NAMBUCCA SHIRE COUNCIL

General Purpose Committee - 18 March 2009

 

Acknowledgement of Country            (Mayor)

 

I would like to Acknowledge the Gumbaynggirr people who are the Traditional Custodians of this Land.  I would also like to pay respect to the elders both past and present and extend that respect to any Aboriginals present.

 

 

AGENDA                                                                                                   Page

 

1        APOLOGIES

2        PRAYER

3        DISCLOSURE OF INTEREST

4        CONFIRMATION OF MINUTES — General Purpose Committee - 18 February 2009

5        DELEGATIONS—Motion to hear Delegations

6        ASKING OF QUESTIONS WITH NOTICE

7        QUESTIONS FOR CLOSED MEETING WHERE DUE NOTICE HAS BEEN RECEIVED

8        General Manager Report

8.1     Delegation of Authority - General Manager

8.2     Delegations of Authority - Community Based Section 355 Committees

8.3     Section 355 Committees of Management - Improved Communications between Council and Committees

8.4     Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

9        Director Environment and Planning Report

9.1     Report on Draft Compliance, Enforcement and Prosecution Policy

9.2     Report on Modification to Erect Multi-Unit Housing - 6 Units - 61 Charlton Street, Nambucca Heads

9.3     Updated Report on Progress of Nambucca Local Environmental Plan 2008 (NLEP 2008)

9.4     Report on Rehabilitation Bonds for Wia-Ora Sand and Gravel - DA 1995/102 and T1-9-57    

 


 

Time

Description

Where

OS/CC

Item

Page

8.30-9.30

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

CC

8.4

14

09.30 - 10.30

Delegations of Authority - General Manager

                             - Community Based section                            355 Committees

CC

8.1

8.2

2

5

10.30

Morning Tea

COM

 

 

11.00-12.30

Meeting for Wia-Ora Bonds & DWE

On-site

9.4

59

12.45 - 1.15

Lunch

COM

 

 

1.15 - 2.30

New Template LEP Workshop

CC

9.3

45

2.30 - 3.15

Policies – Draft Compliance, Enforcement and Prosecution Policy

CC

9.1

24

3.30 - 4.15

DA 2004/014/01 Charlton St (p62 of 5 March 2009) Objectors have been notified and will be attending

On-site

9.2

40

4.30

Close

 

 

 


General Purpose Committee

18 March 2009

General Manager's Report

ITEM 8.1      SF35                180309         Delegation of Authority - General Manager

 

AUTHOR/ENQUIRIES:     Michael Coulter, General Manager         

 

Summary:

 

Section 380 of the Local Government Act provides that Council must review all its delegations during the first 12 months of each term of office.

 

Section 377 of the Local Government Act provides that a Council may, be resolution, delegate to the General Manager or any other person or body (not including another employee of the council) any function other than a specified list of items (a) to (u).

 

The General Manager may then delegate those functions to other staff.

 

The Promoting Better Practice Review at page 30 noted and recommended as follows:

 

“Council confirmed that there are currently no documented delegations to the Mayor.  Delegations to the General Manager and Directors have been reviewed over the past year.  Council intends reviewing remaining staff delegations following the September local government elections.  This should be prioritised and made publicly available.  Delegations should be reviewed at least every two years or whenever a change in the responsibility of a Council officer or committee member requires such a change.”

 

The General Manager’s delegations of authority were last reviewed by Council on 2 November 2006.  Given that more than 2 years of time has elapsed, they have been reviewed and are presented in the circularised document for endorsement by Council.  The circularised document shows in “track changes” the differences between the existing delegations and the proposed delegations.

 

 

Recommendation:

 

That Council delegate authority to the General Manager to perform functions in accordance with the list in the attachment.

 

 

 

OPTIONS:

 

Council can adopt the delegations of authority or amend them as it sees fit.

 

As there are 152 Councils in NSW which should be considering reviewing their delegations of authority every 2 years, a suggestion has been referred to the Department of Local Government that they might consider preparing a “standard template” of delegations for metropolitan councils, rural and regional councils and Section 355 committees.  This would save consider able staff resources.

 

DISCUSSION:

 

This matter was deferred from Council’s meeting on 19 February 2009.

 

Section 380 of the Local Government Act provides that Council must review all its delegations during the first 12 months of each term of office.

 

Section 377 of the Local Government Act provides that a Council may, by resolution, delegate to the General Manager or any other person or body (not including another employee of the council) any function other than a specified list of items (a) to (u).

 

The General Manager may then delegate those functions to other staff.

 

The Promoting Better Practice Review at page 30 noted and recommended as follows:

 

“Council confirmed that there are currently no documented delegations to the Mayor.  Delegations to the General Manager and Directors have been reviewed over the past year.  Council intends reviewing remaining staff delegations following the September local government elections.  This should be prioritised and made publicly available.  Delegations should be reviewed at least every two years or whenever a change in the responsibility of a Council officer or committee member requires such a change.”

 

The General Manager’s delegations of authority were last reviewed by Council on 2 November 2006.  Given that more than 2 years of time has elapsed, they have been reviewed and are presented in the circularised document for endorsement by Council.

 

Only minor changes have been made to reflect the “call in” arrangement for development applications, to make provision for grants with other minor changes to wording and layout.  The circularised document shows in “track changes” the differences between the existing delegations and the proposed delegations.

 

CONSULTATION:

 

The proposed delegations of authority have been reviewed by Council’s executive management (Manex).

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

There are no implications for the environment.

 

Social

 

There are no social implications.

 

Economic

 

There are no economic implications.

 

Risk

 

Ensuring delegations of authority are comprehensive and up to date will minimise Council’s risk in any legal action.

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

There are no financial implications.

 

Source of fund and any variance to working funds

 

There are no implications for working funds.

 

Attachments:

1View

Circularised Document - Delegation of Authority - General Manager

 

 

 


General Purpose Committee - 18 March 2009

Delegation of Authority - General Manager

Attachment 1

Circularised Document - Delegation of Authority - General Manager

 

 

 

 

 

Placeholder for Attachment 1

 

 

 

Delegation of Authority - General Manager

 

 

 

Circularised Document - Delegation of Authority - General Manager

 

  Pages

 

 


General Purpose Committee

18 March 2009

General Manager's Report

ITEM 8.2      SF1301            180309         Delegations of Authority - Community Based Section 355 Committees

 

AUTHOR/ENQUIRIES:     Michael Coulter, General Manager         

 

Summary:

 

Section 380 of the Local Government Act provides that Council must review all its delegations during the first 12 months term of office.

 

Recommendation no. 22 of the Promoting Better Practice Report also requires that, “delegations should be reviewed at least every 2 years or whenever a change in the responsibility of a council officer or committee member requires such a change”.

 

Council has delegated significant functions to forty seven (47) community based Committees of Management under Section 355 of the Local Government Act.  These are in addition to other Section 355 Committees which provide advice direct to Council.

 

A proposed template operations guide and delegations of authority for each of the community based Section 355 Committees of Management is recommended.

 

 

Recommendation:

 

That Council delegate authority to the following Committees of Management under Section 355 of the Local Government Act in accordance with the circularised document:

 

Argents Hill Hall

Australia Day Committee

Bowraville Folk Museum

Bowraville Hinterland Festival

Bowraville Pioneer Community Centre

Bowraville Sports Ground

Burrapine Public Hall

Coronation Park

Crosswinds Wetland Nature Reserve

E J Biffin Playing Fields

Eungai Community Pre-School Centre

Eungai District Community & Hall Council

Gordon Park Rainforest Walk

Grants Hall/Bowraville & District Youth Club

Gumma Crossing (Boulton’s)

Macksville Netball Courts

Macksville Senior Citizens Centre

Macksville Showground

Macksville Tennis Courts

Mary Boulton Pioneer Cottage and Museum

Missabotti Community Centre

Nambucca District Band

Nambucca District Historical Society

Nambucca Entertainment Centre

Nambucca Heads Tennis Club

Nambucca Senior Citizens

 

North Macksville Playing Field

 

Scotts Head New Year Eve Celebrations

 

Scotts Head Sports Fields

 

Scotts Head Tennis Courts

 

South Arm Hall

 

Talarm Hall

 

Taylors Arm Hall

 

Taylors Arm Sports Reserve

 

Tewinga Community Centre

 

Unkya Reserve

 

Utungun Community Centre

 

Valla Beach Tennis Club

 

Valla Beach Urban and Hall

 

Valla Public Hall

 

Warrell Creek Public Hall

 

Welsh Pioneer Park

 

 

2        That Council enquire with the last contact for Goldie Nature Park; Bowraville Pre-School Inc.; Donnelly-Welsh Playing Fields; and the Macksville Gift and Macksville Park and Sports as to their operational status as a Section 355 Committee of Council and whether they can or wish to remain as a Committee of Council.

 

 

 

OPTIONS:

 

Council has complete discretion in relation to the formation of Section 355 Committees and the delegation of functions to those Committees.

 

 

DISCUSSION:

 

This matter was deferred from Council’s meeting on 19 February 2009.

 

Section 380 of the Local Government Act provides that Council must review all its delegations during the first 12 months term of office.

 

Recommendation no. 22 of the Promoting Better Practice Report also requires that, “delegations should be reviewed at least every 2 years or whenever a change in the responsibility of a council officer or committee member requires such a change”.

 

Section 355 of the Local Government Act 1993 provides as follows:

 

355    How does a council exercise its functions?

 

A function of a council may, subject to this Chapter, be exercised:

 

(a)      by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or

(b)      by a committee of the council, or

(c)      partly or jointly by the council and another person or persons, or

(d)      jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or

(e)      by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member).

 

Council has forty seven (47) community based Section 355 Committees of Management.  These Committees of Management generally meet and conduct their operations without involvement from Councillors or Council staff and are in addition to other Section 355 Committees which provide advice direct to Council.  The Management Committees are:

 

1        Argents Hill Hall

2        Australia Day Committee

3        Bowraville Folk Museum

4        Bowraville Hinterland Festival

5        Bowraville Pioneer Community    Centre

6        Bowraville Pre-School Inc

7        Bowraville Sports Ground

8        Burrapine Public Hall

9        Coronation Park

10      Crosswinds Wetland Nature Reserve

11      Donnelly-Welsh Playing Fields

12      E J Biffin Playing Fields

13      Eungai Community Pre-School Centre

14      Eungai District Community & Hall Council

15      Goldie Nature Park

16      Gordon Park Rainforest Walk

17      Grants Hall/Bowraville & District Youth Club

18      Gumma Crossing (Boulton’s)

19      Macksville Gift

20      Macksville Netball Courts

21      Macksville Park and Sports

22      Macksville Senior Citizens Centre

23      Macksville Showground

24      Macksville Tennis Courts

25      Mary Boulton Pioneer Cottage and Museum

26      Missabotti Community Centre

27      Nambucca District Band

28      Nambucca District Historical Society

29      Nambucca Entertainment Centre

30      Nambucca Heads Tennis Club

31      Nambucca Senior Citizens

 

32      North Macksville Playing Field

 

33      Scotts Head New Year Eve Celebrations

 

34      Scotts Head Sports Fields

 

35      Scotts Head Tennis Courts

 

36      South Arm Hall

 

37      Talarm Hall

 

38      Taylors Arm Hall

 

39      Taylors Arm Sports Reserve

 

40      Tewinga Community Centre

 

41      Unkya Reserve

 

42      Utungun Community Centre

 

43      Valla Beach Tennis Club

 

44      Valla Beach Urban and Hall

 

45      Valla Public Hall

 

46      Warrell Creek Public Hall

 

47      Welsh Pioneer Park

 

A check of correspondence in relation to each of these Committees of Management indicates that a number are non-functional as Section 355 Committees as evidenced by a failure to report any annual general meeting in the past 18 months; lack of notification of committee representatives; and lack of any BAS or financial returns.  They may well be functioning in another capacity but based on these criteria the following Section 355 Committees are not considered functional:

 

Goldie Nature Park

Bowraville Pre-School Inc.

Donnelly-Welsh Playing Fields

Macksville Gift

Macksville Park and Sports

 

It is proposed to enquire with the last contact for these Committees as to their operational status and whether they wish to remain as a Section 355 Committee of Council.

 

In addition to the non-operational Committees, a number of other Committees struggle to achieve a quorum and willing office bearers at their AGMs.  In some instances basic maintenance, a core responsibility for a Committee of Management, has not been attended to which will result in increased and unplanned expenditure by Council.  It is difficult to see the large number of Committees as being sustainable, either from the perspective of having sufficient volunteers or from the perspective of Council having sufficient resources to supervise and sustain their activities.

 

In mid 2007 generic constitutions for most of the Committees of Management were prepared.  These constitutions provide delegations of authority.

It should be appreciated that the functions which are delegated to the Committees of Management are extensive and as a consequence there are important reporting obligations which in many cases are statutory in nature.  The Council and its senior staff may be liable if the Committees of Management do not undertake the required reporting or operate outside their authorities.

 

The Committees have to manage their income and expenditure and often engage contractors for a variety of purposes.  Recent examples include the building extensions to the Headland Museum and Mary Boulton’s cottage.  The Valla Hall Committee are project managing a significant upgrading of their hall with grant money and Work for the Dole.  The Valla Beach Urban and Hall Management Committee employ a part time contractor to manage their weekend markets.  The Back to Bowra Hinterland Festival Committee of Management employed a number of contractors to assist with their last festival.

 

Following on from these functions, the Committees (and Council) have statutory reporting obligations in relation to the BAS for GST.  Council has to ensure that for insurance purposes, the Section 355 Committees operate in accordance with their delegations of authority.  The Committees are also subject to the provisions of the Local Government Act and all other legislation which applies to Council.

 

A proposed operations guide and delegations of authority for each Committee is a circularised document.

 

 

CONSULTATION:

 

It is proposed to consult with:

 

Goldie Nature Park

Bowraville Pre-School Inc.

Donnelly-Welsh Playing Fields

Macksville Gift

 

in relation to their status as Section 355 Committees of Management.

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

There are no implications for the environment.

 

Social

 

For its size Nambucca Shire Council has a very large number of Section 355 Committees of Management.  This has many positives including engaging with volunteers in the community; building community spirit and saving money as otherwise Council would need to directly manage such assets.  However it also has negatives in placing a large reliance on volunteer effort and increasing risk given that minimal staffing is available to supervise and co-ordinate such a large number of Committees.

