12 January 2017
Shire
of Esperance
Ordinary
Council
NOTICE
OF MEETING AND AGENDA
An Agenda Briefing Session of the Shire of Esperance will
be held at Council Chambers on 17 January 2017 commencing at 1pm to brief
Council on the matters set out in the attached agenda.
An Ordinary Council meeting of the Shire of Esperance
will be held at Council Chambers on 24 January 2017 commencing at 4pm to
consider the matters set out in the attached agenda.
W M (Matthew) Scott
Chief Executive Officer
DISCLAIMER
No responsibility whatsoever is implied or accepted by the
Shire of Esperance for any act, omission or statement or intimation occurring
during Council or Committee meetings. The Shire of Esperance disclaims any
liability for any loss whatsoever and howsoever caused arising out of reliance
by any person or legal entity on any such act, omission or statement or
intimation occurring during Council or Committee meetings. Any person or legal
entity who acts or fails to act in reliance upon any statement, act or omission
made in a Council or Committee meeting does so at that person’s or legal
entity’s own risk.
In particular and without derogating in any way from the
broad disclaimer above, in any discussion regarding any planning application or
application for a licence, any statement or intimation of approval made by a
member or officer of the Shire of Esperance during the course of any meeting is
not intended to be and is not to be taken as notice of approval from the Shire
of Esperance. The Shire of Esperance warns that anyone who has any application
lodged with the Shire of Esperance must obtain and should only rely on written
confirmation of the outcome of the application, and any conditions attaching to
the decision made by the Shire of Esperance in respect of the application.
ETHICAL DECISION
MAKING AND CONFLICTS OF INTEREST
Council is committed to a code of conduct and all decisions
are based on an honest assessment of the issue, ethical decision-making and
personal integrity. Councillors and staff adhere to the statutory requirements
to declare financial, proximity and impartiality interests and once declared
follow the legislation as required.
ATTACHMENTS
Please be advised that in order
to save printing and paper costs, all attachments referenced in this paper are
available in the original Agenda document for this meeting.
Disclosure of Financial, Proximity
or Impartiality Interests
Local
Government Act 1995 – Section 5.65, 5.70 and 5.71 and Local
Government (Administration) Regulation 34C
Agenda Briefing ¨
Ordinary Council Meeting ¨
Both Meetings ¨
Name of Person Declaring the Interest:
Position:
Date
of Meeting:
This form is provided to
enable members and officers to disclose an Interest in the matter in accordance
with the regulations of Section 5.65, 5.70 and 5.71 of the Local Government Act
and Local Government (Administration) Regulation 34C.
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Interest
Disclosed
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No:
 Subject:
Nature of Interest:
Type of
Interest:
Financial
Proximity
Impartiality
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Interest
Disclosed
Item
No:
Subject:
Nature of Interest:
Type of
Interest:
Financial
Proximity
Impartiality
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Interest
Disclosed
Item
No:
Subject:
Nature of Interest:
Type of
Interest:
Financial
Proximity
Impartiality
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Signature: Date:
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Office Use Only:
 Entered
into interest Register:
Officer
Date
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Declaration of
Interest (Notes for Your Guidance)
A member who has a Financial Interest in any
matter to be discussed at a Council or Committee Meeting, which will be
attended by the member, must disclose the nature of the interest:
a) In a written notice given to the Chief Executive
Officers before the Meeting or;
b) At the Meeting, immediately before the matter is
discussed.
A member, who makes a disclosure in respect to an
interest, must not:
c) Preside at the part of the Meeting, relation to the
matter or;
d) Participate in, or be present during any discussion
or decision-making procedure relative to the matter, unless to the extent that
the disclosing member is allowed to do so under Section 5.68 or Section 5.69 of
the Local Government Act 1995.
Notes on Financial Interest (For your Guidance)
The following notes are a basic guide for Councillors
when they are considering whether they have a Financial Interest in a matter.
1. A Financial Interest requiring disclosure occurs when
a Council decision might advantageously or detrimentally affect the Councillor
or a person closely associated with the Councillor and is capable of being
measured in money terms. There are expectations in the Local Government
Act 1995 but they should not be relied on
without advice, unless the situation is very clear.
