER THEMES

Off-stream storage is a common water supply solution. Mid Coast Council operates several, as described in their IWCMS (Integrated Water Cycle Management Strategy):

https://haveyoursay.midcoast.nsw.gov.au/our-water-our-future

Within Byron Shire, our Water & Sewer Advisory Committee is asking Council to investigate such a proposal for Mullumbimby. The current no-storage system is stretched and will be greatly enhanced with storage.

Benefits of off-stream stored water include it not being subject to high turbidity during floods and not being dependent on long pipelines that are subject to disruption by landslip and gully erosion. Additional benefit comes with local operation not being subject to cyber-security threats to larger entities.

Better Investment: We need to shift from expending 97% on disaster recovery & only 3% on preparation.

PRESENTATIONS

Here are my thoughts on the presentations.

1. Scott Phillips, CEO of LGNSW.

Workforce crisis; climate volatility; local ownership of LWU’s (Local Water Utilities; 89 of them).

2. Tanya Plibersek, federal Minister for Environment and Water (by video).

Murray Darling Basin Plan undermined by some greedy players.

3. Rose Jackson, State Minister for Water plus many other portfolios (by video).

Parliamentary inquiry into LWU’s; Matthews Reforms for non-urban water; no-meter no-pump principle; NRAR is responsible for compliance on water extraction; climate change still needs to be written into regional plans and strategies.

4. Graham Attenborough, Chief Executive Officer, Water, DPE.

12 regional water strategies; Aboriginal Water Strategy with target of 3 GL; operator training; alternative funding models under review by Productivity Commission and by Parliamentary Inquiry.

5. Nick Drull, Atlas Copco, low pressure specialist in municipal wastewater.

70% of an STP’s energy compresses air for aeration; two types of blowers - screw, high speed turbo.

6. Vince Keogh, DPE Manager of Aboriginal Communities W & S Program.

Pprogram aims to provide services equivalent to non-aboriginal communities; compared via bacterial counts, pressure, fault response times, etc; communities near Byron Shire are those of Gundarimba and Cabbage Tree Island.

7. Danielle Francis, Water Services Association of Australia (WSAA).

Aim to improve water services for First Nations remote communities; WA, NT, Qld, SA.

8. Nathan Malcolm, GHD.

Working on landslips in Lismore Shire; duplicating pipeline from the Lachlan River 30km to Parkes.

9. Brie Jowett, Tweed Shire Council.

The Tweed Valley is the largest erosion caldera in the southern hemisphere; dependent on SEQ - 60 border closures during COVID; building back better after 2017 flood meant more resilient in 2022; Uki WTP could not be flood proofed so was made flood resilient, to recover quicker after flooding; Clarie Hall Dam water turbidity at 2,500 NTU during 2022 flood was 10 times more than in 2017; the Dam continues to have elevated turbidity now, 18 months later, probably due to leaching from landslips in the catchment; anecdote from 2022 was their CO₂ supplier preferring to supply a local brewery over Council, without realising the brewery would have no water for beer making if Council had no CO₂; Tumbulgum has its own Emergency Group.

DD comment: Water supply is an essential service and should be given powers accordingly.

10. Marnie Coates, Mid Coast Council.

Mid Coast Water was formed in 1999, wrote its IWCM Strategy in 2008 and revised it in 2016; It became part of Mid Coast Council in 2017; the Nabiac Coastal Aquifer Scheme 2019.

Drought in 2019-20 saw consumption rise to 110%, probably as private supplies ran out; the Manning River had zero flow for 86 days; Council carted water from Tea Gardens to Stroud and Gloucester, and looked at desalination; new approaches are off-stream storages and adaptive flexibility.

DD comment: Off-stream storages are widely used.

11. Tim Lloyd & Rhys Oates, Rous County Council.

Rocky Creek Dam is 200m above sea level; the 2022 flood gave it turbidity of 220 NTU - previous highest was 15 NTU; this creates risks for the treatment plant; other risks were landslip or erosion affecting pipelines; success in 2022 was due to their dedicated team and “a lot of luck”.

DD comments: On-stream dams suffer turbidity; long pipeline routes are at risk during emergencies.

12. Mitch Stace & Chenxi Zeng, Mid Coast Council.

Council operates 14 STP’s; 3 collection systems are vacuum (in low-lying coastal suburbs); their emergency in 2022 was due to lower catchment rain, loss of access became their biggest problem.

13. Brendan Guiney, Executive Officer, Water Services Directorate.

Key roles are to develop technical publications, provide technical advice and assistance to LWU’s, provide a platform for collaboration, advocate as a peak body; strategies include net zero emissions.

topic 2 = circular economy.

topic 3 = training, collaboration.

topic 4 = micro-credentials. These are focused short courses to compliment prior (tertiary) training; currently offering Aqua Card and Brown Card.

14. Joey, water leak detection dog, Sydney Water.

Demonstration in a nearby park; water saved due to detection dog program, in combination with other methods; each dog and handler cover about 10km of pipeline or channel per day.

15. Grant Leslie, Director, Balmoral Group.

The water industry suffers from being invisible; ABS data indicates 1,200 W&WW Operators in NSW, 57% are older than 45, 94% are male, 7% are indigenous.

Churn rate (staff turnover) is 19% / year; estimated 30% have no formal training; need to pay more.

16. David Kirby, General Manager, Brewarrina Shire Council.

Need to pay operators better, including above awards.

17. Melissa Wortman, Senior Advisor DPE, <water.lwutraining@dpie.nsw.gov.au>.

They have an Action Plan and are offering $8m worth of fee-free training this year.

They are investigating pay and conditions. As an illustration, Electricians have minimum standards (expressed through mandatory licensing) and they are generally better paid than W&S Operators. In the 1980’s W&S Operator was deemed a trade.

18. Danielle Francis, WSAA.

Staff shortages impact staff through increased workloads, especially in emergencies; an issue here is whether to lobby at State or national level.

19. Stuart Khan, University of NSW.

Bushfire is the other extreme / emergency impacting water and sewer; roads and comms get cut; catchments are different after fire; emergency help is sought from RFS, SES and ex-employees; resilience can be enhanced by protecting assets, including backup and redundancy, well-trained and highly prepared staff, mutual aid networks (knowing who to call).

20. Steph Cooke, Shadow Minister for Water (and Crown Lands); MP for Cootamundra

We need to shift from spending 97% on disaster recovery & 3% on preparation; in NSW 1.85 million people depend on LWU’s.

21. Cate Faehrmann, MP NSW Upper House (by video).

The former Government overcommitted to dams, including failed pork-barrel projects like Whyangla; analysis for Dungowan Dam showed a return on investment of 9c per dollar.

22. Bruce Logan, Director of W&S, Tamworth Regional Council.

Dungowan Dam at 6.3 GL supplies 40% of the Shire’s demand; the project to increase it to 22.5 GL was cancelled in May.

