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Ordinary Council Meeting - 14 November 2012 Acceptance of Delegations of Authority for the Making of Local Environmental Plans |
Ordinary Council Meeting - 14 November 2012
LATE AGENDA Page
L Notices of Motion
L.1 Notice of Motion - Request for Leave - Cr Bob Morrison - 29 November 2012 (SF1788)............ 2
L General Manager Report
L.1 Acceptance of Delegations of Authority for the Making of Local Environmental Plans............... 3
L Assistant General Manager Corporate and Community Services Report
L.1 DA2012/111 Respone to enquiry as to whether the Federal Telecommunications Act will override the State Planning legislation Council operates under......................................................................... 7
Notice of Motion
ITEM L.1 SF1714 141112 Notice of Motion - Request for Leave - Cr Bob Morrison - 29 November 2012 (SF1788)
AUTHOR/ENQUIRIES: Bob Morrison, Councillor
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Summary:
Councillor Bob Morrison apologises for not being able to attend the Water Supply Steering Committee meeting on 7 November 2012 and seeks leave of absence on 29 November 2012.
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That Cr Bob Morrison’s apology be accepted for not being able to attend the Water Supply Steering Committee meeting on 7 November 2012 and that he be granted leave of absence in accordance with Section 234(d) of the Local Government Act for the Council meeting on 29 November 2012.
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OPTIONS:
· That leave be granted.
· That leave not be granted.
General Manager's Report
ITEM L.1 SF669 141112 Acceptance of Delegations of Authority for the Making of Local Environmental Plans
AUTHOR/ENQUIRIES: Michael Coulter, General Manager
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Summary:
The report is brief. A summary is not required.
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That the Minister, the Hon Brad Hazzard MP be advised that;
1. Nambucca Shire Council accepts the Minister’s delegations under Section 59 of the Environmental Planning and Assessment Act;
2. The elected Council will exercise the delegations; and
3. Council’s Strategic Planner, Mr Grant Nelson and in his absence, Council’s General Manager, Mr Michael Coulter will undertake the administrative functions associated with the exercise of the delegations.
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OPTIONS:
Council could elect not to accept the delegations but this would be inconsistent with Council’s long standing demands for the return of planning powers to Councils. It will also likely lengthen the time taken to prepare non controversial, local environmental plans.
DISCUSSION:
The Minister for Planning and Infrastructure, the Hon Brad Hazzard MP has advised of the Government’s intention to delegate to councils all the Minister’s functions under Section 59 of the Environmental Planning and Assessment Act, 1979 for the making of Local Environmental Plans. This proposal has come as a consequence of the Government’s announcement to improve the local plan making process by returning local planning decisions to local councils and their communities, and by making the process more accountable.
The delegations of authority will operate in respect of draft LEPs for local matters where Council receives an authorisation following the Gateway determination.
To be able to exercise these delegations, the Council must write to the department advising that they are accepted. The Department also requests that Council nominate the officers or employee of council who will be granted the proposed delegation. The name and position of the employee is required. A copy of the Minister’s letter is attached.
The authority which is proposed to be delegated is listed in the following section.
59 Making of local environmental plan by Minister
(1) The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.
(2) The Minister may, following completion of community consultation:
(a) make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or
(b) decide not to make the proposed local environmental plan.
(3) The Minister may defer the inclusion of a matter in a proposed local environmental plan.
(4) If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is reconsidered by the Minister.
The letter indicates some confusion in relation to the exercise of delegated authority. Notwithstanding that the letter requests the name and position of the employee who will be granted the proposed delegation, the Council does not have to delegate authority to an officer. Indeed for something as important as the making of a Local Environmental Plan, it is suggested that the function not be delegated. The process of delegating to an individual is also inconsistent with the expressed intent of returning local planning decisions to local councils and their communities.
It is proposed the Department be advised that;
1. Council accepts the Minister’s delegations under Section 59 of the Environmental Planning and Assessment Act;
2. That the elected Council will exercise the delegations; and
3. Council’s Strategic Planner, Mr Grant Nelson and in his absence, Council’s General Manager, Mr Michael Coulter will undertake the administrative functions associated with the exercise of the delegations.
CONSULTATION:
There has been consultation with the Assistant General Manager, Corporate and Community Services and with Council’s Strategic Planner.
SUSTAINABILITY ASSESSMENT:
Environment
There are no implications for the environment. The report concerns an administrative process.
Social
There are no social implications.
Economic
There may be some savings in the time required to process a local environmental plan. This should have positive economic implications.
Risk
There are no significant risks. Checking of draft local environmental plans by the Parliamentary Counsel to ensure their legal accuracy will continue.
FINANCIAL IMPLICATIONS:
Direct and indirect impact on current and future budgets
There is no budgetary impact.
Source of fund and any variance to working funds
There is no impact on working funds.
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1View |
28726/2012 - Letter from Minister |
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Ordinary Council Meeting - 14 November 2012 Acceptance of Delegations of Authority for the Making of Local Environmental Plans |
Assistant General Manager Corporate and Community Services Report
ITEM L.1 DA2012/111 141112 DA2012/111 Respone to enquiry as to whether the Federal Telecommunications Act will override the State Planning legislation Council operates under.
