Minutes of Ordinary Council Meeting

NAMBUCCA SHIRE COUNCIL
Ordinary Council Meeting
MINUTES OF THE Ordinary Council Meeting HELD ON 01 April 2010

The following document is the minutes of the Council meeting held on 1 April 2010. These minutes are subject to confirmation as to their accuracy at the next meeting to be held on 15 April 2010 and therefore subject to change. Please refer to the minutes of 15 April 2010 for confirmation.

PRESENT

Cr Rhonda Hoban (Mayor)	Cr John Ainsworth
Cr Martin Ballangarry OAM	Cr Janet Court
Cr Brian Finlayson	Cr Paula Flack
Cr Mike Moran OAM	Cr Elaine South
Cr Anne Smyth

ALSO PRESENT

Michael Coulter (General Manager)	Bruce Redman (Director Engineering Services)
Greg Meyers (Director Environment & Planning)	Monika Schuhmacher (Minute Secretary)

PRAYER

Pastor Peter Lott from the Christian Life Centre, offered a prayer on behalf of the Nambucca Minister's Association.

DISCLOSURE OF INTEREST

Councillor PF Flack declared a pecuniary interest in Item 5.1 Investigation into On-Stream Water Storage under the Local Government Act as Cr Flack believes a dam at the confluence of Gravelly Creek and North Creek would result in the flooding of Upper North Arm, therefore, the flooding and loss of her property and properties of her local community. Cr Flack left the meeting for this item.

Councillor A Smyth declared a non-pecuniary significant conflict of interest in Item 9.4 Nambucca Valley Conservation Association vs Nambucca Shire Council & Mr Paul Joseph - DA 2004/136, East West Road, Valla under the Local Government Act as Cr Smyth indicated the item relates to court proceedings involving the Nambucca Valley Conservation Association of which she was a member. Cr Smyth left the meeting for this item.

Councillor PF Flack declared a non-pecuniary significant conflict of interest in Item 9.4 Nambucca Valley Conservation Association vs Nambucca Shire Council & Mr Paul Joseph - DA 2004/136, East West Road, Valla under the Local Government Act because of her having had past member and executive roles in Nambucca Valley Conservation Association and therefore a possible perceived conflict. Cr Flack left the meeting for this item.

CONFIRMATION OF MINUTES - Ordinary Council Meeting 18 March 2010

2035/10 RESOLVED: (Moran/Smyth)

That the minutes of the Ordinary Council Meeting of 18 March 2010 be confirmed subject to the following:

Page 1 Cr Flack declared an interest and left the Chamber for items 5.1 and 8.2.

Page 4 Item 8.1 Note Cr Flack left at 6.09 pm and returned at 6.10 pm

Page 14 Item 13 Cr Smyth and Cr Flack indicated they voted against the Bio Diversity Plan

NOTICE OF MOTION - CR Finlayson – LATE

Cr Flack left the meeting at 5.40 pm and returned at the conclusion of resolution 1 for this item, at 5.57 pm

ITEM 5.1 SF1471 010410 Notice of Motion - Investigation into On-Stream Water Storage

Motion: (Finlayson/Ainsworth)

That this Council undertake further investigation of:

a the geological suitability of constructing an on-stream dam at sites examined by Councillors on Upper Buckrabendinni Creek, the confluence of Gravelly Creek and Nambucca River or such other sites as Council considers appropriate

b the cost of such construction

c the means by which water stored in such dam may be delivered to the borefields at Bowraville and the cost of any such delivery system.

Amendment: (Hoban/Ainsworth)

That this Council receive a report which includes a recommended brief and budget to undertake further investigation of:

b the cost of such construction

c the means by which water stored in such dam may be delivered to the borefields at Bowraville and the cost of any such delivery system.