23. Graham Attenborough, Chief Operating Officer, Water, DPE.

He previously managed the twenty dams supplying Sydney’s water; yields from new dams are limited by regulation of flows; we need to look at the “less sexy” water supply options.

24. Stuart Khan, University of NSW.

Chaffey Dam was raised from 62 GL to 100 GL at a cost of $50m, with Council paying $4m; 11.5 GL is reserved for Tamworth’s needs; further changes will reduce the security of other users (irrigators).

25. Natasha Steele, Manager at Cyber Security NSW.

26. Andrew Crakanthorp, Riverina Water.

The six pillars of cyber security are: lead, prepare, prevent, detect, respond, recover; threats to water management include to SCADA systems.

Wagga was subject to cyberattack in 2019; the attacker took Admin control of a laptop that was running overnight; thankfully IT had an off-site backup; W&S are critical infrastructure.

27. Matt Coulton, GM of Agriculture & Water, Bureau of Meteorology.

Strong warming trend in temperature; rainfall is dominated by variability rather than by a trend; but there is reduction in cool-season rainfall plus increase in warm-season; climate change is integrated into yield analyses in Western Australia.

Australia Water Outlook is found at: AWO.bom.gov.au

28. Jane Shepherd, Director LWU, DPE.

Town Water Risk Reduction Program - Phase 2; ‘section 60’ Application.

29. Corienne Cheesman, CEO Australian Water Association.

AWA collaborates through its members and volunteers.

30. Allan Gear, Group Director ....

“Net Zero Councils” has a Sewage and Water Treatment Efficiency Toolkit.

31. Lisa Miller, Office of Energy & Climate Change, <scc@environment.nsw.gov.au>.

The Office has no money to distribute but offers expertise to Councils and Joint Organisations; this includes on pathways to renewable energy financing; other guides including Beam Solar Tool; “Regional Council Sewage and Water Treatment Energy Efficiency Guide” of 12 August 2022.

PRESENTATIONS

There were dozens of exhibits with interesting ideas and products.

NEXT YEAR: the next conference will likely be held in Goulburn on 9-11 September 2024.

Signed: Cr Duncan Dey

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.2

Report No. 13.2 Five year lease to Mullumbimby Community Preschool Association Incorporated

Directorate: General Manager

Report Author: Paula Telford, Leasing and Licensing Coordinator

File No: I2023/1053

Summary:

The Mullumbimby Community Preschool Association Incorporated requests a five-year lease for continued occupation of part Folio 2/1227659 being 90 Station Street, Mullumbimby. This Report recommends the lease is granted.

RECOMMENDATION:

1. That Council delegate the General Manager to enter into a Lease with the Mullumbimby Community Preschool Association Incorporation on the following terms and conditions:

a) a ground lease only over part Folio 2/1227659 for the purpose of a preschool,

b) term of five-years no option or holding over,

c) base rent in the lease to be set at $490 (excl GST) per annum payable by the Lessee with base rent increased annually thereafter by Consumer Price Index All Groups Sydney,

d) Council to record a rent subsidy of $38,010 (excl GST) per annum as a donation under section 356 of the Local Government Act in accordance with Policy Children’s Services 2019,

e) Council to fully subsidise annual rates and fixed charges payable on Folio 2/1227659 in accordance with Policy Section 356 Donations Rates and Charges, and

e) Council to waive the Lease preparation fee payable by the Lessee to the value of $610 (incl GST) as set by Council’s 2023-2024 fees and charges.

Report

The Mullumbimby Community Preschool Associated Incorporated (‘the Preschool’) occupies part of Folio 2/1227659 (‘the Land’) being 90 Station Street Mullumbimby.

The Preschool is an accredited early childhood provider (SE-00008495) and not-for-profit organisation providing service-based childcare in Mullumbimby.

The Preschool requests a 5-year lease to remain in occupation of the Land.

History

In 1992 Council entered into a lease of the Land with the then landowner, NSW State Rail Authority, for the purpose of a Preschool. In the same year, the Preschool was gifted a building and paid to relocate the building, under development consent 92/454, to the southern end of the Land.

In 1995 Council purchased the Land from the State Rail Authority and classified the Land as operational land.

The Preschool has operated on the land since 1992. The Preschool has presented Council with sufficient evidence to satisfy Council that the ownership of the building and other improvements on the Land vests solely in the Preschool.

As a result, the proposed 5-year Lease is a Lease to occupy the ground only. The leased land to be the area of land that is currently enclosed for use as a preschool.

Direct negotiation

Council may directly negotiate the proposed 5-year Lease with the Preschool in accordance with s55(3)(n)(i) of the Local Government Act 1993 because the value of the contract over the term is less than the prescribed statutory value.

As the Land is classified as operational land, mandatory community consultation provisions in the Local Government Act do not apply to this lease.

Term of proposed lease

The proposed Lease over part of the Land is limited to 5-years in accordance with ss 23F, 23G of the Conveyancing Act 1919 (NSW). A longer-term Lease will require a registered subdivision of the Land that identifies the leased land in its own unique Folio number.

Rent and fixed charges subsidised

Council’s Children’s Services Policy guides the ongoing support, by Council, to the Shire’s Community Pre-schools by providing Council owned or managed land or buildings for the delivery of services to children aged 3 – 5 years at a nominal cost. In accordance with that Policy the proposed lease is to be offered on the following terms:

a) annual rent to be subsidised to the value of minimum Crown rent currently $490 (exclusive of GST) per annum. Annual rent to be increased, on each anniversary of the commencement date, by Consumer Price Index All Groups Sydney,

b) Council to record subsidised rent being $38,010 (excluding GST) per annum as a section 356 of the Local Government Act donation, and

c) annual fixed rates and charges on the Land to be fully subsidised by Council via a section 356 of the Local Government Act donation in accordance with Council Policy Section 356 Donations Rates and Charges 2021.

Outgoings

The Preschool must provide proof of public liability insurance cover to the minimum value of $20,000,000 and professional indemnity insurance.

The Preschool is solely responsible for its building and improvements on the Land and must keep its building and improvements at a standard required to retain its early childhood service accreditation.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective

CSP Strategy

DP Action

Code

OP Activity

2: Inclusive Community
We have an inclusive and active community where diversity is embraced and everyone is valued

2.4: Enrich lifelong learning and education and support services to help young people thrive

2.4.5

Education - Develop partnerships with educational institutions across all stages of the learning spectrum to ensure that lifelong learning is available to the community

Recent Resolutions

· Nil.