AUTHOR/ENQUIRIES: Selina McNally, Senior Town Planner
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Summary:
During Council’s Meeting of 10 October 2012, Council resolved to request that Council staff write to the applicant for DA2012/111 and enquire as to whether there is Federal legislation that exists for Telecommunications Facilities which will override the state and local planning legislation and as such would override any determination made by Council.
The applicant has responded in writing and confirmed that there is no alternate legislation that they can utilise to override Council’s determination. The correspondence is attached at Attachment 1.
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That Council note the applicant’s response advising that there is no other alternate legislation available to them for this application for the telecommunication facility.
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OPTIONS:
· Option 2
Council could contact the State or Federal Government for further clarification.
DISCUSSION:
A development application was lodged with Council on 10 September 2012 under reference DA2012/111 and submissions have been received. The application was subsequently listed on the Outstanding Development Applications list to inform Council of the submissions and at the Meeting on 10 October there was some discussion in-between Councillors with regard to the potential of Federal Legislation existing which could override our own State and Local legislation, and as such, even if Council resolved to refuse the development applications, the tower could still go ahead under the other legislation.
On Council’s request, the applicant was asked for clarification on this issue and Council’s letter is also attached at Attachment 2. Council have now received the applicants response and they have confirmed that if any alternate Federal or other legislation were available for them, they would have utilised it for the erection of the tower, and not proceeded to lodge this development application. They do outline the procedure for low impact telecommunication facilities which includes referring to the Infrastructure SEPP and explained that this tower does not qualify as ‘low impact’.
This means if a refusal notice was issued, the applicants choice would be to either find an alternate location for the tower, or appeal the decision to the Land and Environment Court which is their right to do so under Section 97 of the Environmental and Planning Assessment Act, which is the same procedure any application would need to go through.
The applicants response letter also details information in support of their development application and for this particular location proposed for this tower in Macksville. However, this report is not to consider the development application but just for information on the legislation enquiry.
At this time the development application has not been “called in” by Council and could be determined by Council’s Officers’ under delegated authority.
CONSULTATION:
· External
Aurecon
Aurecon as the applicant have responded to Council’s enquiry and their response is attached at Attachment 1. The correspondence confirms this development application is required, that Council have the delegations to approve or refuse it, as they would determine any other development application and if a refusal notice were to be issued, the applicant would have to follow the usual appeal procedure.
SUSTAINABILITY ASSESSMENT:
Environment
No issues at this time, this report is for clarification of a point only.
Social
No issues at this time, this report is for clarification of a point only.
Economic
No issues at this time, this report is for clarification of a point only.
Risk
The potential risk for Federal Legislation to override our own State and Local Legislation has been removed.
FINANCIAL IMPLICATIONS:
Direct and indirect impact on current and future budgets
Not applicable.
Source of fund and any variance to working funds
Not applicable.
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1View |
29366/2012 - Aurecon Response |
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2View |
26676/2012 - Councils Request |
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Ordinary Council Meeting - 14 November 2012 DA2012/111 Respone to enquiry as to whether the Federal Telecommunications Act will override the State Planning legislation Council operates under. |
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Ordinary Council Meeting - 14 November 2012 DA2012/111 Respone to enquiry as to whether the Federal Telecommunications Act will override the State Planning legislation Council operates under. |
Enquiries to: Ms McNally
Phone: 6568 0246
Our Ref: DA 2012/111
17 October 2012
FAO: Courtney Lansdowne
Aurecon Group
PO Box 538
NEUTRAL BAY NSW 2089
Dear Ms Lansdown
DEVELOPMENT APPLICATION 2012/111
TELECOMMUNICATIONS FACILITY
LOT: 1 DP: 805735 36 MCKAY STREET MACKSVILLE
I refer to the above mentioned development application lodged with Council on 10 September 2012 and advise your application is currently being processed.
The application was recently noted at a Council meeting, as it appeared on the ‘ recent development applications received by Council list’ and many members of the community have also been in touch with their elected members to ask questions about the development, and particularly in regards to the decision making process.
This has subsequently caused Council to move a resolution that council staff will write to you for some clarification on the development application process. Some members of the community are of the view that the Federal/Commonwealth Telecommunication Act and associated Code of Conduct (and any other relevant legislation) will override the State and Local planning legislation in which Council operates under; such as the Environmental Planning and Assessment Act.
I am writing to you to request that you do indeed provide the required confirmation and specific clarification on this matter, so that our elected members can inform interested members of the community of Council’s role in the process. The ultimate question that needs clarification is - if Council’s resolution is to refuse the development application, would you as the applicant have to appeal this decision (as any other applicant for any other type of development application would have the option to do); or is there Federal/Commonwealth Legislation which could over-ride Council’s determination so that you could proceed with the development, without going through an appeal process?
Should you require any further information, please contact me directly on the details above or the Applications and Compliance Unit on 6568 0250.
Yours faithfully
Selina McNally
SENIOR TOWN PLANNER