The amendment was carried and it became the motion and it was:

2036/10 Resolved: (Hoban/Ainsworth)

That this Council receive a report which includes a recommended brief and budget to undertake further investigation of:

b the cost of such construction

c the means by which water stored in such dam may be delivered to the borefields at Bowraville and the cost of any such delivery system

Note: Cr Smyth and Cr Ballangarry requested that their votes be recorded as against this resolution.

Note: Cr Flack returned to the meeting at this time, 5.57 pm

2037/10 Resolved: (Hoban/Finlayson)

That there be a report to the next scheduled Water Supply Steering Committee on the risk of delays to the completion of the pre-construction tender phase of the Bowraville off-river storage. Further, the report consider the potential cost of delays should the pre-construction tender phase extend beyond 31 December 2010.

NOTICE OF MOTION - CR Flack – LATE

ITEM 5.2 SF1471 010410 Notice of Motion - Special Meetings - Setting Dates

Motion: (Flack/Smyth)

1 That when Council resolves to call a meeting or workshop it determines, if possible, the time and date for the meeting or workshop at the time of the resolution.

2 That where a special meeting or workshop is called outside a meeting of Council, Councillors are consulted via phone or email regarding a suitable time and date, to ensure a quorum is available before calling the meeting or workshop.

3 That where a special meeting or workshop is called outside a meeting of Council, Councillors are consulted via phone or email regarding a suitable time and date, to ensure a quorum is available before calling the meeting or workshop.

Amendment: (Hoban/Court)

1 That when Council resolves to call a meeting or workshop it determines, if possible, the time and date for the meeting or workshop at the time of the resolution.

2 That where a special meeting or workshop is called outside a meeting of Council, Councillors are advised via phone or email regarding a time and date, to ensure a quorum is available before calling the meeting or workshop.

3 That where a special meeting or workshop is called outside a meeting of Council, Councillors are advised via phone or email as soon as the staff propose the date for setting times and dates of special meetings.

The amendment was carried and became the motion and it was:

2038/10 Resolved: (Hoban/Court)

1 That when Council resolves to call a meeting or workshop it determines, if possible, the time and date for the meeting or workshop at the time of the resolution.

DELEGATIONS

Resolved: (Ainsworth/Moran)

That the following delegations be heard:

Ms Lisa Harvey on behalf of Nambucca River Tourist Park

Mr Bob Phipps

Mr Michael Major on behalf of Valla Beach Urban & Hall Committee

Mr Peter Veryard on behalf of Valla Beach and Urban Hall Committee

DELEGATIONS continued

Ms Lisa Harvey addressed Council speaking to prepared notes which are on file.

Mr Bob Phipps addressed Council making the following points:

· On his travels enjoyed free parking where ever wished

· Does not need to go to a caravan park to pay their fees

· There were over 40 signed letters delivered to Council who said it would be great to welcome these travellers

· We have all the facilities to be declared RV-friendly

· When new highway is built, why would they want to stop in the Valley

· Showgrounds not being used all year

· A lot of towns have a service club looking after fees from the RVs

· Kempsey and Coffs Harbour are being considered as RV friendly towns

· Willing to assist Council putting a submission to CMCA to be a RV-friendly town, if interested

ITEM 8.9 SF617 010410 Request for use of Macksville Showground by motorhomes and installation of a sewerage dump point

2039/10 RESOLVED: (Moran/Ainsworth)

That Council seek the views of the Macksville Showground Committee of Management to the establishment of limited term camping for “self contained” recreational vehicles at the Macksville Showground and also to the installation of a sewage “dump point” for use by recreational vehicles. Further, that the General Manager asks Kempsey and Coffs Harbour City Councils how they are approaching becoming an RV-friendly town.

DELEGATIONS continued

Mr Michael Major addressed Council speaking to a prepared paper which is on file.

Mr Peter Veryard addressed Council speaking to a prepared paper which is on file.

ITEM 10.2 PRF3 010410 Anderson Park Amenities

2040/10 RESOLVED: (Flack/South)

1 That Council note that $90,000 has been included in the draft 2010/2011 budget for consideration.

2 That the Valla Beach Urban and Hall Committee of Management be advised that Council has included $90,000 in the draft 2010/2011 budget for consideration.