Legal/Statutory/Policy Considerations

Local Government Act 1993

s55 Requirements for tendering

(3) This section does not apply to the following contracts

(n) a contract involving an estimated expenditure or receipt of an amount of—

(i) less than $250,000 or another amount as may be prescribed by the

regulations, or

(ii) less than $150,000 or another amount as may be prescribed by the regulations for a contract involving the provision of services where those services are, at the time of entering the contract, being provided by employees of the council,

Conveyancing Act 1919

s23F Certain transactions to refer to lots shown on current plan

(1) This section applies to the following transactions—

(b) the lease of part of an existing lot,

s23G Exceptions to sec 23F

Section 23F does not apply to the following transactions—

(a) a transaction that relates to the whole of the land comprised in a folio of the Register kept under the Real Property Act 1900,

(d) a transaction that comprises—

(i) the lease of part of an existing lot for a period that, including the period of any option to renew, does not exceed 5 years, or

(e) a transaction that comprises—

(i) the lease of the whole or any part of a building, or

Policy Children’s Services 2019

1. Objectives:

· 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.

4.1 Background:

As stated in the Byron Shire Community Strategic Plan 2028, Council values and works towards enhancing resilient, creative, and active communities and a sustainable and diverse economy that provides innovative employment and investment opportunities.

Council acknowledges that strong evidence indicating significant social and economic benefits that accrue to individuals, families and communities form inclusive access to quality Early Childhood Education and Care and other services that support children…

Council recognises that Local Government is well placed to permit a range of important functions in Children’s Services…

4.2 Policy Principles:

4.2.3 Infrastructure

· Local Government is best placed to

o plan for, deliver and manage essential local infrastructure,

o to lead and influence local and regional planning process according to the needs and expectation of local communities, and

o planning priorities for community quality of life.

Financial Considerations

An independent market rent valuation for the Land provided by Valuers Australia Pty Ltd set market rent at $38,500 (excl GST) per annum.

This report recommends the Preschool pay base rent commencing at $490 (excl GST) per annum with rent increased annually thereafter on each anniversary of the lease commencement date by Consumer Price Index all groups Sydney.

An application of a full rent subsidy by Council (in lieu of charging full market rent) is proposed with Council to provide a rent rebate of $38,010 (excl GST) per annum as a section 356 of the Local Government Act donation.

That Council waive the lease preparation fee $601.00 (incl GST) as set in Councils 2023-2024 Fees and Charges.

Consultation and Engagement

Council is not required to publicly advertise the proposed 5-year lease to the Preschool under the Local Government Act because the Land is classified as operational land. Internal consultation occurred with the Manager Social and Cultural Planning and the General Manager.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.3

Staff Reports - Sustainable Environment and Economy

Report No. 13.3 Federal Village Community-led Masterplan Evaluation

Directorate: Sustainable Environment and Economy

Report Author: Roseanna Meech, Planner

File No: I2023/894

Summary:

In August 2020, Council resolved (Res 20-418) to commence work on a community-led place plan for Federal Village. This community-led process was a new and different place planning approach from previous town and village masterplans in Byron Shire.

The project aims were:

· to establish a shared vision for Federal and priority actions that align with that vision;

· to develop a formal and collective document that will provide the strategic basis to promote and fund priority actions;

· to produce a masterplan that will be adopted by Council as one of Byron Shire’s Place Planning Strategies and feed into future statutory planning documents; and,

· to test community-led planning – a new way of doing things – that could be a framework for other towns and villages.

On 8 December 2022 Council resolved to adopt the Federal Village Masterplan (Res 22-678).

The resolution also sought to:

· finalise a video documenting the community-led master planning process – this is now accessible by the public via the Byron Shire Council website, and;

· undertake an evaluation of the community-led masterplan process – this is the main subject of this report.

The aim of this evaluation was to test community-led planning that could inform a master planning framework moving forward.

The overall finding was that this process worked for both Council and the community and should certainly be a process that could be adopted again in the right setting, following improvements and modifications.

As an overall observation, those who participated in the process over the two-year period were generally satisfied with the process. When asked how satisfactory the role they played in the process over 75% of responses were satisfactory or very satisfactory. The model worked well for the context of the community and the demographic.

There were five key findings which informed a series of recommendations as described below.

1. A motivated and skilled Steering Group with great leadership is integral to a community-led model delivering the intended outcome

2. A deliberative democracy model requires great support from Council to effectively empower the community group

3. Greater information on the process and expectations provided at the start will better support the community group

4. The process took a lot longer than anticipated and a different methodology could support outcomes being achieved in a shorter time

5. The process was a great way of bringing community members together and a relationship building process between Council and community

RECOMMENDATION:

That Council

1. Notes the evaluation recommendations of the community-led Federal Village Masterplan and thanks those who participated in this review.

2. Notes that the learnings from this evaluation will be taken into account when scoping future place plans, including the next priority location – Ocean Shores.

3. Notes the final video of the community-led masterplan process for the Federal Village Masterplan has been completed and is available on Council’s website.

Attachments:

1 Federal Village Community-led Masterplan Evaluation Report, E2023/73194

Report

On 8 December 2022 Council adopted the Federal Village Masterplan (Res 22-678). The Federal Village Masterplan is a guide for sustainable development in and around Federal village into the future. The adopted plan contains 15 actions that are supported by four principles and a vision for the future of Federal.

The Masterplan Process

The masterplan process that delivered the Federal Village Masterplan was a unique approach that aimed to empower local residents to develop their own masterplan for their community. The intention was that Council’s Place Planning Team would guide community leadership as necessary by providing a process framework, outcome/report templates and other targeted support as needed. Council wished to establish a best practice model that fosters community leadership alongside Council support and delivers a vision and actions that are implementable and well supported by community.

The community-led framework was developed from best practice models such as those established in Christchurch, New Zealand. This was an evolution of the master planning process Council have undertaken to date in Mullumbimby, Bangalow and the Byron Arts and Industry Estate. The intent was, if successful, this process model could be applied in the development of place plans within other villages and towns in the Byron Shire.

The Evaluation

The aim of this evaluation was to test community-led planning that could inform a master planning framework moving forward. The evaluation has resulted in key findings unique to the process that delivered Byron Shire Council’s first masterplan document created for the community, by the community. The overall finding was that this process worked for both Council and the community and should certainly be a process that could be adopted again in the right setting, following improvements and modifications.

As an overall observation those who participated in the process over the two-year period were generally satisfied with the process. When asked how satisfactory the role they played in the process over 75% of responses were satisfactory or very satisfactory. The model worked well for the context of the community and the demographic.

Issues that arose over the two-year period in relation to the process were due to a variety of factors. Such issues have potential solutions that can be addressed in improving the framework moving forward.

There were five key findings which informed a series of recommendations as described below.

1. A motivated and skilled Steering Group with great leadership is integral to a community-led model delivering the intended outcome

2. A deliberative democracy model requires great support from Council to effectively empower the community group

3. Greater information on the process and expectations provided at the start will better support the community group

4. The process took a lot longer than anticipated and a different methodology could support outcomes being achieved in a shorter time

5. The process was a great way of bringing community members together and a relationship building process between Council and community

The evaluation was designed in consultation with a representative of the Place Planning Collective, Byron Shire Council Planning staff and the Federal Steering Group. The evaluation was undertaken to review the community-led process involved and not the final masterplan document itself. The evaluation comprised a survey and follow-up interviews which allowed for a quantitative and qualitative analysis of the findings. Steering Group members and relevant Council staff were invited to participate in the evaluation.