 

Economic

 

There are no economic implications.

 

Risk

 

The major issue with the operation of the Committees of Management is risk.  This relates to non-compliance with legislation such as statutory reporting and insurance requirements.  There are also potential risks in relation to fraud/theft of funds.  One means of managing this risk is to provide up to date delegations and operational guides.

 

Another risk relates to the application of Council resources.  In general terms Council has limited information as to the level of use of the facilities under management.  The level of community interest in discussions about the closure of facilities under management is not necessarily reflected in their level of usage or attendance at Committee meetings or Annual General Meetings.  In some instances basic maintenance, a core responsibility for a Committee of Management, has not been attended to which will result in increased and unplanned expenditure by Council.

 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

There is no impact on current and future budgets.

 

Source of fund and any variance to working funds

 

There is no impact on working funds.

 

Attachments:

1View

3318/2009 - Circularised Document - Guide to Operators and Delegations of Authority

 

 

 


General Purpose Committee - 18 March 2009

Delegations of Authority - Community Based Section 355 Committees

Attachment 1

3318/2009 - Circularised Document - Guide to Operators and Delegations of Authority

 

 

 

 

 

Placeholder for Attachment 1

 

 

 

Delegations of Authority - Community Based Section 355 Committees

 

 

 

3318/2009 - Circularised Document - Guide to Operators and Delegations of Authority

 

  Pages

 

 


General Purpose Committee

18 March 2009

General Manager's Report

ITEM 8.3      SF1301            180309         Section 355 Committees of Management - Improved Communications between Council and Committees

 

AUTHOR/ENQUIRIES:     Michael Coulter, General Manager         

 

Summary:

 

There are actually 47 community based Committees of Management which generally meet and conduct their operations without involvement from Councillors or Council staff.  Feedback from other Councils suggests this is a very large number.  By comparison Bellingen Shire Council has 23, Kempsey Shire Council has 25 and Byron Shire Council has 11.  Kempsey Shire Council has actually rationalised their number of Committees from approximately 50 to the current 25 because of concerns they could not be adequately supervised.

 

With the time available to myself and my assistant, we can and do circulate grant opportunities and can also provide an introductory welcome letter to newly elected Committees which would include Council’s Code of Conduct and the Guide to Operations/Delegations of Authority.  However organising workshops/meetings for 47 Committees or providing a dedicated and maintained section on Council’s web site is beyond our available time.  Should Council wish to develop such initiatives they would require an additional part time staff member.

 

Consideration could be given to developing a roster whereby either a Councillor or the General Manager attend the Annual General Meeting of each Committee.

 

 

Recommendation:

 

1        That Council provide a hard copy information package for each office bearer and Committee member following notification of the Committee’s Annual General Meeting.  The information package is to include an introductory letter, copy of the guide to operations and delegations of authority and a copy of Council’s Code of Conduct.

 

2        That a roster be developed whereby either a Councillor or the General Manager attend the           Annual General Meeting of each Committee of Management.

 

 

OPTIONS:

 

There are many options depending upon the level of financial resources Council wants to apply.

 

DISCUSSION:

 

At Council’s meeting on 4 December 2008 it was resolved that, “Council receive a report regarding how it can improve the way it guides, supports, consults and communicates with its s355 Committees of Management.”  The resolution arose out of a notice of motion.

 

The background discussion which was provided in support of the notice of motion was as follows:

 

“Council depends on approximately 42 S355 Committees of Management to oversee the operation and management of millions of dollars worth of Council owned assets and facilities, from community hall and museums to sporting facilities and nature parks.  At each AGM a new executive is elected, however there is no process in place to ensure that incoming executives are aware of their responsibilities under s355 of the Local Government Act.  As a result committees are potentially disadvantaged in their ability to operate effectively and appropriately.

 

Committees of Management are faced with enormous challenges in undertaking their roles on Council’s behalf, especially in the face of deteriorating infrastructure, reduced funding and increasingly complex health and building requirements.  Committee executives also are required to manage their volunteer membership which is not always an easy task with different personalities and differing views.

 

Enormous voluntary effort is contributed to this Shire, however for our Committees of Management and indeed the assets they manage to be sustainable it is timely for Council to consider how it interacts with them.  It is council’s best interest to ensure that these committees are well informed and supported. 

 

Given the critical role our Committees of Management play and the pressure they are under to fulfil their duties, I believe that Council can do more to assist and guide them.  A short term and economical investment will have a long term benefit for council’s assets and the community.

 

Some possible actions could include:

 

·              Greater use of group email bulletins to committee secretaries informing committees of grant programs, minimum standards, opportunities and updates,

 

·              A dedicated section on Council’s website for committees to share news, updates, fundraising ideas and event opportunities etc.

 

·              A hard copy information package for each committee including the relevant s355 of the Local Government Act 1993, the Code of Conduct and Code of Meeting Practice and relevant council contact numbers including the grants officer.

 

·              A workshop to explain the package to executive committee members with the objective of bring everyone up to speed, explain basic meeting procedures, allow networking and discuss committees needs.  It would then be up to outgoing committees to make sure any new committee members were aware of their roles and responsibilities and available information.

 

·              A letter to each new incoming committee drawing its attention to the information package.”

 

There is another report in the General Purpose Committee business paper dealing with a revised and a more detailed “Guide to Operations and Delegations of Authority”, which partly addresses the need for additional guidance and support.

 

There are actually 47 community based Committees of Management which generally meet and conduct their operations without involvement from Councillors or Council staff.  Feedback from other Councils suggests this is a very large number.  By comparison Bellingen Shire Council has 23, Kempsey Shire Council has 25 and Byron Shire Council has 11.  Kempsey Shire Council has actually rationalised their number of Committees from approximately 50 to the current 25 because of concerns they could not be adequately supervised.

 

With the appointment of a specialist Grants Officer and Technical Officer – Assets, the staffing support which is available to the Committees of Management has arguably increased.  However all governance issues arising out of the Committees are currently attended to by myself and my Executive Assistant who have to manage this with our other responsibilities.  We also provide considerable direct support to the Australia Day Committee during December and January and undertake grant acquittals for Committees.

 

The suggestions listed in the dot points in the background to the notice of motion are all in the nature of governance support.  With the time available to myself and my assistant, we can and do circulate grant opportunities and can also provide an introductory welcome letter to newly elected Committees which would include Council’s Code of Conduct and the Guide to Operations/Delegations of Authority.  However organising workshops/meetings for 47 Committees or providing a dedicated and maintained section on Council’s web site is beyond our available time.  Should Council wish to develop such initiatives they would require an additional part time staff member.

 


Over the past 2 years I have attended most of the AGMs for Committees which have provided Council with notice of their meeting.  Such face to face contact and communication is important to check on the viability of Committees, assess risks, hear first hand about the usage of the facility and any problems, as well as being generally supportive of the Committee’s endeavours.  However it would be desirable for a Council representative to attend the AGM of each Committee.  This does mean attending 47 meetings per year outside normal working hours.  Whilst there is representation by Councillors on a small number of the Committees, consideration could be given to developing a roster whereby either a Councillor or the General Manager attend the AGM of each Committee.

 

 

CONSULTATION:

There has been consultation with Kempsey and Bellingen Shire Councils.

 

 

SUSTAINABILITY ASSESSMENT:

Environment

 

There are no implications for the environment.

 

Social

 

As reported, for its size Nambucca Shire Council has a very large number of Section 355 Committees of Management.  This has many positives including engaging with volunteers in the community; building community spirit and saving money as otherwise Council would need to directly manage such assets.  However it also has negatives in placing a large reliance on volunteer effort and increasing risk given that minimal staff is available to supervise and co-ordinate such a large number of Committees.

 

Economic

 

There are no significant economic implications.

 

Risk

 

The major issue with the operation of the Committees of Management is risk.  This relates to non-compliance with legislation such as statutory reporting and insurance requirements.  There are also potential risks in relation to fraud/theft of funds.  One means of managing this risk is to provide up to date delegations and operational guides.

 

Another risk relates to the application of Council resources.  In general terms Council has limited information as to the level of use of the facilities under management.  The level of community interest in discussions about the closure of facilities under management is not necessarily reflected in their level of usage or attendance at Committee meetings or Annual General Meetings.  In some instances basic maintenance, a core responsibility for a Committee of Management, has not been attended to which will result in increased and unplanned expenditure by Council.

 

FINANCIAL IMPLICATIONS:

Direct and indirect impact on current and future budgets

 

The recommendation can be met from existing budgets.

 

Source of fund and any variance to working funds

 

The recommendation has no impact on working funds.

 

Attachments:

There are no attachments for this report.

 


General Purpose Committee

18 March 2009

General Manager's Report

ITEM 8.4      SF1213            180309         Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

 

AUTHOR/ENQUIRIES:     Craig Doolan, Manager Financial Services         

 

Summary:

 

Council resolved on 19 February 2009 to defer the item presented at its General Purpose Committee meeting of 18 February 2009 on the draft 2009/2029 Management Plan in particular the Targets/Objectives/Strategies for the 20 year Community Strategic Plan, with Councillors to provide any comments to the relevant Director before the March General Purpose Committee meeting.

 

Council’s relevant staff have considered comments provided and a revised draft is circularised for Council’s consideration as a draft for exhibition.

 

Circularised also for consideration is the draft Fees & Charges forming Councils Revenue Policy for 2009/2010.

 

 

 

Recommendation:

 

1          That Council adopt the Objectives/Strategies/Targets as amended for the Draft 2009/2029 Management Plan.

 

2          That Council adopt the Draft Fees & Charges as amended for the Draft 2009/2029 Management Plan.

 

 

OPTIONS:

 

Council has the option of making changes to the draft Management Plan as it sees fit.

 

DISCUSSION:

 

As mentioned in the previous report to Council’s General Purpose Committee, Council’s General Manager, Directors and Managers have analysed Council’s targets and strategies of the 20 year plan as well as the more pressing strategies over the next 5 years, taking into consideration the recent customer satisfaction survey, last year’s workshops developing the current 20 year Community Strategic Plan, public input since that time and current evolving issues to formulate statements embracing strategic intent encompassing community needs and expectations, resource management and financial sustainability.

 

Council resolved on 19 February 2009 to defer this particular item with Councillors to provide any comments to the relevant Director before the March General Purpose Committee meeting.

 

Council’s relevant staff have considered comments provided by Councillors and a revised draft is circularised for Council’s consideration as a draft for exhibition.

 

The draft fees and charges that form Council’s Revenue Policy are also circularised. A small number of charges are still to be determined as the draft budget is still being calculated. These particular items will be provided prior to Council authorising the Draft Management Plan for exhibition.

 

Written Councillor comments have been considered and amendments made to the Draft Management Plan where appropriate.  The written comments that have been received have been included as attachments.

 

 

Councillor Flack

 

 Comment/Question from Councillor Flack

Response

Pg 5 & 6. This comment relates to 1.3 and 1.4  The title was a statement rather than a strategy so I added ‘recognised as’ in 1.3 to rectify and in 1.4 "managed and promoted as"

The inclusion of both suggestions is considered appropriate

Pg 7 and onwards. The word Today should be removed from the heading for all Strategies as it is not considered appropriate when the period is for 2009-2014

This suggestions is supported.

Pg 9 Table under P3.2. consider requests to establish leash free areas in bowraville and Macksville

Council went through this process in the 2007/2007 Management Plan and budget. Several options were identified and costed with Council resolving not to proceed with leash free areas in Bowraville and Macksville.

If it is to be included a Budget will need to be provided for the public notification and signage.

This inclusion is not supported

Pg 9 Table under P3.2. Adequate leash free areas to satisfy community

Council went through this process in the 2007/2007 Management Plan and budget. Several options were identified and costed with Council resolving not to proceed with leash free areas in Bowraville and Macksville.

If it is to be included a Budget will need to be provided for the public notification and signage.

This inclusion is not supported

Pg 9 Table under P3.2. review need for leash free areas in Bowraville and Macksville

Council went through this process in the 2007/2007 Management Plan and budget. Several options were identified and costed with Council resolving not to proceed with leash free areas in Bowraville and Macksville.

If it is to be included a Budget will need to be provided for the public notification and signage.

This inclusion is not supported

Pg 10 Table under P4.1.3. Include "and signage" 

The suggestion is supported

Pg 21. Targets Table. Expand ESD to read Ecologically Sustainable Development (ESD) from 4th dot point.–

The suggestion is supported

Pg 21. Targets Table. Delete Plan from second last dot point and replace with "Report" Changed  wording of 2.1 from statement to strategy – likewise with other  strategy headings

The suggestion is supported

Pg 21. Strategy 2.1. Expanded to read as a Strategy rather then a Statement. "The air, water, soils, flora, fauna and biodiversity are managed to maintain or improve ecological sustainability

Whilst this suggestion could be supported the "how to get there strategies" are included in the Strategy Table that follow.

Pg 21. Strategy 2.1 Table. Strategy 2.1.5 amended to delete "through business community in planning and monitoring processes".

By deleting part of this strategy it implies that a partnership is not to be pursued as Council relies on business and community to assist Council in the development and promotion of Environmental Policy.

Pg 21. Strategy 2.1 Table. New Strategy 2.1.7. "Survey and Map environmental values"

Unless Council is prepared to fund the cost of surveying and mapping in the budget, this suggestion is not supported.

Pg 21. Strategy 2.1 Table. New Strategy 2.1.8. "Monitor Environmental Health"

What does this imply. If it is anything more that what Council currently does, resourcing will be required through the allocation of a budget item.

Pg 21. Strategy 2.2 Table. New Strategy 2.2.3 "Constraints mapping is maintained and implemented contemporaneously".

Council when finalising the Rural-Residential Strategy resolved that as new information becomes available constraints maps will be updated. Implemented contemporaneously has a significantly different interpretation to Council resolution and requires clarification from Cr Flack.

Pg 22. Strategy 2.5. correct spelling of "communities" to "community's"

The suggestion is supported

Pg 23. Strategy 2.6 Table. Expand Strategy 2.6.2 to include at the end " including Compliance, Enforcement and Prosecution Policy".

 

The suggestion is supported

Pg 23. Strategy 2.6 Table New Strategy 2.6.4. " Environmental information included in Council's newsletter".

Whilst on the surface this is not a difficult task. It must be considered that ensuring that information is regularly available it does require a person/s to collect and present.