ASKING OF QUESTIONS WITH NOTICE

QWN12/10 - Cr. Michael Moran - DA 2004/136 East West Road Valla (Ref SF970)

Cr Moran enquired if Cr Flack was President of the Nambucca Valley Conservation Association during the time Council was Assessing DA 2004/136, East West Road, Valla?

Cr Flack answered ‘Yes’.

ASKING OF QUESTIONS WITH NOTICE continued

QWN13/10 - Cr. Michael Moran - DA 2004/136 East West road Valla (Ref SF970)

Cr Moran enquired if Cr Flack was involved in any way in the formulation of the Nambucca Valley Conservation Association’s submissions against DA 2004/136?

Cr Flack answered ‘Yes’.

QWN14/10 - Cr. Michael Moran - DA 2004/136 East West Road Valla (Ref SF970)

Cr Moran enquired if Cr Flack was the President of the Nambucca Valley Conservation Association at the time Cr Flack voted on the determination of DA 2004/136?

Cr Flack answered ‘Yes. Councillors who were members of the previous Council will recall that the report regarding DA 2004/136 came to Council at its last meeting in 2008 before the election of a new Council, while Council was officially in “caretaker mode” as it is called by the Department of Local Government.

The report and recommendations had two components. Firstly, the recommendation from staff that Council NOT determine the DA whilst it was in Caretaker Mode, based on the advice from the Director General of the Department of Local Government to all councils to avoid making controversial and significant decisions whilst in Caretaker Mode. Unfortunately, despite this and its own staff’s advice, Council resolved to determine the DA. I do not consider that I had a conflict of interest in this matter, as it related to whether or not to proceed whilst in Caretaker Mode.

The second component of the same report was the DA itself and the recommendation that in the event that Council did resolve to determine the DA, that it be approved. Having the two recommendations in the same report meant that what I should have done, after recovering from the shock of Council resolving to determine the DA whilst in Caretaker Mode, was to vacate the Chambers for the subsequent determination which was moved immediately afterwards the first decision.

The fact that I didn’t was definitely a mistake and one that I recognised afterwards. Had I declared a conflict of interest and not voted, the outcome would have been the same, that is the DA would still have been approved, likewise, had I not been a member of NVCA at the time and had participated in voting, I would have voted against the DA and the outcome still would have remained the same.

Subsequent to this event I made sure that I always declared a conflict of interest on any matters before Council where NVCA was involved or had made a submission, whilst I was still a member. I have also always declared a conflict of interest for any report relating to the legal case regarding DA 2004/136, despite no longer being a member of the NVCA. I do this on the basis of the potential for a perceived conflict of interest. In other words, I have acknowledged my error and have addressed it.’

QWN15/10 - Cr. Michael Moran - DA 2004/136 East West Road Valla (Ref SF970)

Cr Moran enquired if Cr Flack was subsequently involved in any way in the commencement or the process of legal proceedings by Nambucca Valley Conservation Association challenging consent to DA 2004/136?

Cr Flack answered ‘Yes. Following the approval of the DA, the NVCA proceeded to discuss its options with regard to its response to the approval, including legal action. As President at the time, of course I was involved in this discussion. I did however recognise the potential conflict of interest and discussed this with the General Manager and at length with the Department of Local Government, I was advised that it would be inappropriate to hold an executive position in the event of the NVCA taking legal action. I subsequently resigned as president of the NVCA before any legal proceedings commenced against Council. Shortly afterwards under my own initiative, I also resigned as an ordinary member.’

QUESTIONS FOR CLOSED MEETING WHERE DUE NOTICE HAS BEEN RECEIVED

There were no Questions for Closed Meeting where due Notice had been given.