The full evaluation report is provided in Attachment 1.

The key findings and recommendations in the full report evaluation will be taken into account when scoping future place plans, including the next priority location – Ocean Shores

Video Summary

As per Resolution 20-689 Council commissioned a video summary to capture the community-led masterplan process in Federal.

The intention was for this video summary to act as a tool for guiding future masterplans in Byron Shire. It also has benefit in sharing the process undertaken within this community to potentially be adopted by other local government areas nationally.

The videos are currently accessible by the public via the Byron Shire Council website.

The videos follow the initial footsteps of the community commencing a deliberative democratic process. It contains interviews with the Steering Group and footage of community discussion groups meeting to work through ideas and concepts.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
4: Ethical Growth We manage growth and change responsibly	4.1: Manage responsible development through effective place and space planning	4.1.3: Town / Village Masterplans - Develop, implement and update Place Plans that promote place-based forward planning strategies and actions	4.1.3.5	Support the Federal Community Village Masterplan Steering Group to finalise the community-led master planning for Federal

Recent Resolutions

· Resolution 20-418: Request to Prepare Project Scope (27 August 2020)

· Resolution 20-689: Federal Community-Led Masterplan – Project Scope (10 December 2020)

· Resolution 21-243: Movement and access budget allocation (24 June 2021)

· Resolution 21-261: Update on the Masterplan and Main Street Process (5 August 2021)

· Resolution 22-678: Adoption of the Federal Village Masterplan (8 December 2022)

Legal/Statutory/Policy Considerations

N/A

Financial Considerations

N/A

Consultation and Engagement

As outlined in the body of this report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.4

Report No. 13.4 PLANNING - 26.2022.11.1 Housekeeping Amendments to Byron Local Environmental Plan 2014

Directorate: Sustainable Environment and Economy

Report Author: Kristie Hughes, Natural Disaster Policy Planner

File No: I2023/502

Summary:

The LEP is periodically reviewed to ensure that planning controls are current and correct. Staff maintain a register of LEP issues to investigate for inclusion in a general amendment planning proposal. This allows for Byron LEPs to be regularly updated to provide fit for purpose planning controls and planning controls that meet community expectations.

At the 13 October 2022 planning meeting a planning report presenting policy and mapping amendments to Byron LEPs (1988 and 2014) was considered by Council. It was resolved that the amendments be further investigated, and a planning proposal prepared (22-555). This report presents the General Housekeeping Amendments Planning Proposal and seeks endorsement by Council for submission to the Department of Planning and Environment for Gateway determination.

NOTE TO COUNCILLORS:

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters. Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

RECOMMENDATION:

That Council:

1. Submit the planning proposal contained in Attachment 1 (E2022/117263) to the NSW Department of Planning and Environment for Gateway determination.

2. Subject to the Gateway determination, undertake public exhibition of the planning proposal and consult with government agencies as required by the Gateway determination; and

3. Receive a submissions report outlining the exhibition outcomes.

4. In relation to the amended clause 4.1C ‘Boundary changes between lots in certain rural and conservation zones’, prepare supporting DCP provisions to provide clearer guidance around interpretation of the term “altered” boundary and clause objectives.

Attachments:

1 26.2022.11.1 Housekeeping planning proposal 2023, E2022/117263

2 Form of Special Disclosure of Pecuniary Interest, E2012/2815

Report

Background

Council has two Local Environmental Plans (LEP). The Byron Local Environmental Plan (LEP) 2014 guides development and land use decisions for most of the Byron Shire. The Byron Local Environmental Plan (LEP) 1988 applies to several areas with environmental values and or coastal lands, which were deferred from being zoned in the Byron LEP 2014. These areas are known as a Deferred Matter (DM) in Byron LEP 2014.

Council maintains a live list of LEP controls and mapping matters that have been identified as being out of date, anomalous or in need of attention for other reasons. The items identified on this list are reviewed and those considered minor policy and minor mapping changes are bundled into periodic housekeeping planning proposals.

The intent of a housekeeping planning proposal is to ensure the LEP stays current, correct and consistent with Council policy and the Act.

This planning proposal is for 12 housekeeping amendments to the LEPs: 7 policy related and 5 mapping related. The policy related amendments aim to address anomalies and correct out of date information. The mapping amendments proposed are minor in scale and aim to correct mapping anomalies.

Further detail on each amendment is presented below and in the attached planning proposal.

Draft Policy Amendments

Item 1: Include the C4 Environmental Living zone in clause 4.1AA Minimum subdivision lot size for community title schemes

Rationale

A recent planning proposal has introduced the C4 Environmental Living zone into Byron LEP 2014.

The C4 zone should be included in clause 4.1AA to ensure that any community title subdivision complies with the minimum lot size requirement.

Item 2: Remove (2A) from clause 4.4 Floor space ratio.

Rationale

Clause 4.4 gives weight to the floor space ratio (FSR) maps within Byron LEP 2014. Subclause (2A) enables applications for dual occupancies in the R2 Low Density Residential zone to have a FSR of 0.5:1, regardless of what is shown in the FSR map for a particular area. This subclause, which has been carried forward from Byron LEP 1988, is inconsistent as some areas intentionally have an FSR of less than 0.5:1 to minimise the bulk/scale of development, protect environmental features and or reduce risk to hazards (e.g. flooding). This inconsistency currently promotes construction of a larger dual occupancy over a dwelling house (i.e. with lower FSR) in identified sensitive or constrained areas.

Item 3: Amend Rural boundary adjustment clause 4.1C

Council resolved (21-174) in June 2021 to consider this clause in a future housekeeping planning proposal, pending the outcome of rural planning reforms from Department of Primary Industries. Although these reforms have not progressed it is considered necessary to amend this clause in order to ensure it is fit for purpose without creating unintended outcomes.

Rationale

4.1C Minimum subdivision lot size for boundary adjustments in certain rural and residential zones

This clause aims to enable adjustment of boundaries between two properties in rural areas where one or more of the resulting lots would be less than the minimum subdivision lot size, without increasing the number of lots or creating additional dwelling opportunities.

Other councils have this clause within their LEP, and court proceedings have placed emphasis on what does/does not constitute a ‘boundary adjustment’ limiting the application of the clause to meet its intention.