Pg 23. Strategy 2.7. Delete the word Plan and replace with Report.

The suggestion is supported

Pg 24. Monitoring Table. Minor spelling correction and expansion of NVCA to read Nambucca Valley Conservation Association

The suggestion is supported

Pg 28. Objective E3. Amend Objective to read "E3 To develop and implement procedures to ensure compliance, enable effective detection of non-compliance and provide clear, reliable and relevant information for Council and the community on the State of the Environment and within approved allocation of resources

It is considered that the Objective statement already provides for this without the need to include ensure compliance.

 

 

Pg 28. Objective E3. Correct spelling of imput in Action E3.1.2

The suggestion is supported

Pg 28. Objective E3. New Action E3.1.4 Establish and maintain a database to record area and type of native vegetation removed for development purposes

This information is not necessarily available to Council without considerable resources being applied.

Proposed action not supported.

Pg 28 Objective E3. New KPI to match above proposed new Action. "Database established and information used in preparation of SoE Report and strategic planning"

This information is not necessarily available to Council without considerable resources being applied.

Proposed KPI not supported.

Pg 28 Objective E3 inclusion of the following at the end of Strategy E3.2 "and values".

The suggestion is supported

Pg 28 Objective E3 inclusion of three additional dot points in Action E3.2.2

·      Rainwater rebate scheme

·      LGSA Sustainable choices Program membership

·      Cities for Climate Protection membership and actions

 

The suggestions are supported

Pg 28 Objective E3 inclusion of a new Action E3.12.3 Prepare a Koala Plan of Management

The suggestion is NOT supported unless it is supported by a considerable budget allocation. The cost for a shirewide Koala Plan of Management could be considerable.

Pg 31 Objective E7, Include the following wording in KPI for Action E 7.2.2 "by suitable qualified staff member or consultant"

 

Inspections are currently carried out by Councils Parks & Reserves Inspector who is a qualified Horticulturalist. Quotes have been obtained in the last 12 months for external consultants and the prices quoted were $110 per hour plus traveling.

Pg 31 Objective E7 Expand Action E7.2.2 to read "Maintain a register of all unsuitable trees for programmed removal or lopping and significant trees for preservation where appropriate"

 

 A register of significant trees could be established. A criteria would need to be established first to define “significant” eg historical , habitat, scenic, environmental and even sentimental values.

Pg 31 Objective E7 Expand Action E7.2.4 to read "Replace trees removed with local native species taking into account location, powerlines, habitat value, local amenity, need for shade, visibility etc."

 

 

Tree planting in an urban area should be more flexible. Restricting selections to just native species greatly reduces the options. The parks should be used as opportunities to plant a range of specimen trees both local and exotic.

Taking into account local amenity and shade is an acceptable inclusion but are street trees provided for habitat? They tend to be isolated and separate rather than a workable corridor of vegetation.

Pg 31 Objective E7 New Action E7.2.5  Monitor health of trees in public places and take steps to remedy health issues in a timely manner.

 

The staffing level of the Parks and Reserves is at a minimal level. Adding extra duties is not really feasible. Providing the role of “Plant Doctor” would need to be an additional person/position or provided externally.

Pg 31 Objective E7  Two new dot points in KPI for Strategy E 7.3

·      Replace trees destroyed by vandalism and erect public notification sign re councils policy on tree vandalism including reward information.

·      Erect a view blocking screen to protect newly planted trees at site of vandalism to act as deterrent and raise public awareness.

 

.The erection of a banner stating “This Tree Vandalised” is now carried out. Replacement trees can be planted near by to restore the vegetation.

Councils policy does not include the erection of a screen. This was considered when the policy was developed but not adopted. Policy would need to be-written and adopted.

Pg 61. Objective L1 Action L1.1.1. Question "how often will community survey be undertaken?"

Community survey to be carried out every three years

 

 

 

Councillor South

 

All of Councillor South’s recommended changes have been incorporated into the draft Management Plan.

 

Councillor Moran

 

Comment/Question from Councillor Moran

Response

1  We have lost control of fire section they get what they want and don’t have to budget like Council.

Comment refers to the objective P1 of maintaining an effective volunteer Rural Fire Service to protect the community from bush fire related emergencies.  As Council is aware it has limited control over the budget process for the RFS.

2  Why do we have to replace 2 vehicles for SES?  We don’t replace VRA, Marine Rescue Vehicles?

Unlike the RFS, Council has discretion in relation to its level of financial support for other volunteer rescue organisations.  Increasing financial support for one or more rescue organisations will either mean taking funds from other areas of Council operations or moving funds between the rescue organisations.

3  Troop carrier what?

Can’t locate the reference.

4  Trucks carting water for drinking and carting for roads any requirements?

Council has 3 contractors licensed for carting potable water.  Council issues an annual licence, inspects the vehicle, requires food grade hose lines.  Vehicle cannot be used for carting non-potable water.

5  Inspect and issue a five year license approval.  How many times inspect?

Comment refers to P6.3 – 5 year approvals to mobile food vending vehicles.  An annual inspection is carried out.

6  What does ATO stand for?  Australia Taxation Office.

Reference is Section P6.3 to “ATO”.  It actually stands for “Approval to Operate”.  It is agreed that “ATO” be replaced with “Approval to Operate”.

7.  Cemeteries income 11028.69 Expenditure

What does this mean or it does not include?

Can’t locate the reference.

8  Wages for clerical mowing?  It looks good against debit.

Can’t locate the reference.

9  We should be cutting back hours to save funds.  Dorrigo, Urunga, Bellingen close on Mondays and some lunch times?

Reference is Objective P9, “to provide high quality library service to meet community needs”.  Allocation of funding to libraries is entirely at the discretion of Council.  Council can resolve to reduce service level if it wishes.

10  Health never consulted.

Can’t locate this reference.

11  Libraries increase and I am against.

As for 9. above.

12  HACC services we no need to get involved, they take care of themselves.

Reference to Section 2.5.3 – advocating for aged care in home support settings (HACC Services).  Council is not financially involved

13  Private certifiers are doing more work.   Why is it?  Because too much trouble with Council and too many problems if we lose all our business to private certifiers we have no work for our staff.

Council has lost work to private certifiers.  Certification is a business.  Whilst it would be preferable for Council to operate a successful business which provided a return on investment, the principle of competition is more important.  As with any business Council will have to adjust staffing levels to reflect the level of business it attracts.

14  E7.1  Why Trees?  This should be Engineering Department

E7.1 refers to managing the number of trees in streets and parks with a recommendation that a tree planting program be prepared.  The Management Plan is structured in themes which do not necessarily reflect a division of responsibility by Council department.  Whilst this is listed under the theme of “environment” it is a responsibility of Engineering Services.

15  E9.2  Weeds

As for the comment in 14. above.

16  ED1.1  Too long for the amount of work at present economic affairs

Council employs a 3 days per week Co-ordinator for the Visitor Information Centre.  Nambucca Valley Tourism also employs a contractor to assist with marketing.  Notwithstanding there will be a report to Council in relation to the responsibilities of the Manager Business Development.

17  If we chase interested people away who wants to start a factory or employ people?

If it is not a rhetorical question then more information required in order to consider incorporation in the Management Plan.

18  Why do we need an Economic Development Officer?

As for the comment in 17. above.

19.  ED 2 Skill Centre.  Why have we got to worry about this as its government funded and operated?

It is a matter for Council what support, if any, it provides to training initiatives such as the Skills Centre.

20  ED3.1  Tender not in operating for Pioneer Centre.

Council is undertaking an assessment of the condition of the building following which expressions of interest for its purchase will be called.

21  E4.4  No carbon emissions for land fill so what happens to the bottles?  Its about time Coffs Harbour and Bellingen take their share too.

The Coffs Coast Waste Service is in the lead in terms of minimising carbon emissions from land fill.  Council takes broken glass for a fee from Coffs Coast Waste Service.

22  19.3  Why sewerage has NOT been extended to south Macksville?  Plans are in hand we have resolution.

The proposed pump station has been deferred for a year as there was no development occurring.   Money is in reserves and project can proceed when required.

23  L3.2  Invest surplus funds.  Why not put the surplus to work.  Interest is going to be low for the next 5 years before we lose an amount.

Council has many restricted reserves which have to be maintained.  The term “surplus” is wrong and has been amended.

24  L8.1 Whether we replace Grader or put out some to Tenders to contract and have one less grader.

Monitoring of plant utilisation is required.  If utilisation is too low then consideration should be given to selling plant  and replacing it  with contractors.

25  The Mission does not stand up to its saying.

Presumably a rhetorical question.  It is important that Council as a corporation operates to a shared common vision and mission.

26  Infrastructure falling apart.  We don’t manage the environment it manages itself.  Try to maintain our assets.

The budget process this year will be more strategic in its approach to asset management and infrastructure replacement than the usual line by line annual budget.  Statement on the environment would be a good question for the HSC.

 

 

CONSULTATION:

 

Council’s General Manager, Directors and Managers have all contributed to developing the targets/objectives/strategies statements.

 

Councillors Moran, Flack and South.

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

The draft Management Plan is Council’s major policy statement of its targets, objectives and strategies for the next 20 years.  It allocates scarce resources to competing priorities.  Under Section 7 of the Local Government Act Council must have regard to the principles of ecologically sustainable development.  Therefore it must be satisfied that the objectives, strategies and funding made available directly and indirectly for the purposes of the environment are appropriate and adequate for this obligation.

 

Social

 

Council must be satisfied that the objectives, strategies and funding made available directly and indirectly for social outcomes are appropriate and adequate.

 

Economic

 

Council must be satisfied that the objectives, strategies and funding made available directly and indirectly for social outcomes are appropriate and adequate.

 

Risk

 

There are no particular risks.

 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

Council’s forthcoming draft budget and forward financial plan will follow these sections of the Management Plan and will highlight the financial implications in achieving the draft Management Plan targets/objectives/strategies.

 

Source of fund and any variance to working funds

 

The impact on working funds will be reported with the draft budget and forward financial plan.

 

 

 


Attachments:

1View

718/2009 - Circularised Draft Management Plan (Part 1) 20 Year Community Strategic Plan 2009/2029

 

2View

5794/2009 - Draft Management Plan comments - Cr Moran

 

3View

5894/2009 - Comments in relation to Draft Management Plan 2009/2029 - Cr E South

 

4View

Circularised comments - Cr Flack

 

 

 


General Purpose Committee - 18 March 2009

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

Attachment 1

718/2009 - Circularised Draft Management Plan (Part 1) 20 Year Community Strategic Plan 2009/2029

 

 

 

 

 

Placeholder for Attachment 1

 

 

 

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

 

 

 

718/2009 - Circularised Draft Management Plan (Part 1) 20 Year Community Strategic Plan 2009/2029

 

  Pages

 

 


General Purpose Committee - 18 March 2009

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

Attachment 2

5794/2009 - Draft Management Plan comments - Cr Moran

 

 

Queries from Cr Moran in relation to the Draft Management Plan

 

We have lost control of fire section they get what they want and don’t have to budget like Council.

 

Why do we have to replace two vehicles for SES?  We don’t replace VRA Marine Rescue Vehicles.

                                                         

Troop Carrier what

 

Trucks Carting water for drinking and carting for roads any requirements.

 

Inspect and issue a five year License approval.  How many times inspect?

 

What does ATO stand for?  Australian Taxation Office.

 

Cemeteries income 11028.69 Expenditure

What does this mean or it does not include?

 

Wages for clerical mowing?  It looks good income against debit.

 

We should be cutting back hours to save funds.  Dorrigo Urunga Bellingen close on Mondays and some lunch times.

 

Health never consulted.

 

Libraries increase and I am against.

 

HACC Services we no need to get involved, they take care of themselves.

 

Private Certifiers are doing more work.  Why is it?  Because to much trouble with Council and to many problems if we loose all our business to Private Certifiers we have no work for our staff.

 

E7.1 Why Trees?  This should be Engineering Department.

 

E9.2 Weeds

 

E1.1 Too long for the amount of work at present economic affairs.

 

If we chase interested people away who wants to start a factory or employ people?

 

Why do we need an Economic Development Officer?

 

ED 2 Skill Centre

Why have we got to worry about this as its government funded and operated?

 

ED3.1        Tender not in operating for Pioneer Centre.

 

E4.4 No carbon emission for land fill so what happens to the bottles?  Its about time Coffs and Bellingen take their share too.

 

I9.3   Why sewerage has NOT been extended to south Macksville?  Plans are in hand we have resolution.

 

L3.2  Invest surplus funds.  Why NOT put the surplus to work.  Interest is going to be how for the next five years before we loose an amount.

 

L8.1  Whether we replace Grader or put out some Tenders to Contract and have one less grader.

 

The Mission does not stand up to its saying.

 

Infrastructure falling apart.  We don’t manage the environment it manages its self.  Try to maintain our assets.

 


General Purpose Committee - 18 March 2009

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

Attachment 3

5894/2009 - Comments in relation to Draft Management Plan 2009/2029 - Cr E South

 

 


General Purpose Committee - 18 March 2009

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

Attachment 4

Circularised comments - Cr Flack

 

 

 

 

 

Placeholder for Attachment 4

 

 

 

Draft Management Plan 2009/2029 - Targets/Objectives/Strategies - Draft 2009/2010 Revenue Policy Fees & Charges

 

 

 

Circularised comments - Cr Flack

 

  Pages

 

  


General Purpose Committee

18 March 2009

Director Environment & Planning's Report

ITEM 9.1      SF1031            180309         Report on Draft Compliance, Enforcement and Prosecution Policy

 

AUTHOR/ENQUIRIES:     Greg Meyers, Director Environment and Planning         

 

Summary:

 

In accordance with the Promoting Better Practice Review undertaken of Nambucca Shire Council by the NSW Department of Local Government, a Policy was required to be developed to guide Council for Compliance, Enforcement and Prosecution issues and matters.

 

In line with Council’s new process the Draft Policy was previously distributed to Councillors for their information and opportunity to provide any comments prior to the issue of this report so the matter may be determined at the 18 March 2009 General Purpose Committee meeting.

 

 

Recommendation:

 

That Council adopt the Draft Compliance, Enforcement and Prosecution Policy subject to any agreed amendments.

 

 

OPTIONS:

 

Council has an option of deferring the consideration of this draft Policy to a later General Purpose Committee meeting.