2. If a Councillor is a member of an Association (which
is a Body Corporate) with not less than 10 members i.e sporting, social,
religious ect, and the Councillor is not a holder of office of profit or a
guarantor, and has not leased land to or from the club, i.e, if the Councillor
is an ordinary member of the Association, the Councillor has a common and not a
financial interest in any matter to that Association.
3. If an interest is shared in common with a significant
number of electors and ratepayers, then the obligation to disclose that
interest does not arise. Each case need to be considered.
4. If in doubt declare.
5. As stated in (b) above, if written notice disclosing
the interest has not been given to the Chief Executive Officer before the
meeting, then it must be given when the
matter arises in the Agenda, and immediately before the matter is discussed.
6. Ordinarily the disclosing Councillor must leave the
meeting room before discussion commences. The only exceptions are:
6.1
Where the Councillor discloses
the extent of the interest, and Council carries a motion under
s.5.68(1)(b)(ii) of the Local Government Act; or
6.2
Where the Minister allows the
Councillor to participate under s.5.69(3) of the Local Government Act, with or
without conditions.
Interests Affecting Proximity
1) For the purposes of this subdivision, a person has a
proximity interest in a matter if the matter concerns;
a)
a proposed change to a planning
scheme affecting land that adjoins the person’s land;
b)
a proposed change to the zoning
or use of land that adjoins the person’s land; or
c)
a proposed development (as
defined in section 5.63(5)) of land that adjoins the person’s land.
2) In this section, land (the proposal land) adjoins a
person’s land if;
a)
The proposal land, not being a
thoroughfare, has a common boundary with the person’s land;
b)
The proposal land, or any part of
it, is directly across a thoroughfare from, the person’s land; or
c)
The proposal land is that part of
a thoroughfare that has a common boundary with the person’s land.
3) In this section a reference to a person’s land
is a reference to any land owned by the person or in which the person has any
estate or interest.
Interests Affecting Impartiality
Definition: An interest that would give rise to a reasonable
belief that the impartiality of the person having the interest would be
adversely affected, but does not include an interest as referred to in Section
5.60 of the ‘Act’.
A member who has an Interest Affecting Impartiality in any matter to
be discussed at a Council or Committee Meeting, which will be attended by the
member, must disclose the nature of the interest;
a) In a written notice given to the Chief Executive
Officers before the Meeting or;
b) At the Meeting, immediately before the matter is
discussed.
Impact of an Impartiality Closure
There are very different outcomes resulting from
disclosing an interest affecting impartiality compared to that of a financial
interest. With the declaration of a financial interest, an elected member
leaves the room and does not vote.
With the declaration of this new type of interest, the
elected member stays in the room, participates in the debate and votes. In
effect then, following disclosure of an interest affecting impartiality, the
member’s involvement in the Meeting continues as if no interest existed.
SHIRE OF ESPERANCE
AGENDA
Ordinary
Council Meeting
TO BE HELD IN Council Chambers ON 24 January 2017
COMMENCING
AT 4pm
1. OFFICIAL OPENING
2. ATTENDANCE
Members
Cr V Brown President Rural
Ward
Cr N Bowman Deputy
President Rural Ward
Cr J Parsons Town
Ward
Cr P Griffiths Town
Ward
Cr K Hall Town
Ward
Cr L McIntyre Town
Ward
Cr R Padgurskis Town
Ward
Cr B Stewart, JP Town
Ward
Cr B Parker Rural
Ward
Shire
Officers
Mr W
M (Matthew) Scott Chief
Executive Officer
Mr S
Burge Director
Corporate Resources
Mr
M Walker Director
Asset Management
Mr T
Sargent Director
External Services
Mr
R Hindley Manager
Strategic Planning & Land
Projects
Miss
S Fitzgerald Administration
Officer
Members
of the Public & Press
3. APOLOGIES & NOTIFICATION OF
GRANTED LEAVE OF ABSENCE
4. APPLICATIONS FOR LEAVE OF ABSENCE
5. ANNOUNCEMENTS BY THE PERSON PRESIDING
WITHOUT DISCUSSION
6. DECLARATION OF MEMBERS INTERESTS
6.1 Declarations
of Financial Interests – Local Government Act Section 5.60a
6.2 Declarations
of Proximity Interests – Local Government Act Section 5.60b
6.3 Declarations
of Impartiality Interests – Admin Regulations Section 34c
7. PUBLIC QUESTION TIME
8. PUBLIC ADDRESSES / DEPUTATIONS
9. Petitions
10. CONFIRMATION OF MINUTES
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That
the Minutes of the Ordinary Council Meeting of the 20 December 2016 be
confirmed as a true and correct record.