Staff have undertaken further investigations to ensure this clause is fit for purpose without creating unintended outcomes. As a result of these investigations the main changes proposed are:

· revised clause modelled on clause 4.2C of the Eurobodalla Local Environment Plan 2012 and titled “Boundary changes between lots in certain rural and conservation zones”;

· change in terminology from boundary “adjustment” to “altered”. The latter permits a broader interpretation of the circumstances where a boundary “change” might occur, because the language and meaning of “altered” is different to the meaning of “adjustment”;

· requirement to consider the objectives of this clause, as well as the objectives of the relevant zone (the current cl 4.1C contains no such requirements); and

· a broadening of the matters for consideration before consent may be granted to the subdivision of 2 or more adjoining lots.

The proposed clause wording still enables assessment officers to consider the appropriateness of individual applications. For example, there may be circumstances where a road or other physical/natural land feature make it appropriate to separate the dwelling area off from the remaining portion of the land – noting that such scenarios would need to satisfy the criteria in clause 4.1C (4) including:

(d) whether or not the subdivision is likely to have a significant impact on land uses that are likely to be preferred and the predominant land uses in the vicinity of the development,

(e) whether or not the subdivision is likely to be incompatible with a use referred to in paragraph (a) or (b),

(f) whether or not the subdivision is likely to be incompatible with a use of land in any adjoining zone,

(g) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d),

(h) whether or not the subdivision is appropriate having regard to the natural and physical constraints affecting the land,

(i) whether or not the subdivision is likely to have an adverse impact on the environmental values, heritage vistas or landscapes or agricultural viability of the land.

It is also recommended that supporting DCP provisions are prepared to provide clear guidance around interpretation of the term “altered” and clause objectives.

Item 4: Remove "attached" from clause 6.8 Rural and nature-based tourism development - (4) (a).

Rationale

Clause 6.8(4)(a) requires a dwelling house or dual occupancy (attached) to be constructed on site to enable consent for rural or nature-based tourism.

This subclause has carried over from Byron LEP 1988 which only permitted ‘attached’ dual occupancies in rural areas. To be current, this clause should reference ‘dual occupancies’ (ie. Comprising both attached and detached) as both are already permissible in the rural zones under LEP 2014.

Item 5: Remove “other than a classified road” from clause 6.8 Rural and nature-based tourism development – (3)(a).

AND

Add a new consideration to subclause 3 as follows:

(3)(b) “where that road is a classified road, vehicular access to and from the road must be safe, ensure the safety, efficiency and ongoing operations of the classified road, and it must be demonstrated that alternate access from a road other than a classified road is not practicable or safe”

Rationale

This part requires suitable vehicle access to and from a road for tourism development but prohibits access to a classified road.

There a several classified roads within Byron Shire including Mullumbimby Road and Gulgan Road, with some properties having existing access to these roads.

If suitable and safe access can be demonstrated, access to these roads may be appropriate.

It is proposed to remove the prohibition in this clause (ie. access to/from a classified road) and replace with a new part for considering access to classified roads.

Item 6: Insert the following into Schedule 1 Additional Permitted Uses, as a carryover from clause 17 in Schedule 8 of Byron LEP 1988:

"Lot 3, DP 599728, development for the purpose of four dwelling-houses for a multiple occupancy is permitted with development consent"

Rationale

By oversight this APU was not included in Schedule 1 of LEP 2014 as part of finalising the Stage 1 Conservation Zones review, which is inconsistent with treatment of the adjoining Lot 2 DP 599728 in Schedule 1.

Item 7: Remove subclause 2(c) from clause 4.2D Erection of dual occupancies (detached) and secondary dwellings in Zones RU1 and RU2 in LEP 2014

Rationale

Subclause 2(c) requires dual occupancies to be situated within 100m of each other.

Removing this subclause acknowledges that siting dwellings further than 100m apart may be appropriate and produce better outcomes in certain circumstances.

Other considerations already exist in clause 4.2D and Byron DCP 2014 to minimise land use conflict, ensure development will not impair the use of the land for agricultural purposes and utilise a single vehicular access from a public road.

Item 8: 4.1F Exceptions to minimum lot sizes for certain rural subdivisions

Clause 4.1F was inserted into the LEP when it was first created to enable special purpose subdivisions in the rural areas, similar to what was permitted under the LEP 1988.

This clause was flagged for review as an applicant had interpreted this clause to enable subdivision of tourist cabins from the parent lot containing the dwelling house. Following further investigation of this clause, staff have determined that this is not the intention of this clause and the current provisions still remain applicable in certain (albeit limited) circumstances. As no change is proposed, it has been excluded from the Planning Proposal.

Draft Mapping Amendments

Corresponding maps for the amendments below are available in the planning proposal at Attachment 1, Appendix 2.

Item 9: Increase the Floor Space Ratio (FSR) from 0.2:1 to 0.3:1 for certain areas in Suffolk Park and New Brighton.

Rationale

Residential areas under Byron LEP 1988 have a maximum FSR of 0.5:1 for dwellings. Some areas at New Brighton, and Suffolk Park along Broken Head Road when transitioned to LEP 2014 were given an FSR of 0.2:1 due to their environmental sensitivity/flood hazard.

It's likely that many of these dwellings already have an FSR greater than 0.2:1 as they were constructed before the application of the 2014 zoning.

Some landowners have stated the 0.2:1 FSR is restrictive and hindering some of these sites from redevelopment. It is proposed to increase these areas to an FSR of 0.3:1.to provide greater flexibility whilst also ensuring any redevelopment remains sympathetic to the environmental and or flood hazard constraints on the land.

Item 10: Reduce the height of buildings limit from 9m to 8m within the Wategos residential area.

Rationale

Wategos is the most eastern residential area within Australia, is surrounded by a State Conservation Area and has steep topography. These attributes give it a high degree of visual exposure.

To minimise the impact of the built form on the environment and visual/public realm, it is proposed to reduce the height limit in this area from 9m to 8m.

Consultation with the affected landowners will be required as part of the planning proposal process.

Item 11: Remove rural zoning from certain lots within and adjoining the Bangalow Industrial estate, Dudgeons Lane

Rationale

A small part of the Bangalow industrial estate still has the RU1 Primary Production zone applying (Lot 6 DP 241328; Lot 1 DP1077663 and part of unnamed road reserve). This anomaly was identified in a submission to the planning proposal for 150 Lismore Road (26.2021.3.1) and the area should have an E4 General Industrial Zone applied, consistent with the rest of the surrounding industrial estate.

FSR and Lot Size will also be amended to reflect the E4 zone.

Item 12: Include 3 land parcels in Bangalow in the Height of Buildings (HOB) map sheet to have a 9m height limit.

PN 269670, PN 269673 and PN 269693

Rationale

These parcels do not currently have a height limit applying in LEP 2014. It is proposed to apply a 9m height limit to these sites consistent with the HOB mapping of the surrounding area.

Item 13: Rezone several parcels that have been gazetted as National Parks or Nature Reserves to C1 National Parks and Nature Reserves.