 

 

DISCUSSION:

 

One of the recommendations arising from the Promoting Better Practice Review Report requires the preparation of a Policy to guide Council with compliance issues. The Review required this Policy to be prepared and adopted by Council by 31 January 2009. Whilst the Draft Policy was completed by 31 January 2009 the number of matters being presented to Council at recent meetings has seen this Policy being deferred until now.

 

The Policy has been developed after reviewing a number of current Policies of other State and Local Government organisations and is considered to reflect the processes previously applied by Council. This draft Policy does however clearly identify the steps, processes and considerations to be applied to a wide range of compliance, enforcement and prosecution matters.

 

The draft Policy was previously distributed to enable Councillors an opportunity to peruse and prepare any comments or proposed amendments for inclusion in this report so they may be discussed and considered at the 18 March 2009 General Purpose Committee meeting.

 

Since the Draft Policy was circulated a number of minor typographical and formatting issues have been attended to and are included in the attached Draft Policy.

 

The following dot point has been included in Clause 5.2 Natural Justice to ensure that a person is aware of their rights under the Act where the breach may have occurred. The difficulty here is that if it is a criminal offence a person must be advised of their rights, if it is a matter under the EP&A Act it is an offence not to provide information and under the POEO Act it is an offence not to provide information, and any information provided by a person about themselves, cannot be used as evidence in Court.

 


5.2     Natural Justice

·           Council must provide advice that the individual has certain rights and responsibilities with provision of information and that any information provided will and may be used as evidence if it is considered that the matter is a criminal offence. Notwithstanding, that for certain allegations, it may be an offence to withhold information;

 

Several Councillors have queried Clause 6.4 Priority of Action as to what it implies. This clause is included as Council does not have a finite resource to attend to every complaint or alleged breach immediately and that some matters that are not threatening to public health and safety are afforded a lower priority. However upon re reading the clause it is disjointed and the amended clause as outlined below has been included in the Policy.

 

Current Clause 6.4

Not all requests for Council action will warrant detailed investigation or the taking of action, and Council resources may inhibit the taking of action in all cases where, otherwise, action would be justified. Council does not have the resources to immediately investigate all complaints of unauthorised activity or non compliances, though Council does and will continue to record all complaints of unauthorised development or activity and breaches even though some of these may not be dealt with for a considerable time.

 

Amended Clause 6.4

Not all requests for Council action will warrant detailed investigation or the taking of action, and Council resources may inhibit the taking of action in all cases where, otherwise, action would be justified. Council does and will however, continue to record all complaints of unauthorised development or activity and breaches even though some of these may not be dealt with for a considerable time.

 

Listed below are the comments and suggested amendments provided by Councillors for consideration.

 

Cr Anne Smyth

 

Page 4 — 5.1 Principles

 

Third dot point – replace the word “sex” with “gender”

 

Action taken:  Amended in Policy

 

Page 5 — 6.1 Investigation and Discretion

 

Last dot point - I found this wording slightly convoluted and difficult to interpret. I would like to have it read more clearly, but cannot think of appropriate alternative wording. 

 

Page 7 — 6.4 Priority of Action

 

The first paragraph mentions that "Council resources may inhibit the taking of action in all cases where, otherwise, action would be justified...."

 

I feel uncomfortable with this. Would Council be leaving ourselves open to legal implications if we don't take action because of lack of Council resources where "otherwise, action would be justified"?? I realise that we have limited resources, but to just not take action would seem inappropriate to me, particularly if action would be justified if we did have the resources. 

 

Action taken:  Amended in Policy

 

Cr Paula Flack

 

Page 1 — Last Dot point

 

Reword the last dot point to read:

·           appropriately record Council’s responses to and actions regarding alleged unauthorised activities or non-compliance breaches.

 

Action taken:  Dot point amended in Policy to read:

 

·           appropriately record all notifications of alleged unauthorised activities or non-compliance breaches and record Council’s responses and actions taken in regard to the allegation.

 

Page 4 — 4.0 Policy Statement

 

First dot point on page – delete “is observed by Council that is” and “he or she will” – the sentence would therefore read:

 

·           If unauthorised building or development work under the control of a Private Certifier is observed by Council, the Private Certifier will be reported to the Building Professionals Board of the NSW Department of Planning.

 

Action taken:  Amended in Policy

 

Page 4 — 5.0 History

 

Note – Comment from Cr Flack

Thinks this should be deleted. Why advertise that we are restricted in our ability to implement the policy? Public are going to report whether this is in here or not.

 

Page 4 – 5.1 Principles

 

Dot point 3 – change “sex” to “gender”.

 

Action taken:  Amended in Policy

 

Second last dot point – Comment from Cr Flack:

What specified time limits? Should they be established and included in the policy?

 

Page 5 – 6.1 Investigation and discretion

 

Last dot point and following paragraph – Comment from Cr Flack:

Thinks this is dangerous to include in the policy and gives a poor message to our public. The first dot point says it all. If Council is aware that a breach of legislation has occurred, surely it would also be breaking the law to not take action or indeed could be taken to court for not exercising its legal responsibility.

 

Page 6 – 6.1 Investigation and discretion

 

Last paragraph after dot points – Comment from Cr Flack:

Council should also advice the complainant of their options should they not be satisfied with council’s decision

 

Page 6 – 6.2 Application of Priority Test

 

Comment from Cr Flack:

This section refers to the ‘tests’ but not how they will be weighted in terms of prioritising action nor how council will respond. Section 6.4 should follow on from this section.

 


Page 6 – Test 2 (T2) – Environmental Impact

 

Reword paragraph to read:

Has the unauthorised development or activity caused significant environmental impact or is it likely to cause a significant environmental impact, including impacts on the natural and the built environment? The application of this test requires a determination of the fact of any environmental impact and an assessment of the degree of that impact, by a qualified expert.

 

Action taken:  Submitted for Council discussion as the use of qualified expert will incur a cost to Council which may not be recouped.

 

Comments from Cr Flack:

Significant environmental impact should be defined eg loss of remnant native vegetation (without assessment), impact to a threatened species its habitat or EEC, change of hydrological regime, disturbance of ASS.

 

Council does not necessarily have the expertise to fully assess impact especially in cumulative terms. This policy should state that in some cases Council may need to gain external expert advice regarding environmental impacts and in such cases the person responsible for the alleged breach/unauthorised activity will be required to foot the bill, eg to assess the impact of veg removal one must determine species, species community, stand structure and age and role in terms of corridor and/or habitat and likely dependant fauna. Consideration of wider impacts of drainage in terms of exposing ASS elsewhere.

 

Action taken:  Submitted for Council discussion as the use of qualified expert will incur a cost to Council which may not be recouped unless it is dealt with in Court and is a Court Order.

 

Page 7 – Test 3(T3) – Public Safety

 

Last Paragraph – Comment from Cr Flack:

Another test should be added (if possible) which considers whether this is the first offence or subsequent. If the perpetrator has undertaken unauthorised or illegal activities before then Councils response to those actions were insufficient to deter further offence therefore council should be in a position to increase penalty or consider court action. This is too important to only be mentioned in 6.3 as a personal matter for consideration.

 

Action taken:  Submitted for Council discussion

 

Page 7 – 6.3 Personal matters of consideration

 

First dot point – Comment from Cr Flack:

Showing contrition is a fair consideration but only if the unauthorised activity has not caused environmental harm in which case action should be taken.

 

Last dot point – Comment from Cr Flack:

All dealings with unauthorised/illegal activities should be an educative process and not considered in lieu of reprimand, where other tests show more stringent action is required.

 

Page 7 – 6.4 Priority of action

 

First paragraph – changed to read:

Not all requests for Council action will warrant detailed investigation or the taking of action. Council does not have the resources to immediately investigate all complaints of unauthorised activity or non-compliances. Council does and will, continue to record all complaints of unauthorised development or activity and breaches even though some of these may not be dealt with immediately.

 

Action taken:  Clause 6.4 has been amended in the Policy to clarify this

 


Comment from Cr Flack:

This (sentence in italics) should also be deleted – we shouldn’t be advertising this fact. Rather we should state that the speed of response will be dependant on the priority of the matter based upon the application of the tests.

 

Points 1 and 3 to read:

 

1        Continuation of the unauthorised development or activity or breach would fail one of the tests set out in 6.2.

 

Action taken:  Amended in Policy

 

3        Action is part of a Council adopted compliance program.

 

Action taken:  Amended in Policy

 

Page 8 – 6.4 Priority of Action

 

Last paragraph – deleted:

“Order of priority of this Policy and intended actions in each case will be based on the results of Tests T2 and T3; and on the number of similar cases known or expected.”

 

The paragraph now reads:

This action plan does not preclude an urgent priority being allocated by staff or by Council resolution in critical cases, for example, involving life safety issues.

 

Action taken:  Submitted for Council discussion

 

Page 8 – 6.5.1 No Action

 

Comment from Cr Flack (in relation to wording in last line):

Doesn’t this in itself constitute an action? Perhaps referral should be a separate dot point.

 

Page 8 – 6.5.2 Educative

 

Comment from Cr Flack:

Not if environmental damage has occurred, is occurring or is likely to occur. Also not if the offence is second or subsequent occurrence.

 

Action taken:  Submitted for Council discussion

 

Page 8 – 6.5.3 Negotiation

 

Comment from Cr Flack:

Ditto – these soft options should not replace action to prevent further environmental damage and to reprimand inappropriate behaviour.

 

Action taken:  Submitted for Council discussion

 

Page 9 – 6.5.6 Notices/Orders

 

Point 3 – Delete “Council may”

 

Action taken:  Submitted for Council discussion

 


General Comment from Cr Flack:

 

Promotion and public awareness of this policy is very important. It should include a clause to the effect that Council will use media wherever possible to inform the public of the existence and implementation of this policy. The policy will be available on council’s website and referred to in Management Plan. IT should be referred to (maybe provided) to all those seeking DA information.

 

 

CONSULTATION:

 

General Manager.

Manager Health and Building Services.

Manager Planning and Assessment.

Councillors

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

The Draft Policy will assist Council in determining the most appropriate course and level of action proposed where a compliance or enforcement action is required. Such matters may relate to environmental issues.

 

Social

 

The Draft Policy will assist Council in determining the most appropriate course and level of action proposed where a compliance or enforcement action is required. Such matters may relate to social and community issues and assets.

 

Economic

 

The Draft Policy will assist Council in determining the most appropriate course and level of action proposed where a compliance or enforcement action is required. The economic impact is but one area of consideration when applying the Policy.

 

Risk

 

The Draft Policy will assist Council in minimising its risk through a consistent approach to the determination of the most appropriate course and level of action proposed where a compliance or enforcement action is required.

 

 


FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

There are no budgetary impacts with this report.

 

Source of fund and any variance to working funds

 

There are no funds required.

 

Attachments:

1View

4621/2009 - DRAFT POLICY - Compliance, Enforcement and Prosecution

 

 

 


General Purpose Committee - 18 March 2009

Report on Draft Compliance, Enforcement and Prosecution Policy

Attachment 1

4621/2009 - DRAFT POLICY - Compliance, Enforcement and Prosecution

 

 

 

 

 

NAMBUCCA SHIRE COUNCIL

COMPLIANCE, ENFORCEMENT AND PROSECUTION POLICY

 

 

 

Function: Environment and Planning

 

 

Adopted:

Last reviewed:

 

 

 

Our Vision

 

Nambucca Valley ~Living at its best.

 

Our  Mission Statement

 

‘The Nambucca Valley will value and protect its natural environment, maintain its assets and infrastructure and develop opportunities for its people.’

 

 

1.0       Policy objective

 

This Policy has been prepared to guide Council in determining the most appropriate response where alleged regulatory breaches have occurred within the shire.

 

The objectives of this policy are to:

·         specify the heads of consideration for the determination of the significance of the alleged breach;

·         specify the way that Council will determine the priority given to any alleged instance or type of breach;

·         outline the range of responses that Council will use in any instance of an alleged regulatory breach;

·         specify the matters for consideration in determining the type of Council response to any alleged regulatory breach;

·         enable the Council to acknowledge its obligation under Section 8 of the Local Government Act 1993 to ensure that the regulatory powers are carried out in a consistent manner and without bias;

·         provide a proactive policy statement regarding the enforcement of compliance with legislation;

·         foster prompt, consistent and effective action by the Nambucca Shire Council in response to allegations of unauthorised activities or non-compliance whilst ensuring that the principles of natural justice are respected;

·         appropriately record all notifications of alleged unauthorised activities or non-compliance breaches and record Council’s responses and actions taken in regard to the allegation.

 


2.0       Related legislation

 

Local Government has a regulatory responsibility under various legislation and statutes operating within NSW and the Commonwealth. In many cases the local Council’s are the deemed and/or nominated regulatory authority.

 

The following nominated Legislation is not an exhaustive list where Nambucca Shire has a regulatory responsibility, but is provided as a guide to outline the legislation under which, most common breaches are noted to occur within the Nambucca Local Government area:

 

Local Government Act 1996

Environmental Planning and Assessment Act

Roads Act

Road Rules 2008

Roads Traffic Act

Public Health Act

Food Act

Threatened Species Conservation Act

Protection of the Environment Operations Act

Companion Animals Act

Impounding Act

Swimming Pools Act

Noxious Weeds Act

Waste Management Act

 

Note:  Reference to an Act also refers to its Regulations and subsequent Amendments.

 

 

3.0       Definitions

 

Reference to a term or terms in this Policy are to be read in conjunction with the Definitions and/or Dictionary under the relevant Acts applicable to the matter being investigated.

 

Notwithstanding, in this Policy the following definitions apply:

 

Authorised Officer means an employee of Nambucca Shire Council duly authorised by the General Manager/Council to do such things as outlined in the formal delegations issued to that employee on behalf of Nambucca Shire Council.

 

Authority, Responsible Authority or Council means Nambucca Shire Council.

 

Breach means a failure to perform some promised act or obligation or to act in disregard of laws, rules or an approval.

 

Compliance means ensuring that the requirements of laws, regulations, industry codes and organisations standards are met.

 

Discretion means Council’s freedom to act or not to act, in regard to a regulatory responsibility afforded to it under legislation.

 

Responsible Officer means an employee of Nambucca Shire Council, who under delegation is charged with the responsibility for implementing and enforcing particular legislation and for the investigation of a complaint, alleged breach or non-compliance and making recommendations to their supervisor, the General Manager or the Council as the case may be.