Voting Requirement Simple Majority
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11. DELEGATES’ REPORTS WITHOUT
DISCUSSION
12. MATTERS REQUIRING A DETERMINATION OF
COUNCIL
12.1 External Services
Item: 12.1.1
Adoption
of Local Planning Scheme No. 24
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Author/s
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Richard Hindley
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Manager Strategic Planning & Land Projects
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Authorisor/s
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Terry Sargent
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Director External Services
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File Ref: D16/28854
Applicant
Internal
Location/Address
Shire of Esperance
Executive Summary
For Council to consider supporting draft Local
Planning Scheme No. 24 for approval subject to modifications as a result of the
public exhibition that was undertaken as well as the internal assessment of the
Scheme during the same period.
Recommendation in Brief
That Council:
1. In accordance
with Regulation 25(3)(b) of the Planning and Development (Local Planning
Schemes) Regulations 2015 support the draft Scheme with proposed
modifications to address issues raised in the submissions; and
2. Further
inform the Western Australian Planning Commission that as a result of the local
government’s consideration of the draft Scheme under Regulation 25 of the
Planning and Development (Local Planning Schemes) Regulations 2015, that
further modifications are required in addition to those raised in the
submissions:
Background
Council resolved (O0416-048) at its Ordinary Meeting
of Council of the 26 April 2016 to advertise Local Planning Scheme No. 24 as
follows:
That Council
1. Advertise
the draft Local Planning Scheme No. 24 without modification pursuant to
Regulation 21(1) of the Planning and Development (Local Planning Schemes)
Regulations 2015.
2. Refer
the draft Local Planning Scheme No. 24 to the EPA under Section 81 of the
Planning and Development Act 2005.
3. Submit
two (2) copies of the draft local planning scheme documents to the Western
Australian Planning Commission for its examination under section 21(4) of the
Planning and Development (Local Planning Schemes) Regulations 2015.
The Scheme was forwarded to the EPA and the Western
Australian Planning Commission and consent to advertise the Scheme was received
on 6 September 2016.
Advertising commenced on the 23 September 2016 and
closed on the 23 December 2016 with a total of 32 submissions (Attachment B)
being received.
Officer’s Comment
The Planning and Development (Local Planning
Schemes) Regulations 2015 significantly modified numerous sections and
provisions of Local Planning Scheme No. 23 with a new set of uniform state wide
‘deemed provisions’ being applicable without being incorporated
into the Scheme. These regulations also created a new template for Schemes
which is significantly different from that used in Local Planning Scheme No.
23.
The
purposes of the Scheme are to:
(a) set out the local government’s
planning aims and
intentions
for
the Scheme area; and
(b) set aside
land as local reserves for public purposes; and
(c) zone
land within the Scheme area for the purposes defined in this Scheme; and
(d) control
and guide development including processes for the preparation of structure
plans, activity centre plans and local development plans; and
(e) set
out procedures for the assessment and determination of development
applications; and
(f) set
out procedures for contributions to be made for the costs of providing
infrastructure in connection with development through development contribution
plans; and
(g) make
provision for the administration and enforcement of this Scheme; and
(h) address
other matters referred to in Schedule 7 of the Act.