Rationale

The following sites have been gazetted as National Parks or Nature Reserves under the National Parks and Wildlife Act 1974 and the zoning is to be updated to C1 National Parks and Nature Reserves:

- Lot 1 DP 1261334

- Lot 311 DP 1163830

- Unformed road Koonyum Range

The sites are now part of Billinudgel Nature Reserve and Mount Jerusalem National Park.

Item 14: Amend Byron LEP 1988 to rezone the West Byron Urban Release Area to reflect the court approved subdivision for Harvest Estate.

Rationale

Council Resolved 19-137 to amend the zoning of West Byron Urban release area in relation to the subdivision plan.

The court approved Harvest Estate subdivision (2021) differs from the zoning currently within Byron LEP 1988.

Although the zoning should be amended to reflect the ‘land use’ layout of the approved Harvest Estate subdivision plan, there needs to be further considerations around transitioning the LEP 1988 West Byron provisions into LEP 2014. As a result this item will be considered in a separate planning proposal.

Next steps

Should council resolve to proceed with this planning proposal, a request for a Gateway determination will be sent to the Department of Planning, Industry and Environment.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective		CSP Strategy		DP Action		Code		OP Activity
4: Ethical Growth We manage growth and change responsibly	4.1: Manage responsible development through effective place and space planning		4.1.4: LEP & DCP - Review and update the Local Environmental Plan and Development Control Plans		4.1.4.2		Review and update LEP and DCP to reflect strategic land use priorities and/or legislative reforms

Recent Resolutions

· 22-555 (13 October 2022) Amendments to Byron Local Environmental Plan 2014

Legal/Statutory/Policy Considerations

This planning proposal will amend the Byron Local Environmental Plan 2014.

Financial Considerations

This is a Council initiated planning proposal funded through the existing operational budget.

Consultation and Engagement

Should Council resolve to proceed with the planning proposal, it will be sent to the NSW Department of Planning and Environment for Gateway determination to enable formal public exhibition.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.5

Report No. 13.5 PLANNING - Post Exhibition Submissions Report - Planning Proposal - 26.2021.6.1 - 103 Yagers Lane, Skinners Shoot

Directorate: Sustainable Environment and Economy

Report Author: Dylan Johnstone, Development Investigations Lead

File No: I2023/1056

Summary:

On 13 October 2022 Council considered a Planning Proposal to amend Byron Shire LEP 2014 by granting a dwelling entitlement for the land, so that development consent can be sought for the use of an existing unauthorised dual occupancy (detached) on the land.

The Department of Planning & Environment issued a Gateway determination on 24 November 2022 and the Planning Proposal was placed on public exhibition for a minimum period of 28 days from 17 May to 16 June 2023. Agency consultation was undertaken in accordance with the Gateway determination.

Fifteen (15) public submissions were received and three (3) agency submissions were received. Public submissions are included in Attachment 3 and agency submissions are included in Attachment 4.

A formal Planning Agreement, for a monetary contribution equal to developer contributions captured by the Byron Shire Developer Contributions Plan 2012 and Section 7.11 of the Environmental Planning and Assessment Act 1979, was drafted by the Applicant’s legal representative and exhibited concurrently with the Planning Proposal. The Planning Agreement (Attachment 2) has been reviewed by Council’s Legal Services with some minor procedural amendments recommended, which the applicant has agreed to.

This Report recommends that the Planning Proposal (as amended) be forwarded to the Department of Planning & Environment for finalisation and that delegation be granted to the General Manager to execute the Planning Agreement associated with the Planning Proposal.

RECOMMENDATION:

That Council:

1. Adopt the Planning Proposal in Attachment 1 (E2023/73028), as amended to include additional information to address flooding concerns raised by the NSW State Emergency Service during the exhibition period.

2. Forward the amended Planning Proposal to the NSW Department of Planning & Environment requesting finalisation.

3. Grant delegation to the General Manager to execute the Planning Agreement associated with the Planning Proposal in Attachment 2 (E2023/73225).

Attachments:

1 26.2021.6.1 - Planning Proposal Post Exhibition Version - 103 Yagers Lane Skinners Shoot, E2023/73028

2 26.2021.6.1 - Amended Planning Agreement - 103 Yagers Lane Skinners Shoot, E2023/73225

3 26.2021.6.1 - Public submissions, combined, E2023/67066

4 26.2021.6.1 - Agency submissions combined, E2023/72939

5 26.2021.6.1 - Public Submissions Summary, E2023/73148

6 26.2021.6.1 Gateway determination for web public exhibition, E2023/48450

7 Form of Special Disclosure of Pecuniary Interest, E2012/2815

Report

Background

On 13 October 2022 Council considered a Planning Proposal to amend Byron Shire LEP 2014 by granting a dwelling entitlement for the land so that development consent can be sought for the use of an existing unauthorised dual occupancy (detached) on the land.

Action No. 22 of the Byron Shire Rural Land Use Strategy 2017 (BSRLS) recommends investigation into a strategic framework for resolving dwelling entitlement issues. This action provides the strategic basis for the subject Planning Proposal. This strategy was endorsed by the NSW Department of Planning and Environment (DPE) in July 2018.

Following consideration of the 13 October 2022 Council report, 22-560 Resolved that Council:

1. Proceeds with the planning proposal as attached to this report (Attachment 1) to amend LEP 2014 to permit a dual occupancy (detached) with consent on the subject land;

2. Forwards the planning proposal to the NSW Department of Planning and Environment for a Gateway determination;

3. Pending a positive Gateway determination and completion of further studies by the applicant (if required), undertakes public exhibition of the planning proposal in accordance with the determination requirements;

4. Considers a submissions report post-exhibition that includes any recommended changes to the planning proposal for final adoption.

Planning Proposal

The Planning Proposal seeks to amend Byron Shire LEP 2014 by granting a dwelling entitlement for the land (Lot 8 DP 8385) so that development consent can be sought for the use of an existing unauthorised dual occupancy (detached) on the land. Specifically, the Planning Proposal seeks to add the land to Division 1 of Part 6 – Additional local provisions of LEP 2014 to permit a dual occupancy with consent (similar to existing LEP clause 6.15).

A “Plain English” version of the proposed Byron LEP 2014 Part 6 – Additional local provisions clause is as follows:

What Land Does it Apply to?

Lot 8 DP 8385, 103 Yagers Lane, Skinners Shoot.

What Additional Development will be Permitted?

A dual occupancy will be permitted with development consent.

Gateway Determination

A Gateway determination (Attachment 6) was issued by the DPE on 24 November 2022. The Gateway determination required:

· Minor amendments to the Planning Proposal

· Public exhibition for a minimum of 20 days

· Consultation with agencies

· A 9 month time frame for completing the LEP from the date of the Gateway determination.

Planning Agreement for Infrastructure Contributions

The Planning Proposal seeks to amend LEP 2014 so that a dual occupancy is permitted with consent on the subject site.