 


Unauthorised Activity or Non-compliance includes very minor misdemeanours or technical breaches where there is little or no environmental harm up to significant breaches of legislation established for the protection of the natural, built and human environment and public health and safety.

 

 

4.0       Policy Statement

 

This policy has been prepared so that Council can be guided by adopted objectives and guidelines when determining the appropriate response in cases of alleged breaches of relevant Acts operating within Nambucca Shire Local Government Area.

 

Council recognises that:

 

·         non-compliance with Legislation compromises the objectives of the Acts and the role of the local council and its community in the implementation of fair and equitable standards and expectations;

·         under the relevant statutes and case law, Council’s authority to take enforcement action is discretionary;

·         available Council resources will affect the scope of Council’s enforcement strategy;

·         legislation recognises that it is the impact of an unauthorised activity or non-compliance with the standards that is the basis for the unacceptability of the activity or non-compliance rather than the activity or non-compliance itself;

·         the incidence of an unauthorised activity or non-compliance with the standards is affected by the level of knowledge in the community regarding the scope, application and purpose of the relevant legislation or standard.

 

This policy provides the considerations that Council will take into account in the exercise of its discretion to take action in instances of an unauthorised or non-compliant activity or action.

 

Nambucca Shire Council views unauthorised or non-compliant activities as extremely serious. Regulations and systems are put in place for the benefit of the local community as a whole. Council is committed to rigorously monitoring unauthorised or non-compliant activities.

 

Where unauthorised or non-compliant activities are identified Council may:

·         issue a Penalty Infringement Notice;

·         issue a “Stop Work” notice where unauthorised works are in progress;

·         seek injunctive relief through a relevant court of jurisdiction;

·         where pollution breaches or events occur, issue directives, clean up orders and/or preventative notices;

·         where major pollution breaches or events occur, the person causing the pollution may be prosecuted through either the District Court or the Land and Environment Court;

·         where unauthorised building or development works have taken place, offer owners either the option of demolishing the unauthorised works or submitting an application for a Building Certificate at which time Council may choose from a range of options available to it, including the demolition of works, additional works to bring the works into compliance with relevant Codes and Standards or issue a certificate;

·         unauthorised building or development works which constitute major breaches may be prosecuted through either the District Court or the Land and Environment Court;

·         if unauthorised building or development work under the control of a Private Certifier is observed by Council, the Private Certifier will be reported to the Building Professionals Board of the NSW Department of Planning.

 

Nambucca Shire Council’s strategy in regard to an unauthorised activity or non-compliance is:

·         that the confidence of the community is secured if Council’s compliance actions are fair, equitable, consistent and accountable;

·         to establish a compliance regime whereby enforcement action recognises, and is appropriate to, the character and significance of the legislative breach;

·         to recognise that to reduce the incidence and range of unauthorised activities or non-compliances in the Nambucca Shire local government area it may be necessary, from time to time, to prosecute an offender to seek a court imposed penalty to act as a deterrent; and

·         to recover the costs of Council’s action to rectify an unauthorised activity or non-compliance by seeking to recover the costs of its action from the person or persons who were responsible for the unauthorised activity or breach.

 

 

5.0       History

 

In considering the actions to be taken after receiving a complaint or notification of an alleged unauthorised activity or breach, Nambucca Shire Council will apply the following Principles to determine the most appropriate action and allocating a priority to the investigation/action.

 

Note: Council does not have unlimited resources and relies upon the public to make complaints and to provide evidence to assist Council in taking enforcement action.

 

 

5.1     Principles

 

Nambucca Shire Council is committed to:

·         acting in the interest of protecting community health, safety and the environment;

·         acting consistently, fairly and impartially;

·         preventing discrimination on the basis of race, religion, gender, national origin, political association or other personal reason/s;

·         ensuring the proposed enforcement action the relative severity of the offence/s;

·         ensuring enforcement action is taken against the right person for the correct offence;

·         ensuring that any actual or potential conflict of interest situations are managed in a fair, consistent and impartial manner;

·         disclosing all evidence relevant to the alleged offence/s;

·         assisting the Court by providing all necessary information whether or not that information is in favour of the Council case;

·         issuing cautions to the alleged offender/s, where necessary;

·         making cost effective decisions concerning enforcement action having regard to the likely outcome if the matter proceeds to court;

·         ensuring action is instigated within the specified time limits.

 


5.2     Natural Justice

 

Nambucca Shire Council will ensure that the principles of natural justice are adhered to prior to a decision being made. The following principles will be addressed and implemented by the Council:

·         whoever is the subject of concern must know all the allegations in relation to their action;

·         Council must provide advice that the individual has certain rights and responsibilities with provision of information and that any information provided will and may be used as evidence if it is considered that the matter is a criminal offence. Notwithstanding, that for certain allegations, it may be an offence to withhold information;

·         all parties to the complaint must have the right to be heard;

·         all relevant submissions and evidence must be considered;

·         matters which are not relevant must not be taken into account;

·         the person who makes the complaint must not determine the matter;

·         the decision-maker must be fair and just.

 

 

6.0     Heads of Consideration in Taking Enforcement Action

 

6.1     Investigation and discretion

 

Under various statutes, the exercise of Council’s authority to enforce legislation is discretionary. This has the effect that:

 

·         Council does not have a legal obligation to take action to enforce legislation that is enforceable at the insistence of or by a third party;

·         Council may choose not to enforce the law in particular circumstances or at all.

 

However, Council may commit a legal error if it does not turn its mind to the exercise of its statutory power in the event of a breach of legislation. Under the common law, failure to take enforcement action may constitute negligence in the event that a duty of care can be established to exist and to have been breached.

 

Council needs to observe a number of matters for the exercise of their discretionary powers to be lawful (from Enforcement Guidelines for Council’s, NSW Ombudsman June 2002):

 

·         the power must be used for a proper purpose i.e. within the scope and purpose for which the power was given;

·         the decision-maker must give proper, genuine and realistic consideration to the merits of the particular case;

·         the decision-maker must consider only relevant considerations and must not consider irrelevant considerations in reaching a decision ie the decision must not be manifestly unreasonable;

·         the decision-maker must give adequate weight to a matter of great importance but not give excessive weight to a relevant factor of no great importance;

·         the decision-maker must not exercise a discretion in a way that is so unreasonable that no reasonable person could have exercised the power;

·         the decision-maker must not make a decision that is arbitrary, vague or fanciful;

·         the decision-maker must exercise a discretion independently and not act under the dictation or at the behest of any third person or body;

·         the decision-maker must not fetter its discretion by, for example, adopting a policy that prescribes its decision-making in certain circumstances;

·         the decision-maker must observe the basic rules of procedural fairness ie natural justice;

·         the decision-maker must not act in a way that is biased or conveys a reasonable perception of bias.

 

If a decision is made not to investigate a complaint, this decision must be recorded with the reasons for that decision and the complainant so advised.

 

 

6.2     Application of Priority Test

 

The selection of the appropriate response and priority given to the matter will be determined on the basis of the following Tests:

 

          Test 1 (T1) – Likelihood of Consent or approval

“Is the unauthorised activity a form of development or activity that, ‘but for’ the failure to make application for a development consent or an activity approval, would likely have been granted such consent or approval subject to appropriate conditions”.

 

An unauthorised activity/development is understood to ‘pass’ this test in the event that it is likely that the development or activity would have been granted consent/approval, had application been made for such consent/approval prior to the undertaking of the activity or development.

 

Development consent can in some cases, be granted retrospectively. Where development involves the use of land (rather than construction works) consent can be granted to continue that use. Further, Council can modify an existing development consent so as to grant consent to works that have already been carried out, though the development must remain substantially the same as the development for which the council originally granted consent.

 

          Further points of consideration:

 

Estoppel: Has Council previously taken action or done or acted in a particular way that would prevent any action now?

 

Technical breach: Is it minor/technical only and would have been approved anyway?

 

Expiration of period of limitation: Is it something that occurred many years ago and beyond the period of limitation for action?

 

Easily remedied: Is it possible to easily remedy the breach?

 

Chances of enforcement successful: What are Council’s chances of a successful conviction should the matter head to Court?

 

Public benefit: Consideration of the cost benefit between the Costs of legal action and a deterrent if the offender is convicted.

 


          Test 2 (T2) – Environmental Impact

“Is the unauthorised development or activity likely to cause a significant environmental impact, including impacts on the natural and the built environment? The application of this test requires a determination of the fact of any environmental impact and an assessment of the degree of that impact.”

 

An unauthorised development or activity is understood to ‘pass’ this test in the event that the impacts of the development or activity are negligible or insignificant and action to control the impacts is not required.

 

            Test 3 (T3) – Public Safety

“Is the unauthorised development or activity likely to lead to injury and/or to create a public liability?”

 

The application of this test requires a determination of the fact of any health and safety risk and an assessment of the degree of that risk.

 

An unauthorised development or activity is understood to ‘pass’ this test in the event that no significant health and/or safety risk or liability is created by the development or activity.

 

 

6.3     Personal matters of consideration

 

·         The person in breach has shown contrition: if a person acts appropriately by acknowledging their unauthorised development or activity and ceases that activity and seeks retrospective approval, it may be that not prosecuting the offender and/or providing time to comply would best serve the public interest.

·         Inaction would cause hardship to the complainant: a more coercive approach may be appropriate where the complainant does not have the option of taking civil action.

·         Action would cause hardship to the person the subject of the complaint, for example, the action would make the person homeless.

·         The person has received previous warnings or has been the subject of legal action: Has the person the subject of the complaint received a previous warning or other non-coercive approach or has the person been the subject of legal action? In these cases a more formal and coercive approach is likely to be more appropriate.

·         An educative approach would be effective: An educative approach can often be very effective. This can be very dependant on the person involved rather than the type of breach.

 

6.4     Priority of Action

 

Not all requests for Council action will warrant detailed investigation or the taking of action, and Council resources may inhibit the taking of action in all cases where, otherwise, action would be justified. Council does and will however, continue to record all complaints of unauthorised development or activity and breaches even though some of these may not be dealt with for a considerable time.

 

Priority of action will be given where the incidence of unauthorised development or activity or breach meets one or more of the following criteria.

1        Continuation of the unauthorised development or activity or breach would fail one of the tests set out in 6.2.

 

2        Immediate action will readily prevent further unauthorised work or breach being carried out (ie Unauthorised building work is in progress).

 

3        Action is part of a Council adopted compliance program.

 

4        The matter warrants prosecution and evidence must be collected and prosecution commenced within a statutory time period (generally 6-12 months).

 

5        As a matter of fairness and equity, the matter should be dealt with now as the Council has been dealing with similar matters.

 

Order of priority of this Policy and intended actions in each case will be based on the results of Tests T2 and T3; and on the number of similar cases known or expected. This action plan does not preclude an urgent priority being allocated by staff or by Council resolution in critical cases, for example, involving life safety issues.

 

6.5     Types of responses

 

Council’s compliance action in the case of unauthorised developments, activities or breaches will involve one or more of the following types of responses.

 

6.5.1  No action

No action may be taken when the unauthorised development or activity or breach is a technical breach only, when there is a lack of evidence, when no action is justified by the public interest or some other appropriate reason. Council may not have authority to take action to remedy the breach and may be required to refer the matter to another government authority.

 

6.5.2  Educative

It may be that by counselling the person, the subject of the investigation, to educate them on the relevant Council/legislative requirements, that the unauthorised activity or development or breach will cease immediately without any likelihood of reoccurrence. For example breaches of conditions of consent relating to noise are often easily remedied by an educative approach.

 

6.5.3  Negotiation

This may involve advising the person responsible as to the nature of the breach and the relevant Council/legislative requirements, then issuing a letter requiring that work be done or activity cease in lieu of more formal action. It may also involve issuing a letter that asks the subject of the investigation to “show cause” as to why Council should not exercise its discretion to implement specified enforcement action.

 

Negotiation may involve asking the proponent to provide an undertaking to take action or cease action to bring the development, activity or breach into compliance.

 

6.5.4  Await Determination of Approval

This option is particularly relevant where it is likely that the development, activity or breach would gain consent/approval (Test 1). In the case of unauthorised building work, it would be necessary for the building work to have ceased.

 

6.5.5  Infringement Notice

Council may issue of a Penalty Infringement Notice. There are number of Penalty Notice offences under the relevant legislation ranging from $100 to $1500.

 


6.5.6  Notices/Orders

Council may issue a Notice of Intention to Serve an Order or Notice under the relevant legislation followed by, subject to the outcome of any representations made, service of an appropriate Order or Notice.

 

If the Order is not complied with, Council may, under the Local Government Act 1993 and/or the relevant legislation:

1        enforce the order by undertaking the necessary work and recovering the costs from the proponent; or

2        commence court proceedings for the issuing of court orders to enforce the Council order; or

3        Council may issue a penalty notice of $1500 for not complying with certain orders under the various legislation.

 

6.5.7  Injunction

Council may commence court proceedings for immediate injunctive relief to prevent a breach from continuing or occurring. This is generally an action of last resort and will generally be preceded by at least a letter warning that Council intends to take the action.

 

6.5.8  Prosecution

Council may commence court proceedings for an offence against the relevant Act or Regulation and seek a penalty. While the penalty may be a deterrent to further breaches, separate action may need to be taken to restrain the breach.

 

 

7.0     PREPARATION OF INTERNAL OPERATING PROCEDURES

 

A range of Standard Operating Procedures have been developed for the various areas of operations and responsibilities within Council which further support this Policy.

 

As time permits, a full suite of SOP’s will be prepared and presented to the General Manager for endorsement and implementation in conjunction with this Policy relating to all regulatory activities.

 

The responsibility for the preparation of the Operating Procedures rests with the Responsible Officer who is responsible for the implementation of the particular legislation or compliance role.

 

 

---oo0oo---

 

 


General Purpose Committee

18 March 2009

Director Environment & Planning's Report

ITEM 9.2      LF4035             180309         Report on Modification to Erect Multi-Unit Housing - 6 Units - 61 Charlton Street, Nambucca Heads

 

AUTHOR/ENQUIRIES:     Ben Oliver, Senior Town Planner         

 

Summary:

 

Applicant:                     Angelo Antidormi

 

Proposal:                      Demolish existing dwelling and erect multi-unit housing comprising 6 units

 

Property:                       61 Charlton Street, Nambucca Heads

 

Zoning:                          2(b) Residential (Medium-High Density)

 

 

The development consent for demolition of an existing dwelling and erection of 6 x 2 bedroom units was originally approved by Council on 7 Oct 2003 and subsequently modified on 12 May 2005.