General Manager Report

ITEM 8.1 SF959 010410 Outstanding Actions and Reports

2041/10 RESOLVED: (Finlayson/Moran)

That the list of outstanding actions and reports be noted and received for information by Council.

ITEM 8.2 SF1389 010410 Grant Application Status Report - 25 March 2010

2042/10 RESOLVED: (Finlayson/Ainsworth)

That the list of grant programs and their status to 15 March 2010 be received.

ITEM 8.3 SF128 010410 Liability in Relation to Water Supply - Further Advice from Council's Solicitor's Norton Rose

2043/10 RESOLVED: (Finlayson/Court)

That the additional advice from Council’s solicitor, Norton Rose, in relation to liability for not proceeding with the IWCM be received.

ITEM 8.4 SF1456 010410 Restructure of Works Section

2044/10 RESOLVED: (Court/Finlayson)

That Council adopt the revised Works Section structure.

ITEM 8.5 SF1090 010410 Progress Report - Implementation of the Promoting Better Practice Report Recommendations

2045/10 RESOLVED: (Flack/Finlayson)

The progress report on the implementation of the Promoting Better Practice Report recommendations be received and referred to the Division of Local Government.

ITEM 8.6 SF341 010410 Valla Beach Urban and Hall Committee of Management - Minutes of Annual General Meeting - 17 February 2010

2046/10 RESOLVED: (Moran/Finlayson)

That Council endorse the minutes of the Annual General Meeting of the Valla Beach and Urban Hall Committee of Management which was held on 17 February 2010 and thank the outgoing Committee for their work in the past twelve months.

ITEM 8.7 SF968 010410 Nambucca Valley Netball Association - Minutes of Annual General Meeting - 3 November 2009

2047/10 RESOLVED: (Finlayson/Ainsworth)

That Council endorse the minutes of the Annual General Meeting of the Nambucca Valley Netball Association Committee of Management which was held on 3 November 2009 including the financial statement and thank the outgoing Committee for their work in the past twelve months.

ITEM 8.8 SF332 010410 Scotts Head Tennis Club - Minutes of AGM 17 March 2010 & Financial Statement to 28 February 2010

2048/10 RESOLVED: (Court/Ainsworth)

That Council endorse the Minutes of the Annual General Meeting of the Scotts Head Tennis Club Committee of Management which was held on 17 March 2010 including the financial statement and thank the outgoing Committee for their work in the past twelve months.

Item 8.9 was dealt with under Delegations.

Director Environment and Planning Report

ITEM 9.1 SF1261 010410 Outstanding DA's greater than 12 months, applications where submissions received not determined to 22 March 2010

2049/10 RESOLVED: (Smyth/Ballangarry)

1 That the list of outstanding development applications (at least 12 months old) and applications received, be noted and received for information by Council.

2 That the applications where submissions have been received be noted and received for information by Council.

ITEM 9.2 SF1261 010410 DA's and CDC's Received and Determined under Delegated Authority 23 February-8 March 2010

2050/10 RESOLVED: (Smyth/Finlayson)

That Council note the Development Applications/Complying Development Applications received and determined under delegated authority.

ITEM 9.3 SF785 010410 Crime Prevention Grant Application "Crime Prevention Through Environmental Design" Audits On Public Infrastructure

2051/10 RESOLVED: (Smyth/Ballangarry)

That Council endorse the project details and approve the submission of the grant application for $50,000 to the NSW Attorney General's Crime Prevention Program.

Cr Flack and Cr Smyth left the meeting at 7.15 pm and returned at 7.25 pm at the conclusion of this item .

ITEM 9.4 SF1254 010410 Nambucca Valley Conservation Association vs Nambucca Shire Council & Mr Paul Joseph - DA 2004/136, East West Road, Valla

2052/10 RESOLVED: (Finlayson/Ainsworth)

1 That Council note the outcome of the Class 4 action in the Land and Environment Court by the Nambucca Valley Conservation Association Inc in regard to Development Application 2004/136.