If a dual occupancy is permitted on the site, this will create additional demands on rural roads, community facilities, open spaces etc. Such demands are captured by the Byron Shire Developer Contributions Plan 2012 which requires a monetary contribution in accordance with the Plan and Section 7.11 of the Environmental Planning and Assessment Act 1979.

Ordinarily contributions would be paid at the time of subdivision for creating a lot with a dwelling entitlement equivalent to one Standard Dwelling Unit (SDU). However, for the purposes of this Planning Proposal, there is no clear mechanism within the Contributions Plan for applying developer contributions.

To address this the submitted Planning Proposal included a letter of offer to enter into a Planning Agreement with Council. The offer proposes payment of a monetary contribution equivalent to two SDUs for the two existing dwellings.

Council staff have no justification to require additional contributions over and above the demand normally generated for a rural dual occupancy under the terms of the Contributions Plan 2012.

A formal agreement was drafted by the Applicant’s legal representative and exhibited concurrently with the Planning Proposal. Public submissions requested that road contributions for the upgrade to Council engineering standards should be nominated in the Planning Agreement and that Councillors resolve to apply different terms to the agreement as the existing dwellings must be made to comply with the same requirements that apply through proper channels of the dwelling approval process. A staff response to these concerns is included in the public submissions summary (Attachment 5).

The Planning Agreement (Attachment 2) has been reviewed by Council’s Legal Services with some minor procedural amendments recommended, which the Applicant has agreed to. It is recommended that the Planning Agreement be executed by the General Manager.

Public Exhibition

In accordance with the Gateway determination, the Planning Proposal was placed on public exhibition for a minimum period of 28 days from 17 May to 16 June 2023. The Planning Agreement was exhibited concurrently with the Planning Proposal.

A total of fifteen (15) public submissions were received.

The Planning Proposal was also referred to the following agencies for comment:

· NSW Rural Fire Service

· NSW State Emergency Service

· Essential Energy

· Tweed Byron Local Aboriginal Land Council

· Jali Local Aboriginal Land Council

· Arakwal Corporation

The Planning Proposal was also notified to Transport for NSW as an adjoining landowner (rail corridor to the south) who did not raise any specific concerns in their response.

Despite follow up attempts to obtain comments from Tweed Byron Local Aboriginal Land Council, Arakwal Corporation, Jali Local Aboriginal Land Council and Essential Energy, no comments were received.

A copy of all public submissions received are included in Attachment 3 and agency submissions are included in Attachment 4.

Agency submissions

Submissions were received from the NSW State Emergency Service and from the NSW Rural Fire Service. The key issues and staff response to these are summarised below.

	NSW State Emergency Service (SES) Submission (Attachment 4)
Item #	Issues Raised	Council Staff Response
1.	Zoning should not enable development that will result in an intolerable increase in risk to life, health or property of people living on the floodplain. Additional information regarding flooding is required for the NSW SES to be able to give advice on flood risk for this proposal. Information should include mapping illustrating inundation of the site and the access/egress routes (including the type of flood event, frequency and duration which impact Yagers Lane and Skinners Shoot Road which will affect the access). It is essential for emergency management to have the results of the full range of events including potential changes to velocity and time of inundation which impact the site and surrounding access roads. Flow paths which are safe during lesser events may lead to catastrophic flooding for these rarer events. Although the dwellings may meet flood planning level requirements it quickly becomes isolated as access and egress for evacuation routes are closed due to floodwater. Skinners Shoot Road, the only access road to the site is inundated from the 20% AEP event. The frequency of flooding also contributes to the flood risk. Any floodwater on a site will affect the occupants to some degree. The more often people evacuate, the greater the cumulative exposure to wading or driving through floodwater.	Items 1 & 2: A map indicating inundation of the site for the 1% flood was included in the exhibition version of the Planning Proposal. It is proposed to amend the Planning Proposal to include mapping indicating inundation of the site for the probable maximum flood (PMF) event, identifying inundation of internal access during the 1% flood, and identifying dams and drainage lines on the site. Council does not have any available information regarding the inundation of Yagers Lane, however there is information available regarding the inundation of Skinners Shoot Road (northern part) which is estimated to be restricted for more than nine hours from at least the five year event. It is proposed to amend the Planning Proposal to include mapping to demonstrate this. The amended Planning Proposal (Attachment 1) includes this mapping in item 4.1 of the Section 9.1 Directions from page 29. Although vehicular access to the site becomes isolated from at least the five year event due to flooding of Skinners Shoot Road, the existing dwellings are not inundated by the PMF and therefore residents of the dwellings are able to shelter during a flood event without the need to evacuate. Given that this is not a new urban release area and the two (unauthorised) dwellings already exist on the site, neither of which are inundated by the PMF, it is considered that the Planning Proposal does not present “an intolerable increase in risk to life, health or property”.
2.	Risk assessment should consider the full range of flooding, including events up to the Probable Maximum Flood (PMF) and not focus only on the 1% AEP flood. The flood modelling has not been provided with the documents in the NSW Planning Portal (PP-2021-5283). Flood modelling information available to Council indicates that the majority of the site (including the site of the existing dwellings at 30m AHD) is not inundated during the Probable Maximum Flood (PMF). However, this should be confirmed in the Planning Proposal.
3.	Risk assessment should have regard to flood warning and evacuation demand on existing and future access/egress routes. Consideration should also be given to the impacts of localised flooding on evacuation routes. In the context of future development, self-evacuation of the community should be achievable in a manner which is consistent with the NSW SES’s principles for evacuation. Future development must not conflict with the NSW SES’s flood response and evacuation strategy for the existing community. Evacuation must not require people to drive or walk through flood water. Access to the site during a flood is lost as Skinners Shoot Road is inundated during frequent flood events. If residents remain in the area, they may be trapped, and it may be too dangerous for NSW SES to conduct rescues or resupply. The secondary risks of flood waters can include infectious diseases, sewerage, chemical hazards, electrical hazards, displaced wildlife, and debris such as glass and metal that can cause injury.	Items 3 & 4: In January 2023, the Department of Planning and Environment proposed to use shelter-in-place as one part of helping ensure people are safe during floods. A draft shelter-in-place guideline was on exhibition for public comment from 17 January until 28 February 2023. It is noted that one of the key conditions of the draft guideline to satisfy is that “… duration for flood inundation is less than six hours”. However, given that (i) two (unauthorised) dwellings already exist on the site and (ii) internal access and habitable structures on the site are not affected by such inundation (ie. only affects vehicle access offsite via Skinners Shoot Road / Yagers Lane), shelter-in-place is still considered to be a reasonable and practical response in this location.
4.	Development strategies relying on deliberate isolation or sheltering in buildings surrounded by flood water are not equivalent, in risk management terms, to evacuation. The statement that ‘there is no need to evacuate during a flood given the site has land above the PMF’ is not always correct. In some instances, for example where loss of essential services are likely, NSW SES may evacuate a community, in particular particularly vulnerable community members. During flooding it is likely that there will be a reduced capacity for the relevant emergency service agency to respond in these times. Even relatively brief periods of isolation, in the order of a few hours, can lead to personal medical emergencies that have to be responded to.
5.	Development strategies relying on an assumption that mass rescue may be possible where evacuation either fails or is not implemented are not acceptable to the NSW SES.	Noted. Given that the existing dwellings are not inundated by the PMF it is considered that a mass rescue is neither necessary nor practical.
6.	The NSW SES is opposed to the imposition of development consent conditions requiring private flood evacuation plans rather than the application of sound land use planning and flood risk management.	It is agreed that such development consent conditions are inappropriate and unnecessary in the context of the subject dual occupancy and accordingly such conditions will not be imposed on any future development consent issued for the use of the existing dual occupancy.
	Recommendation - Amend the exhibited Planning Proposal to include additional information to address flooding concerns raised by the NSW State Emergency Service (as specified above).