 

Having recently satisfied Council that the development has physically commenced, the new owners of the land wish to proceed with construction of the development. Before committing to construction, the owners have requested that Council consider further modifications to the approved development. The original proposal was for a 3 level building, modular in design, incorporating roof decks and basement car parking for 11 vehicles. The new building will retain the approved height, bulk and scale of the original proposal, but proposes a significantly different building in terms of its architectural design and appearance and its material finish. The design changes are intended to improve the form and function of the building and are considered to be an improvement on the original design and more compatible with the existing residential character of the area.

 

The modification application is reported to Council after being “called in” by Councillor Smyth.

 

NOTE: This matter requires a “Planning Decision” referred to in Section 375A of the Local Government Act 1993 requiring the General Manager to record the names of each Councillor supporting and opposing the decision.

 

 

Recommendation:

 

That application for modification to DA 2004/014/02 be approved by Council, subject to standard conditions of development consent issued under delegated authority.

 

 

OPTIONS:

 

Council has the option of not supporting the proposed modification application, in which case the landowners would have to revert back to the approved development. It should be highlighted however, that the proposed modifications and in particular the removal of the roof decks, are a significant improvement on the original design approved by Council and it is preferable that the modifications receive Council’s support.

 

 

CONSULTATION:

 

The modification application was referred to the Department Engineering Services and Health and Building Department for their consideration. Given the similarity between the original proposal and new proposal, no objections were raised to the modification proposal. However in the circumstances, it was decided to apply a number of additional, but standard engineering conditions of consent to the modified consent. These conditions relate to the requirement for detailed stormwater plans to be submitted to Council for on-site stormwater detention and that the developer be responsible for the required upgrade (construction of kerb and gutter) along the Charlton Street frontage of the development site.

 

 

PROPOSAL

 

The proposed new building is substantially the same as the building approved previously by Council. The proposed internal and external changes will improve the form and function of the building, while maintaining and not exceeding the height bulk and scale of the original proposal. The main changes are as follows:

 

·              The roof decks and external stair cases approved in the original proposal have been removed and the new building now has a conventional pitched roof with highlight windows.

·              A lift has been installed in the new building to complement the internal stair well.

·              The new building comprises of 4x2 bedroom and 2x3 bedroom units, as opposed to 6x2 bedroom units.

·              The internal layout has been redesigned to ensure that each unit only occupies one level, as opposed to individual units being spread over two levels, with internal stairways.

 

 

DISCUSSION:

 

Section 96 Assessment

 

Section 96 (1A) and (3) of the Environmental Planning and Assessment Act 1979 allows a consent to be modified where:

 

·              The modification is of minor environmental impact.

 

Response: Minor and acceptable environmental impacts are expected with the development of the land for residential housing, however no additional environment impacts are expected which have not already been accounted for in the assessment and approval of the original application.

 

·              The development as modified is substantially the same development as approved.

 

Response: The new development is compatible with and substantially the same as the approved development in terms of unit density, height, bulk and scale. The design changes are simply intended to improve the form and function of the building.

 

·           The application has been notified in accordance with a DCP for notification and advertising.

 

Response: The modification application was notified to adjoining landowners and one (1) submission was received. 

 

·              Any submissions concerning the modification have been considered.

 

Response: The submission raised concerns with the design and appearance of the building and its compatibility with the residential character of the area. Some of the concerns raised in the submission were shared by Council’s Planning Department and the applicant was requested to make a number of additional changes to ensure that the height, bulk and scale of the building was compatible with the original development. Amended plans were received which demonstrated that the new building did not exceed any of the approved development standards and the amendments were therefore satisfactory to Council’s Planning Department. The amended plans were renotified to the adjoining landowners who made the original objection to the proposal and in response, no further submission was made to Council. 

 

·              Council has considered any relevant matters under Section 79C(1).

 

Response: The matters for consideration under Section 79C of the EPA Act 1979, have been considered in relation to the modification application. In summary, it is considered that the modification application is an improvement on the original design and it is preferable that the new building be erected on the site. 

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

The development will result in minor environmental impacts including the removal of several trees on the property, which is largely unavoidable and has been considered in the original granting of approval to the development of the land. 

 

Social

 

The modification application will result in the demolition of an existing dwelling and replacement with six (6) new dwellings. Existing services in the area are generally adequate to cope with the increased social activity generated by the development. Conditions of consent will ensure that the developer is responsible for any required upgrade to Council’s services to accommodate the increased population density in the area.

 

Economic

 

Positive economic impacts include the employment activity generated in the construction phase and increased rates to Council resulting from urban consolidation in an identified medium-high density area.

 

Risk

 

The applicant seeks Council’s approval to the proposed modifications and there is no conceivable risk to Council by the approval of the modification application. 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

There are no impacts on current and future budgets.

 

Source of fund and any variance to working funds

 

Not applicable.

 

Attachments:

1View

5818/2009 - Original Approved Plan and Modified Plan

 

 

 


General Purpose Committee - 18 March 2009

Report on Modification to Erect Multi-Unit Housing - 6 Units - 61 Charlton Street, Nambucca Heads

Attachment 1

5818/2009 - Original Approved Plan and Modified Plan

 


 


General Purpose Committee

18 March 2009

Director Environment & Planning's Report

ITEM 9.3      SF241              180309         Updated Report on Progress of Nambucca Local Environmental Plan 2008 (NLEP 2008)

 

AUTHOR/ENQUIRIES:     Grant Nelson, Strategic Planner         

 

Summary:

 

The purpose of this report is to inform Council on the progress of Draft Nambucca Local Environment Plan 2008 (NLEP 2008) and for Council to workshop some specific items that need to be finalised to enable a resolution to request a S65 Certificate from the Department of Planning.

 

The draft LES and Draft NLEP 2008 have been prepared in accordance with the directions, plans, policies and State Government guidelines. The Draft LEP has incorporated a number of recommendations of the Structure Plan, Draft Rural-Residential Land Release Strategy and other local strategic documents. The final draft written instrument, LEP maps and the Local Environmental Study (LES) were provided to the Department of Planning legal branch for review on the 12 June 2008.

 

The Department of Planning provided comments to Council on the 11 September 2008. Since this time Council staff have made appropriate amendments, and incorporated other changes proposed or required through the Rural Residential Strategy, Council Land Reclassifications, SEPP’s and ongoing changes to the standard instrument and planning reforms.

 

Council has previously resolved to seek a Section 65 Certificate and place the Draft LEP on public exhibition. In light of the additional work that staff have had to undertake to comply with the changing requirements it is considered appropriate that a new resolution is passed.

 

NOTE: This matter requires a “Planning Decision” referred to in Section 375A of the Local Government Act 1993 requiring the General Manager to record the names of each Councillor supporting and opposing the decision.

 

Recommendation:

 

1           That Council resolve to refer to the new comprehensive LEP as Draft Nambucca LEP 2009.

 

2           That Council request that the Director-General issue Council with a certificate pursuant to section 65(1) of the EP&A Act, to enable Council to exhibit the draft plan.

 

3          That once a Section 65 certificate is received from the Director General for the Department of Planning, a workshop be conducted with all interested Councillors before the draft plan is placed on public exhibition.

 

 

OPTIONS:

 

Council may resolve to defer the matter however it is not recommended as Council will have sufficient time to review the Draft LEP during and after the close of exhibition at which time a further workshop will be held.

 

 

DISCUSSION:

 

Due to the passage of time from when Council first started the new comprehensive Nambucca LEP process and the many procedural and policy changes on behalf of the Department of Planning it is recommended that the new LEP be referred to as the Nambucca LEP 2009 (NLEP 2009).

 

A workshop was conducted on 22 March 2008 to discuss the preparation of draft Nambucca Local Environmental Plan (NLEP) 2008. Then at the 3 July 2008 meeting, Council considered a report on the progress of the Draft LEP when it resolved as follows:

 

1          That Council note the report but remove the Preservation of Trees or Vegetation, Clause 5.9 from the draft Local Environmental Plan.

 

2          That once a Section 65 certificate is received from the Director General for the Department of Planning, a workshop be conducted with all interested Councillors before the draft plan is placed on public exhibition.

 

Prior to the workshop, Councillors were provided with a report that outlined the changes from the current planning instrument (NLEP 1995) to the proposed draft plan. Councillors were also provided with a copy of the draft written instrument. Examples of the draft LEP maps were presented at the workshop for consideration.

 

Since the workshop, staff have made considerable progress in the preparation of the draft NLEP 2008. The final draft written instrument has been completed, copies of which have been circularised for Councillor’s information.

 

In addition to the text component, the draft plan also comprises LEP zoning maps, and various overlay maps such as, lot size maps, mineral resources buffer and water catchment area maps. There are over sixty (60) such maps and due to the number of maps, hard copies have not been reproduced or attached to this report as further amendments may be required following this meeting and prior to referring to the Department. However, some examples will be displayed on the screen at the meeting.

 

On the 12 June 2008, the Department of Planning (DoP) was provided with copies of the LES, LEP maps and the written instrument of draft NLEP 2008. The DoP was requested to refer the draft LEP to the Parliamentary Council for its review, and that the Director-General issue a Section 65 Certificate to enable Council to exhibit the draft plan.

 

DoP Legal branch reviewed the draft document and provided Council with feedback on the 11 September 2008. Council staff made a number changes based on this feedback primarily related to the following matters:

 

·              Repetitive and unnecessary objectives;

·              Inappropriate or inconsistent landuses;

·              Modification to clause phrasing; and

·              Changes based on introduced SEPP’s (such Infrastructure, Mining, Seniors, Exempt and Complying).

 

Based on the feedback from DoP Legal branch a S65 Certificate was not issued by the Director General with the initial referral to DoP. Given Council has now incorporated the majority of these changes it is now recommended that Council again request a S65 certificate be issued.

 

It is noted that some changes proposed by legal branch were not endorsed by the Northern Region Office of DoP or Council staff and have not been included for various reasons. Should the Department not accept our current version the draft LEP, Council staff will be required to work through the proposed amendments with the DoP, until a S65 certificate is issued.

 

LOCAL ENVIRONMENTAL STUDY

 

The DoP directed Council to prepare a LES in accordance with section 57 of the EP&A Act. As noted above, the LES has generally been completed. It is noted that Council received direction from the DoP that the LES could be based on existing strategies, policies and plans where available.

 

Council’s attention is drawn to the fact that any draft LEP is required to be prepared within the limitations of the state policy framework, including the North Coast Regional Environmental Plan (REP); recently released Mid North Coast Regional Strategy; Farmland Mapping Project; Coastal Policy; State Environmental Planning Policies (SEPP); and Section 117 Directions. These plans, policies and directions substantially govern the content and operation of the draft plan. These matters are fully addressed in the LES.

 

The LES also addresses proposed changes to specific locations. This includes items relating to draft LEP Amendment 64, Lower Nambucca (draft LEP 47 and 65) and the land comprising Lot 3 DP 749153 (draft LEP 23 Lower Nambucca between Highway and river).

 

 

CONSULTATION

 

Prior to the workshop in March 2008, a number of meetings were conducted by the Department of Planning (DoP) and with Mid North Coast Councils to discuss the required measures to implement the standard template LEP. Following the section 62 consultation, a number of discussions were held with various government agencies to consider their requirements for the draft plan. A follow-up meeting with representatives of the DoP, Department of Environment and Climate Change (DECC), and the Fisheries Division of the Department of Primary industries (DPI) was held on the 9 May 2008 to discuss their particular requirements relating to the environmental protection and waterway zones. The requirements of the DoP and other government agencies have placed certain limitations on the preparation of Draft LEP 2008 in accordance with the standard template LEP.

 

The DoP previously advised that before any Council submits their draft plans for a Section 65 certificate it will be necessary to arrange a meeting to review the written instrument and plans before they are accepted. This meeting was held on the 20 May 2008. In accordance with the DoP’s advice a number of suggested amendments have been incorporated, including zoning all designated SEPP 14 – Coastal Wetlands and SEPP 26 – Littoral Rainforests as E2 – Environmental Conservation.

 

The DoP regional branch in Grafton has now be delegated to review draft LEP’s within their region and a more recent copy of the Draft LEP was forwarded to the regional office prior to this meeting in order to gain some additional feedback prior to the Council General Purpose Committee meeting in March.

 

NLEP 2008

 

The report provided to Councillors before the previous workshop advised that the draft plan will generally have similar aims, and where possible, similar provisions and corresponding zones to the current LEP.  However, despite the general transition from the existing LEP to the new standard format there are a number of specific items which have been highlighted as matters which do not allow for a simple transfer these include but are not limited to the following:

 

 

1          The RU1 Primary Production zone will generally include land identified as ‘farmland’ in the DoP’s Mid North Coast Farmland Mapping Project.

 

Comment:

 

All land shown on the Farmland Map, not already identified in NLEP 1995 for urban purposes or within the “broken black line” where rural-residential development could be considered has been zoned RU1 Primary Production.

 

2          There is no corresponding zone for the 1(d) Rural (Future Urban) under NLEP 1995. Any such land will need to be identified in an urban land release strategy. This has essentially been achieved in the ‘Agreed Growth Areas’ identified in the Mid North Coast Regional Strategy.

 


Comment:

 

Land currently zoned 1(d) has been zoned to reflect the most appropriate adjoining zone under draft NLEP 2008.

 

3          There is no specific corresponding residential zone for the R4 High Density Residential zone in the current LEP. However, this zone can be applied to the Liston Street precinct in accordance with the DCP 3 review and the place based management plans.

 

Comment:

 

The R4 High Density Residential zone has been applied to the Liston Street precinct, and a 20m height limit has been shown on the ‘Height of Buildings’ map. Council is yet to resolve to endorse a 20m height limit in Wellington Drive

 

4          There is no corresponding zone for the B4 Mixed Use zone in the current LEP. However, it is considered that this zone should be retained for future consideration to replace some of the current residential and/or commercial zones. Any land rezoned to the B4 zone would be in accordance with the recommendations of the Structure Plan.