2 That Council note that on advice from its legal advisors competing short minutes were not submitted and no challenge was made to the ‘Short Minutes of Order’ lodged by the Second Respondent (Mr Joseph) that the First Respondent (Council) pay 60% of the applicant’s costs.

3 That Council process DA 2004/136 by advertising and notifying the amended community title rural-residential subdivision and addressing all the relevant matters, including consideration of any new and previous submissions, relevant matters for consideration under Section 79C of the EP&A Act, including Clause 13 of the NLEP 1995, before final determination of the application by Council.

4 That the applicant be advised that before Council can further consider DA 2004/136 an updated supplementary flora and fauna report is required for Council’s consideration. Such report shall address any new information not previously considered that may impact on threatened species, populations or ecological communities, or their habitats. The report should determine the significance of any such impact and if a Species Impact Statement (SIS) is required in accordance with the Threatened Species Conservation Act 1995.

ITEM 9.5 SF285 010410 Report on Community Services Committee Meetings - 10 November 2009 & 9 February 2010

Motion: (Flack/Moran)

1 That Council concur with the Community Services Committee’s request to undertake a snapshot survey of the community services sector, to establish the economic contribution to the Shire, noting that it would be at no cost to Council as the members themselves would be collecting and bringing forward the information.

2 That the Manager Community and Cultural Services provide a snapshot of Community Services at Council as a part of the Community Services Committee survey.

Amendment: (Moran/Ainsworth)

2 That the Manager Community and Cultural Services provide a snapshot of Community Services at Council as a part of the Community Services Committee survey. Further, that the snapshot be endorsed by Council prior to it being referred to the Community Services Committee

The amendment was carried and it became the motion and it was:

Resolved: (Moran/Ainsworth)

Director Engineering Services Report

ITEM 10.1 T007/2010 010410 Tender T007/2010 Additions To Rural Fire Service Lower North Coast Control Centre

2053/10 RESOLVED: (Finlayson/Moran)

That Council accept the tender for the construction of additions to the Rural Fire Service Lower North Coast Control Centre at Kelly Close, Macksville of Costa Builders Pty Ltd for the tendered amount.

Item 10.2 was dealt with under Delegations.

ITEM 10.3 SF593 010410 Stormwater - Damage to System

2054/10 RESOLVED: (Flack/South)

1 That Council defer the stormwater projects at Princess Street, Macksville and Hibiscus Drive, Valla Beach valued at $95,000.

2 That the projects of Scotts Head Reserve, Adam Street, Bowraville, Jones Street, Valla Beach and Mumbler Street, Nambucca Heads be included in the budget at a value of $93,000.

ITEM 10.4 SF878 010410 Mid North Weight of Loads Group - 1 March 2010

2055/10 RESOLVED: (Flack/Finlayson)

1 That Council note the minutes of the Mid North Weight of Loads Group on 1 March 2010.

2 That Council confirm its membership of the Mid North Weight of Loads Group for a further twelve months ending the 30 June 2011 with membership renewal to be reviewable again prior to that date and enter into Agreements with Gloucester Shire Council to provide administration for the Group and individual Inspectors to authorise them to operate in the Local Government area of Nambucca Shire Council and that Council authorise the signature of these Agreements and the affixing of the seal as required.

General Purpose Committee REPORT – 31 March 2010

ITEM 11.1 SF382 010410 Scotts Head Master Plan (Item 8.1 in the General Purpose Committee)

2056/10 RESOLVED: (Hoban/Court)

That Council supports in principle the model put forward by Integrated Site Design being the exhibited plan and that prior to further negotiations Council receive a report on the implications of not relocating the semi permanents to the Adin Street oval.

2057/10 Resolved: (Hoban/Moran)

That no agreement be signed until such time as the agreement has been approved by Council.

Council meeting adjourned at 8.12 pm.

Council meeting resumed at 8.39 pm.