	NSW Rural Fire Service (RFS) Submission (Attachment 4)
Item #	Issues Raised	Council Staff Response
1.	The proposal permits an increase in residential density and whilst this does not necessarily require a subdivision approval the same principles and criteria would apply. This includes ensuring an APZ based on a radiant heat threshold of 29kW/m² for any new dwellings, along with suitable provision for construction, access, water and landscaping. A desktop assessment indicates that this site has the capacity to meet these requirements. Any subsequent applications related to this proposal should include a Bush Fire Assessment Report that not only addresses the detached dwelling but also demonstrates a better bush fire outcome for the existing dwelling. This should include consideration of any required upgrades that may include, but are not limited to, protection from embers.	Noted. A future development application that seeks consent for the use of the existing dual occupancy (detached) will require the inclusion of a Bush Fire Assessment Report to address the relevant requirements of Planning for Bush Fire Protection 2019.
	Based on the above, no changes are required to the Planning Proposal with regard to bushfire.

Public submissions

Concerns raised in public submissions include compliance with bush fire safety standards, impacts on unmapped high value vegetation including koala and flying fox habitat, increased traffic and its impact on the local road network, inadequacy of the contribution proposed in the Planning Agreement, contamination of the site due to historical use, future commercial use of the site, noise and light impacts and pedestrian safety and parking along Skinners Shoot Road.

Staff responses to each of these matters are contained within the Public Submissions Summary in Attachment 5. No changes are required as a resulted of the issues raised.

Options

Option 1 (Recommended)

Forward the amended Planning Proposal in Attachment 1 to the Department of Planning & Environment requesting finalisation.

Option 2

Withdraw support for the Planning Proposal.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
4: Ethical Growth We manage growth and change responsibly	4.1: Manage responsible development through effective place and space planning	4.1.4: LEP & DCP - Review and update the Local Environmental Plan and Development Control Plans	4.1.4.1	Assess requests to amend Local Environmental Plans and/or Development Control Plans including maps in accordance with legislative requirements.

Recent Resolutions

· 22-560 dated 13 October 2022

Legal/Statutory/Policy Considerations

The relevant legal/statutory/policy considerations have been noted above.

Financial Considerations

If Council chooses to proceed with the Planning Proposal, it will be at the proponent’s expense as a landowner initiated Planning Proposal. Council will require full cost recovery of the remaining stages. If the applicant chooses not to pay then the Planning Proposal will not proceed.

If Council chooses not to proceed then the matter does not incur any additional costs.

Consultation and Engagement

Details pertaining to community consultation and engagement are provided above. Consultation has been undertaken in accordance with the Gateway determination.

BYRON SHIRE COUNCIL

Questions With Notice 14.1

Questions With Notice

Question with Notice No. 14.1 Urban water & sewer systems

File No: I2023/1113

Cr Dey asks the following question:

Council sponsored me to attend the Local Gov’t NSW Water Management Conference in Parkes in June. The biggest message to take home from the Conference is that society undervalues our Water and Sewage Treatment Plant Operators. This raises questions around whether we pay Byron operators at minimum rates, or at rates commensurate with the high cost of living in our area.

When Council is faced with an emergency, like the floods of 2022, we want our Water and Sewage System Operators to be local so that they can actually get to the sites they operate, even when comms are down and access is cut. This means living locally, so that water supply is not prejudiced by lack of staff and so that sewage continues to be collected and treated, rather than overflowing raw into the environment (including into the suburbs from which it should have been pumped away).

1. Do we pay Byron operators at rates commensurate with the high cost of living locally?

Several presenters at the Conference raised issues and offered services around reducing carbon emissions, which are prolific especially from sewage pumping and treatment. The Office of Energy & Climate Change (scc@environment.nsw.gov.au) offers expertise to Councils and Joint Organisations including on pathways to renewable energy financing. They also issue a guide known as “Beam Solar Tool”.

2. Is Council aware of or have we used the “Beam Solar Tool” available as above?

3. Is Council aware of or have we used the Sewage and Water Treatment Efficiency Toolkit available under the “Net Zero Regional Council project”?

Exhibitors at the Conference also offered services. They included Bridgeford Group who consult on energy, engineering and efficiency. They undertake initial high-level assessments of a Council’s practices and are of the view that endeavours, to date, focus mostly on electricity generation, for supply at high use sites. Council does generate renewable energy at several sites. Further to this:

4. Do we share excess power between sites, on a Virtual Energy Network (“behind the meter”)?

5. If so, has Council considered storage within our VEN?

Response Director Infrastructure Services:

1. Do we pay Byron operators at rates commensurate with the high cost of living locally?

All staff are paid in accordance with the Byron Shire Council salary system which is based on the Local Government State Award (2023) and Industry Standards.

In July 2023, a 4.5% wage increase was applied to all employees under the Award.

This negotiated salary increase is a reflection of the recognised impact of the rising cost of living across the State and local area.

2. Is Council aware of or have we used the “Beam Solar Tool” available as above?

Yes, Council is aware but does not use this tool. Council can investigate this Tool at request of Council. BSC Utilities Department has a dedicated Sustainability Officer that provides this service to Council around reducing carbon emissions.

This gets reported back to the Sustainability team for annual reporting.

Utilities Department has set aside budget on an annual basis for undertaking energy improvements.

Staff can provide a further report if required.

3. Is Council aware of or have we used the Sewage and Water Treatment Efficiency Toolkit available under the “Net Zero Regional Council project”?

Yes, Council is aware and reports of Energy efficiency in relation to treatment.

The IS Utilities Department works strategically and operationally with SEE - Sustainability Department in relation to ‘Net Zero Regional Council Project’.

Inclusive of capital renewal with a high MCA weighting on emissions (i.e. efficient pump stations and STP blower replacement program).

This is monitored monthly and reported on an annual basis by SEE Sustainability Department.

4. Do we share excess power between sites, on a Virtual Energy Network (“behind the meter”)?

5. If so, has Council considered storage within our VEN?