 

Comment:

 

The Structure Plan has recommended that mixed use development should be allowed in appropriate locations to encourage employment opportunities. The B4 Mixed Use zone has been applied to the following locations:

 

·              a portion of the existing 3(a) Business zoned land along the northern side of Valla Beach Road, Valla Beach;

·              the 2(a) Residential and 3(a) General Business zoned land along Ocean Street, Scotts Head;

·              the 2(d) Residential (Tourist) and 3(a) General Business zoned land on the north eastern corner of the Pacific Highway and Riverside Drive, Bellwood;

·              the 2(a) Residential zoned land along the Pacific Highway frontage north of walkway mid-way between Bellwood Road and Willunga Avenue, Bellwood; and,

 

5          The IN3 Heavy Industry zone corresponds with the 4(a) General Industrial zone, in that, heavy industry is not prohibited. The IN1 General Industrial zone will generally apply to existing 4(a) Industrial zoned land in Macksville and Nambucca. However, it is intended to use the IN3 zone in the Valla Urban Growth Area.

 

Comment:

 

In discussions held with the DoP, Council officers were advised that if a particular zone under the standard template LEP is not used, that zone should be excluded from the draft plan. Any use of such a zone will need to be incorporated in a future LEP amendment. At this stage IN3 has not been included in the draft plan.

 

6          The SP3 Tourist zone provides for a variety of tourist oriented development. However, it is intended to only use this zone to replace the land currently zoned Zone 10) and include objectives to reflect the primary local objective of the current Zone 10 – Low Density Tourist, ie ‘to permit low density development’.

 

Comment:

 

The SP3 Tourist zone has been applied to the existing Zone No 10 – Low Density Tourist zoned land along the western side of the Pacific Highway in the Lower Nambucca locality. The King and Campbell report dealing with the Lower Nambucca locality identified the subject land as being suitable for an education facility. Educational establishments have therefore been included in the land use table of the SP3 zone as permissible with consent.

 

7          Waterways are not currently zoned in NLEP 1995. The DoP has advised that waterways are required to be zoned. The guidelines relating to waterways provides the following advice:

·           ‘All expansive water bodies (lakes, estuaries, bays, etc) should be part of the waterways zones.

·           The lateral extent of the application of the waterways zones be, as a minimum, to the tidal limits within the relevant waterway system and that the cross sectional extent be to the highest astronomical tide, or Mean High Water Spring tide, therefore encompassing the maximum area subject to tidal inundation.

·           That within the extent of the land so defined and in consideration of specific advice to be provided by DoL, NSW Maritime Authority, DNR and DPI

·           The W1 Natural Waterway zone be applied to those areas with habitat, nursery or other identified environmental values.

·           The W2 Recreational Waterway zone be applied in areas utilised for recreational boating and fishing purposes.  This is suggested as the default zone.

 

Comment:

 

In accordance with the guidelines, the W1 Natural Waterways zone has been applied to those areas with habitat, nursery or other identified environmental values, and the W2 Recreation Waterways zone has been applied to the majority of waterways utilised for recreation boating and fishing purposes.

 

8          Clauses 3.1 and 3.2 of the standard template LEP refers to exempt and complying development described in Schedules 2 and 3. Subject to DoP approval, the provisions of DCP 10 for Exempt and Complying Development will be included in Schedule 2 and 3 of draft NLEP 2008. However the recent release of the SEPP (Exempt and Complying Development) is required to be considered in the preparation of this part.

 

Comment:

 

The new exempt and complying provisions under DCP 10, adopted by Council on 20 December 2007 and effective from 1 March 2008, have been included in draft NLEP 2008 in accordance with the standard template LEP requirements. However, due to the recent commencement of the SEPP (Exempt and Complying Development) Schedules 2 and 3 of the NLEP 2008 need to be prepared in accordance with circulars released with the new SEPP. These schedules are still being prepared. Amendments will be in accordance with the SEPP and consistent with Council’s DCP 10.

 

9          Clause 4.1 is an optional clause that refers to minimum subdivision lot size. Clause 4.1(3) states that the size of any lots must not be less than the minimum size shown on the ‘Lot Size Map’. To ensure that minimum lot sizes for rural, environmental and residential zoned land, described in clauses 12 and 26 of NLEP 1995 are retained as statutory development standards, they will need to be shown on a ‘Lot Size Map’ in accordance with clause 4.1 of the standard template LEP.

 

Comment:

 

This optional clause has been included in draft NLEP 2008 and a ‘Lot Size Map’ has been prepared to replace the current controls that apply to the subdivision of land.

 

10         Clause 4.3 is an optional clause that refers to height of buildings. This Clause states that the height of a building is not to exceed the maximum height shown on the ‘Height of Buildings Map’. To ensure that height of buildings in the residential and business zones described in Clauses 28 and 32 of NLEP 1995 are retained as statutory development standards, they will need to be shown on a ‘Height of Buildings Map’ in accordance with Clause 4.3 of the standard template LEP.

 

Comment:

 

This optional clause has been included in draft NLEP 2008 and a ‘Height of Buildings Size Map’ is yet to be finalised due to the recent Model Housing Code 8.5m maximum height and Council's resolution to pursue 5m in Matthew Street, Scotts Head and to review the 5m heights in the other areas of the Shire. A late report is currently being prepared in regard to the other 5m areas in the Shire, as resolved by Council at its meeting of 5 March 2009, as this will need to be resolved to enable the ‘Height of Buildings Size Map’ to be finalised.

 

11         Clause 14 of NLEP 1995 relates to the erection of a dwelling house on vacant land zoned rural or environmental protection. In addition to the erection of a dwelling-house on minimum allotment sizes allowed under the subdivision provisions, this clause also refers to lots created under SEPP No 1 and SEPP No 4; allotments resulting from a boundary adjustment, road widening or resumption; on land comprising an existing parcel; additional dwelling-houses to accommodate rural workers; and construction of a second dwelling and subsequent demolition of the first dwelling. There are no provisions in the standard template LEP to address many of the provisions of clause 14, particularly the erection of a dwelling on an ‘existing parcel’ (as defined in NLEP 1995). It is intended to include sub-clause 4.2B in NLEP 2008 to reflect the ‘erection of dwelling house’ provisions. 

 

Comment:

 

A new local provision (Clause 4.2B) has been included in draft NLEP 2008 to generally replace the current provisions relating to the erection of dwelling houses. Clause 4.2B states:

 

4.2B   Erection of dwelling houses on vacant land zoned large lot residential, rural and environment protection

 

(1)      A dwelling-house may, with the consent of the Council, be erected on vacant land within Zone R5, RU1, RU2, RU3, E2 or E3 only where:

 

(a)      the land comprises an allotment not less than the minimum subdivision area created in accordance with Clause 4.1, as shown on the Lot Size Map, or

(b)      on a vacant lot upon which a dwelling house may have been lawfully erected immediately prior to the gazettal of this Plan, or

(c)      on vacant land created by a subdivision in accordance with Clause 4.6 or State Environmental Planning Policy No 1 - Development Standards, and

(d)      the lot has frontage to an existing public road that provides all-weather two-wheel drive access, which is under Council’s control and is maintained by Council.

(2)      In this clause, vacant lot means a lot on which no dwelling house is erected. 

(3)      Nothing in this clause prevents a person, with development consent, from erecting a dwelling that will wholly replace another dwelling that was lawfully erected.

(4)      Where development for the purpose of a dwelling house may be carried out on an allotment of land within a rural zone or large lot residential zone, a person may, with the consent of the Council:

(a)      alter or add to a dwelling house erected on the allotment so as to create two dwellings; or

                             (b)      erect two attached dwellings on the allotment

 

12         Clause 24 of NLEP 1995 relates to industries undertaken on rural land. There is no specific clause in the standard template LEP that refers to industrial land uses on rural land. Industries could be included as a permissible use in the RU2 Rural Landscape land use table, however this may create a number of land use planning complications.

 


Comment:

 

It is recommended that ‘Industry’ and ‘light industry’ be prohibited land uses in the land use tables of the RU1 Primary Production and RU2 Rural Landscape zones under draft NLEP 2008. Rural Industry is a permissible landuse in these zones and includes the following activities: agricultural produce industry,  livestock processing industry, composting facilities or works, sawmills, log processing, stock and sale yards, servicing and repair of equipment used for agricultural enterprise.

 

13         Clause 61 of NLEP 1995 relates to the construction of dams. There is no equivalent provision in the standard template LEP. These provisions may need to be included in a DCP relating to rural lands. It is however intended to include dams constructed for the purpose of agriculture in accordance with the provision of Clause 61(2) as exempt or complying development in the exempt and complying provisions of NLEP 2008.

 

Comment:

 

Development consent is not required for the construction of dams for the purpose of agriculture under the current planning instrument (NLEP 1995). A similar provision has been provided in the exempt schedule of the draft LEP to ensure consent is not required to construct types of farm dams.

 

14         Clause 63 of NLEP 1995 relates to restrictions that apply within the Water Supply Protection Buffer Bowraville. It is intended to include Subclause 5.15 in NLEP 2008 to retain this local provision. It is also intended that land affected by this provision will be shown on an overlay or included in the Land Zoning Map.

 

Comment:

 

A new local provision (Clause 5.15) has been included in draft NLEP 2008 to replace the current provision relating to restrictions within the water supply protection area. The area covered by this local provision is shown on the ‘Water Supply Protection Map’. Given the SEPP infrastructure Council can no longer prohibit extractive industry in the buffer area, rather we can only require appropriate consideration as part of Development Application.

 

15         The matter relating to small lots less than 40ha, which do not have a dwelling entitlement, was discussed with the DoP and they advised that a new local provision to enable a dwelling entitlement for such allotments may be considered. However, since this time the Rural Lands SEPP has been released which would prohibit this type of Development.

 

Comment:

 

As stated above, the content and operation of draft NLEP 2008 is limited by the requirements of the standard template LEP and other legislative provisions, including the Minister’s 117 Directions.

 

With respect to increasing the number of dwelling entitlements on vacant lots that do not currently have a dwelling entitlement, section 117 Direction No 1.5 Rural Lands is applicable. The objectives of this direction are to:

 

a          protect the agricultural production value of rural land,

b          facilitate the orderly and economic development of rural lands for rural and related purposes.

 

This direction states that a draft LEP must be consistent with the Rural Planning Principles listed in State Environmental Planning Policy (Rural Lands) 2008. This SEPP took effect on 9 May 2008 (a more detailed report regarding this policy will be provided to Council at a subsequent meeting).

 

The Rural Subdivision Principles under the SEPP are:

 

a        the minimisation of rural land fragmentation,

b        the minimisation of rural land use conflicts, particularly between residential land uses and other rural land uses,

c        the consideration of the nature of existing agricultural holdings and the existing and planned future supply of rural-residential land when considering lot sizes for rural lands,

d        the consideration of the natural and physical constraints and opportunities of land,

e        ensuring that planning for dwelling opportunities takes account of those constraints.

 

The DoP has verbally advised that any increase in the number of dwelling entitlements, not in accordance with an adopted and approved rural-residential strategy, would not satisfy the rural planning principles listed in SEPP (Rural Lands) 2008. As such, no further action has been taken to increase the number of dwelling entitlements as part of this LEP process.

 

16        Clause 15 of the Nambucca LEP 1995 permits Rural Dual Occupancy Development subject to it being attached to the main house. It is intended to include this Clause in the NLEP 2008 (Clause 4.2B). However, there is also the ability to include a secondary dwelling, which does not have to be attached but has restrictions on size.

 

Comment:

 

Dual Occupancy developments have been removed as a permissible use in rural and rural residential zones, however clause 4.2B will permit attached dual occupancy developments and clause 5.4(9) will permit secondary dwellings to a max of 60m2 or 50%, whichever the greater of the total floor area of the primary dwelling. In this way detached dual occupancies are not permissible in rural zones unless they are developed in accordance with the secondary dwelling clause.

 

17        Comments from the DoP legal branch addressed the following matters:

 

·           Repetitive and unnecessary objectives;

·           Inappropriate or inconsistent landuses;

·           Modification to clause phrasing;

·           Mapping format;

·           Addition of floor space ratios; and

·           Changes based on introduced SEPP’s (such Infrastructure, Mining, Seniors, exempt and complying).

 

Comment:

 

As stated previously given the issues raised by the DoP Legal Branch were relatively minor, the majority of proposed changes have been incorporated. However, some changes were not supported by DoP regional office who gave advice to refer to recently gazetted LEP’s from other Council’s to assist in drafting certain clauses. To this effect Council staff were referred to the Tweed and Canada Bay Local Environmental Plans to assist in drafting some clauses.

 

Proposed changes which were not endorsed by Council staff included some land use permissibility changes, which permitted varying dwelling types across all residential zones. The DoP Legal Branch was encouraging a density based land use permissibility eg Detached Dwellings not permissible in high Density Zones and Residential Flats not permissible in low density zones. Other gazetted LEP’s have retained a similar approach to our draft, therefore it does not seem necessary to amend the LEP in this manner.  

 

The more significant changes proposed by the DoP included the incorporation of Floor Space Ratios in Urban Zones. The inclusion of floor space ratios will complement the proposed heights and floor space ratios recognized in the DCP Review and the existing density provisions within the NLEP 1995.

 

After consideration a floor space ratio map is now included in the NLEP 2008.


18        Lower Nambucca (Land the subject of Draft NLEP Amendment 23 - Lot 3 DP 749153, 6040 Pacific Highway, Nambucca Heads)

 

Comment:

 

The majority of the above identified land is currently zoned 1(b) Non-Urban “B” pursuant to Interim Development Order No 1 1967, with part zoned 2(d) Residential (Tourist) pursuant to NLEP 1995.

 

Draft Amendment 23 proposes to rezone that part of the land identified as 1(b) Non-Urban “B” under the old IDO, to part 1(a2) Rural (Prime/Flooding) and part 7(a) Environmental Protection (Wetlands). This amendment has not proceeded at the request of the landowner who sought a number of deferrals pending the outcome of studies that was to be undertaken.

 

With the Department of Planning introducing the new Statewide “Template LEP” requiring all Council’s to prepare a new LEP in accordance with the zones identified in the Template, this matter must now be resolved to ensure it is in accordance with the Template LEP.

 

Under the Template the 2(d) Residential (Tourist) zone from the current NLEP 1995, does not have a similar zone and it was considered that the most appropriate residential zone for the 2(d) conversion was the R2 Low Density Residential zone. Whilst the R2 Low Density Residential zone provides for a lesser density than the current 2(d) zone, it is proposed that a floor space ratio/density map will be prepared in accordance with the provisions of the Template LEP over all land previously zoned 2(d) providing a similar density as current.