General Purpose Committee REPORT – 1 april 2010

ITEM 12.1 SF1446 010410 Draft Infrastructure Management Plan 2010-2011 to 2014-2015 (Item 8.1 in the General Purpose Committee)

2058/10 RESOLVED: (Court/Flack)

That Council place the Draft Infrastructure Management Plan 2010-2011 to 2014-2015 on public exhibition for a minimum of 28 days.

ITEM 8.2 SF1446 010410 Draft Budget for 2010-2011

2059/10 Resolved: (Hoban/Ainsworth)

1 Council note the changes to the Draft Budget for 2010/2011 made by MANEX.

2 Council place all draft Management Plan documents as amended on public exhibition for at least 28 days and that a public meeting to explain the documents and answer questions be held at the Council Chambers during the first week of the public exhibition.

3 That the part-time position for the Counter be deleted and reviewed in the September Budget Review and the amount be set aside in the 2010/2011 Budget as a contingency for the risks identified at the Saleyards.

4 That, while the Draft Budget is on public exhibition, a report be brought to Council regarding the Saleyards, including revenue, expenditure and its future generally, based on the safety workshop recommendations held on 31 March 2010.

5 That the General Manager and Manager Community and Cultural Serves meet with their counterparts at Bellingen and Clarence Valley Councils, while the management plan is on exhibition, and put Council’s position regarding the 10% contribution and report back to Council.

2060/10 Resolved: (Hoban/Flack)

6 That Council write to the Minister for Local Government expressing our disappointment that rate pegging has been set according to inflation when the Minister would be aware of the infrastructure backlogs facing all NSW councils and that Council’s real costs including wages are far in excess of inflation and that Council also express its disappointment with the timeframe. Further, that Council request other NSW Councils to similarly express their thoughts to the Minister.

COUNCIL IN CLOSED MEETING (CLOSED TO THE PUBLIC)

2061/10 RESOLVED: (Ainsworth/Court)

1 That Council consider any written representations from the public as to why the Meeting should not be Closed to the public.

2 That Council move into Closed Meeting to discuss the matters for the reason(s) listed above.

Reason reports are in Closed Meeting:

Director Environment and Planning Report

For Confidential Business Paper in Closed Meeting

ITEM 11.1 LF2365 010410 Mirage Property Group Legal Expenses

It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (d) of the Local Government Act, 1993, on the grounds that the report contains commercial information of a confidential nature that would, if disclosed (i) prejudice the commercial position of the person who supplied it; or (ii) confer a commercial advantage on a competitor of the Council; or (iii) reveal a trade secret.

CLOSED MEETING

The Ordinary Council Meeting's Meeting IN CLOSED MEETING commenced at 8.40 pm.

RESUME IN OPEN MEETING

2062/10 RESOLVED: (Ainsworth/Court)

That Ordinary Council Meeting resume in Open Meeting. The Ordinary Council Meeting resumed IN OPEN MEETING at 8.45 pm.

FROM COUNCIL IN CLOSED MEETING

Director Environment and Planning Report

For Confidential Business Paper in Closed Meeting

ITEM 11.1 LF2365 010410 Mirage Property Group Legal Expenses

2063/10 RESOLVED: (Finlayson/Ainsworth)

1 That Council note the unsecured proposal put forward by Mr Johnson on behalf of Mirage Property Group Pty Ltd (in liquidation) dated 1 March 2010.

2 That Council note the letter sent to Mr Johnson by Norton Rose on behalf of Council dated 4 March 2010 and Mr Johnson's email response dated 9 March 2010.

3 That Council advise Mr Johnson that it will not consider alternate proposals to pay the outstanding debt owed by Mirage Property Group Pty ltd (in liquidation) unless acceptable security, timeframes and guarantees can be provided.

CLOSURE

There being no further business the Mayor then closed the meeting the time being 8.46 pm.

Confirmed and signed by the Mayor on 15 April 2010.

CR RHONDA HOBAN

MAYOR

(CHAIRPERSON)