 

The remaining part of the land zoned pursuant to the IDO, is proposed to be zoned part RU1 Primary Production zone, part E2 Environmental Conservation and part E3 Environmental Management.

 

Council wrote to the landowner in 2008 advising of the proposed zones under the new Template LEP and sought comment back. The landowner subsequently engaged and planning consultant and provided a response, particularly addressing the current permissible landuses under the IDO and the significant differences with the permissible landuses under the RU1 zone in the new template (refer to circularised document).

 

The proposed E2 and E3 zones reflect the boundaries of the SEPP 14 Wetlands (DoP) and the Astronomical High Tide boundary for the Saltmarsh Endangered Ecological Community as provided by the DECC and Department of Primary Industries (Fisheries).

 

The matter is now presented to Council as it is considered that the proposed RU1 Primary Production zone, E2 Environmental Conservation and E3 Environmental Management zones fairly reflect the land constraints and as no additional studies in regard to flooding have been forthcoming from the landowner, the landuses currently permissible under the IDO, are not justified to be carried over to the new LEP in light of Council’s Floodplain Risk Management Plan which identifies this site as “floodway”.

 

Should the Flood Study for which Council has been funded for from Watt Creek to the Nambucca River Mouth bring about a change in the floodway classification and flood levels for this site, the applicant may then wish to pursue the rezoning of this site at that stage.

 

19        Rural-Residential — Council’s resolution to zone all the “broken black line area” as R5 Large Lot Residential but its release controlled by an endorsed Strategy.

 

Comment:

 

In accordance with Council’s resolution, a meeting with the Minister for Planning, the Hon Christine Keaneally was held on Wednesday, 4 March 2009, when the Mayor put forward Council’s case for zoning of the entire “broken black line area” as R5 Large Lot Residential. At the meeting the Mayor advised the Minister that Council will be including the R5 zone over the entire “broken black line area” and several local provision clauses and a lot size map will be used to control the release of the rural-residential land.

 


The proposed clauses are:

 

Inclusion of an additional objective to clause to 4.1 minimum lots size:

(c)      to ensure land zoned R5 Large Lot Residential is developed in accordance with Council’s Local Growth Management Strategy – Rural Residential component.

and the inclusion of the following 4.2C Local Provision Clause.

4.2C   Large Lot Residential Subdivision

 

(1)      The objective of this Clause is to ensure Large Lot Residential subdivision occurs in accordance with the Nambucca Local Growth Management Strategy – Rural-Residential Component.

(2)      This Clause applies to land zoned R5 Large Lot Residential;

(3)      Land to which this clause applies shall not be subdivided to create lots less than 40ha in size unless the land is identified as short-medium term release within the Nambucca Local Growth Management Strategy – Rural-Residential component

(4)      Land to which this Clause applies shall not be subdivided to create lots less than 1ha in size.

(5)      The Council with the approval of the Director-General may review and amend the area identified as short-medium term release within the Nambucca Local Growth Management Strategy – Rural-Residential component in accordance with the Department of Planning Settlement Planning Guidelines.

 

20        Coronation Park — Reclassification from Community Land to Operational Land and rezoning from 6(a) Public Recreation to 2(a) Residential which is R1 General Residential in the new Template LEP

 

Comment: 

 

The reclassification of part of Coronation Park has been the subject of a number of reports to Council including the report following the Public Hearing as required under the Local Government Act for the reclassification of public land. Council will recall at its meeting of 4 December 2008 when considering the regional and local community infrastructure program funding no resolution was made in regard to the rezoning of the 1,640m2 of the unused section of Coronation Park to support the funding of the proposed amenities building.

 

It is therefore proposed to include the rezoning in the draft NLEP 2008 for the exhibition period which will enable residents to make further comment and provide Council further opportunity to consider the proposed rezoning after the exhibition of the draft LEP.

 

21        Reclassification of Community Land to Operational land and Public Hearing recently conducted for a number of areas within the Shire

 

Comment:

 

Following the public hearing into the identified parcels of land, a report was presented to Council at its meeting of 5 February 2009 when it resolved:

 

1        That Council proceed with the reclassification of part of Lot 40 DP 711098 (Kingsworth Estate) to operational land and the rezoning be incorporated into draft NLEP 2008, having corresponding R5 (Large Lot Residential) and RE1 (Public Recreation) zones under the Standard Template LEP.

 

 

2        That Council proceed with the reclassification of part of Lot 31 DP 248561 Yarrawonga St to operational land and the rezoning of the northern portion of the subject land (aligned with the northern boundary of the Binalong Way Road Reserve alignment) incorporated into draft NLEP 2008, having a IN2 (Light Industrial) zone under the Standard Template LEP.

 

3        That Council proceed with the reclassification Lot 163 DP 822649 to operational land.

 

These matters have been attended to in the draft NLEP 2008.

 

 

CONCLUSION

 

The draft LES and draft NLEP 2008 have been prepared in accordance with the directions, plans, policies and State Government guidelines. Insomuch that it is possible within the limitations of the standard template LEP and other legislative requirements, the draft LEP has incorporated a number of the recommendations of the Structure Plan, Rural-Residential Land Release Strategy and other local strategic documents.

 

 

CONSULTATION:

 

Director of Environmental Planning

Manager Planning and Assessment

Department of Planning

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

The draft NLEP 2008 has been prepared in accordance with the Standard Instrument LEP, in doing this it has been prepared to minimize any adverse impacts on the environment.

 

Social

 

The draft NLEP 2008 has been prepared in accordance with the Standard Instrument LEP, in doing this it has been prepared to minimize any adverse social impacts the plan may have on the community.

 

Economic

 

The new LEP will influence future economic development.

 

Risk

 

Given the draft LEP is a shire wide document there is guaranteed to be some error in its preparation (particularly in the content of the maps). This report proposes that Council request the DoP to allow exhibition of the draft documents. The exhibition will provide the community with an opportunity to comment on the draft plan and highlight site specific issues on individual parcels. The exhibition of the document will reduce the risk of errors being on the final gazetted plan.

 


FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

Preparation of the new LEP has been undertaken on a very tight budget allocation. It has been primarily undertaken by the Strategic Planner and other planning staff with some external consultancies. All of which have been achieved within the allocated Strategic Planning program budget.

 

Council has in the 2008/09 budget provided for the continuation of some Strategic Planning work which will flow from and support the new LEP.

 

Source of fund and any variance to working funds

 

Funds have been sought through Round 3 of the Planning Reform Fund to assist in the exhibition of the draft plan.

 

Attachments:

1View

Circularised Documents - Draft LEP 2008 Document (Councillors)

 

2View

Circularised Document - Landowners Submission - Lower Nambucca (Councillors)

 

 

 


General Purpose Committee - 18 March 2009

Updated Report on Progress of Nambucca Local Environmental Plan 2008 (NLEP 2008)

Attachment 1

Circularised Documents - Draft LEP 2008 Document (Councillors)

 

 

 

 

 

Placeholder for Attachment 1

 

 

 

Updated Report on Progress of Nambucca Local Environmental Plan 2008 (NLEP 2008)

 

 

 

Circularised Documents - Draft LEP 2008 Document (Councillors)

 

  Pages

 

 


General Purpose Committee - 18 March 2009

Updated Report on Progress of Nambucca Local Environmental Plan 2008 (NLEP 2008)

Attachment 2

Circularised Document - Landowners Submission - Lower Nambucca (Councillors)

 

 

 

 

 

Placeholder for Attachment 2

 

 

 

Updated Report on Progress of Nambucca Local Environmental Plan 2008 (NLEP 2008)

 

 

 

Circularised Document - Landowners Submission - Lower Nambucca (Councillors)

 

  Pages

 

 


General Purpose Committee

18 March 2009

Director Environment & Planning's Report

ITEM 9.4      SF744              180309         Report on Rehabilitation Bonds for Wia-Ora Sand and Gravel - DA 1995/102 and T1-9-57

 

AUTHOR/ENQUIRIES:     Greg Meyers, Director Environment and Planning         

 

Summary:

 

Council currently holds two Rehabilitation Bonds for two separately approved Designated Developments for an Extractive Industry – gravel and sand extraction in the Missabotti area.

 

The two Development Consents (DA 3040 and  DA 1995/102) carry specific consent conditions which required the lodgement of rehabilitation bonds with Council in the order of $2,000 and $10,000 respectively, to ensure that rehabilitation works are carried out following the extraction process on the sites. The release of the bonds rely upon the works being undertaken to the satisfaction of the relevant Government Authorities, which is now the Department of Water and Energy (DWE).

 

Numerous outstanding rehabilitation works were identified in 2004 when the first request for the refund of the bonds was sought. This matter has been outstanding since as many of the works are still considered outstanding by DWE.

 

The former operator of the Extractive Industry has since ceased operations and the company has been wound up all but for the two bonds which Council holds. The operator has sought a General Purpose Committee meeting inspection in an attempt to finalise the matter

 

The difficulty for Council is that the two developments were both Designated Developments requiring concurrence from the former State Government Departments before Council could have approved the developments and the two specific rehabilitation bond conditions were tied to the concurrence role as it was at that time. As such the decision to release the bonds is not for Council but that of the Department of Water and Energy.

 

Council’s does however have a regulatory role and if DWE is not satisfied there are three options, firstly, the operator to comply voluntarily with the requirements of DWE at which time the bonds may then be released, secondly, Council call upon the two bonds and arrange to have the works completed, or thirdly, take a regulatory role to have the matter finalised which may include legal action.

 

 

Recommendation:

 

That Council note the site inspection of the two former extractive industries referred to under DA 3040 and DA 1995/102 and encourage the operator to complete the outstanding works to the Department of Water and Energy’s satisfaction, after which time the bonds may be released.

 

 

OPTIONS:

 

The other options for Council are to call in the bonds and proceed to have the rehabilitation works completed to the Department of Water and Energy satisfaction or commence legal action to enforce the conditions against the operator.

 

 

DISCUSSION:

 

Council approved two Designated Developments for an Extractive Industry being DA 3040 and DA 1995/102. DA 3040 was conditionally approved in September 1993 which required under condition 11 the provision of a $2,000 bond as surety that rehabilitation works are completed. DA 1995/102 was conditionally approved in September 1995 which required under condition 5i the provision of a $10,000 rehabilitation bond. Both conditions are repeated below.


DA 3040

11       The applicant to enter into a bond to ensure rehabilitation of the excavation and stockpile sites together with all necessary landscape works required by the Department of Water resources and Department of CALM. Such bond shall be $2,000 and is to be paid to Council prior to operations. The amount will be refunded subject to all relevant Authorities being satisfied with the rehabilitation works.

 

DA !995/102

5i        The applicant to enter into a bond to ensure rehabilitation of the excavation and stockpile sites together with all necessary landscape works required by the Department of Water resources and Department of CALM. Such bond shall be $10,000 and is to be paid to Council prior to operations. The amount will be refunded subject to all relevant Authorities being satisfied with the rehabilitation works.

 

In 2004 the extractive industry operator sought the release of the two bonds which as identified in the above conditions requires the rehabilitation works to be completed to the satisfaction of the State Government Authorities which now rests with the Department of Water and Energy.

 

The then Department of Infrastructure, Planning and Natural Resources (DIPNR) participated in a site inspection on 8 June 2004, which led to the conclusion that a number of rehabilitation works were outstanding. The circularised letters provide Council with an understanding of the works considered outstanding by DWE for the above two DA’s, noting that the other bonds referred to in the DIPNR letter have since been released.

 

The former operator of the Extractive Industry has since ceased operations and the company has been wound up all but for the two bonds which Council holds. The operator has sought a General Purpose Committee meeting inspection in an attempt to finalise the matter

 

The difficulty for Council is that the two developments were both Designated Developments requiring concurrence from the former State Government Departments before Council could have approved the developments and the two specific rehabilitation bond conditions were tied to the concurrence role as it was at that time. As such the decision to release the bonds is not for Council but that of the Department of Water and Energy.

 

Council’s does however have a regulatory role and if DWE is not satisfied there are three options, firstly, the operator to comply voluntarily with the requirements of DWE at which time the bonds may then be released, secondly, Council call upon the two bonds and arrange to have the works completed, or thirdly, take a regulatory role to have the matter finalised which may include legal action.

 

 

CONSULTATION:

 

General Manager

Director Engineering Services

Manager Planning and Assessment

Manager Health and Building

Manager Community and Cultural Services

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

The rehabilitation bonds were imposed to ensure that the sites were rehabilitated post extraction and use to manage environmental degradation.

 


Social

 

The rehabilitation works were identified in the applicants plans and proposals and the bonds were imposed to ensure that the works were completed to ensure that the community or rate payer was required to manage the sites after extraction.

 

Economic

 

The bonds are held by Council there is an economic impact on the operator whilst ever the works remain outstanding

 

Risk

 

There is considerable risk if the rehabilitation works are not completed as the fragile location of the extraction sites do make them vulnerable in the event of severe flooding.

 

A significant risk also exists for Council if it were to call in the bonds and have the works completed and the bonds not cover the value of those works, at which time Council would wear those costs and would need to pursue the operator through the Courts, to seek reimbursement.

 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

There are no direct or indirect impacts on the current budget or future budgets if the works are completed by the operator. If the works are not completed and Council calls in the bonds and undertakes the required works the bonds may not cover the full cost of the works required and Council would need to pursue the balance from the operator.

 

Source of fund and any variance to working funds

 

Nil at this stage.

 

Attachments:

1View

Circularised Documents - Letter from DWE with attached photo of riverbank; Letters from DIPNR; Development Consent for DA 3040; Development Consent for DA 1995/102

 

 

 


General Purpose Committee - 18 March 2009

Report on Rehabilitation Bonds for Wia-Ora Sand and Gravel - DA 1995/102 and T1-9-57

Attachment 1

Circularised Documents - Letter from DWE with attached photo of riverbank; Letters from DIPNR; Development Consent for DA 3040; Development Consent for DA 1995/102

 

 

 

 

 

Placeholder for Attachment 1

 

 

 

Report on Rehabilitation Bonds for Wia-Ora Sand and Gravel - DA 1995/102 and T1-9-57

 

 

 

Circularised Documents - Letter from DWE with attached photo of riverbank; Letters from DIPNR; Development Consent for DA 3040; Development Consent for DA 1995/102

 

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