To
meet the purposes of the Scheme the aims
of the Scheme are
to:
(a) ensure there is
a sufficient and
sustainable supply of serviced and suitable land for housing, commercial
activities, community facilities, recreation, and open space;
(b) support
such expansion as is consistent with the provision and improvement of
infrastructure, services and facilities;
(c) provide
for a range of accommodation choices that meets the needs and aspirations of
the community;
(d) provide
for convenient, attractive and viable commercial areas and tourist facilities
to serve the needs of the residents and visitors;
(e) encourage
the development of businesses that will strengthen the economic base of the
central business district;
(f) ensure
the use and development of land does not result in significant adverse impacts
on the physical and social environment;
(g) promote
the sustainable use of land for agriculture, forestry and aquaculture whilst
accommodating other compatible rural activities;
(h) protect
the agricultural areas from inappropriate development and intrusion by urban
and semi-rural uses;
(i) protect
the amenity and enhance the quality of urban, rural and coastal environments;
(j) protect
and enhance the environment and natural resources, including waterways and
wetlands, of the local government district;
(k) protect
remnant vegetation;
(l) protect
local public drinking water supply areas from inappropriate development;
(m) enhance
the public health of the community; and
(n) protect
objects and places of outstanding natural, historic, architectural, scientific
and
cultural significance.
The Scheme was referred to the EPA and the WAPC before
commencing advertising on the 23 September 2016. The advertised version of
Local Planning Scheme No. 24 is Attachment C to this item (under separate
cover).
Consultation
Advertising commenced on the 23 September 2016 and
Closed on the 23 December 2016. The Scheme was advertised in the following
ways:
Public Notice in the Esperance
Express
Public Notice on Shire notice boards
Copies on display as Shire
Administration Building
Copies on display at Library
Copy on display at Department of
Planning
Copy on Shire Website
Notification on Shire Facebook Page
Referral to Government Agencies
At the closure of advertising 32 submissions were
received.
The submissions ranged from specific comment on Scheme
provisions to requests to accommodate specific land uses on certain sites. The
issues raised throughout the submission period are summarised below with detailed responses shown
in the Schedule of Submissions (Attachment A).It should be noted where
submissions were received that contained no comment or where they required was
no modification they are only listed in the Schedule of Submissions.
Lots 184 – 187 Burton Road,
Castletown
A request was made to amend the zoning from the
commercial zoning be amended to ‘Residential’ R40. Given the lots
proximity to the existing local centre in Castletown is considered appropriate to support this
request.
Lot 24 Hills Road, Myrup
A request was made to move the lot boundary between
Lot 24 Hills Road and Lot 103 Lake Road, Myrup to facilitate the development of
a 2 hectare Lot on corner of Hills Road and Cudgee Close. The resultant
boundary adjustment will not result in any additional lots. It is considered
appropriate to support this request.
Reserves 31359, 36365 and 41248
Horizon Power has commenced planning for future power
generation capability and have requested that Reserves 31359, 36365 and 41248
have the Infrastructure Services reserve applied so that they can be considered
for this use. Given the location of these reserves it is considered appropriate
to reflect this on the Scheme Map.
Lot 307 Norseman Road, Chadwick
Esperance Tjaltjraak Services Pty Ltd has requested
that Lot 307 Norseman Road, Chadwick which is currently shown zoned
‘Public Open Space’ be rezoned to ‘Cultural and Natural
Resource Zone’. This area is of meaningful cultural significance to the
Esperance Nyungar people. The water hole at this site was regularly used as a
campground for Esperance Nyungar people, especially during the early days of
Esperance’s development, when Aboriginal people were not allowed in the
town site after dark. It is recommended that this modification be supported.
Lot 408 Yallambee Road, Myrup
It has been request that request that a
‘Shop’ be added as a land use to Lot 408 Yallambee Road, Myrup with
a maximum area of 36m2. It is recommended that this amendment be
made as it reflects the current land use on the site.
Lot 432 Freeman Street, Lot 500
George Street, Lot 525 Thompson Street and Lots 97 and 300 Connolly Street,
Sinclair
It was requested that, given the close proximity of
Lot 432 Freeman Street, Sinclair to Esperance Senior High School and the
established area of Sinclair that a more appropriate zoning would be
‘Rural Residential’. In reviewing this submission it was determined
that it was appropriate for a number of lots to be rezoned to ‘Rural
Residential’. Given the Priority 2 Ground Water Catchment that applies to
the land the minimum lot size is 2ha that will only provide for limited
intensification over these lots. It is recommended that this modification be
supported.
Lot 808 Corry Street, Esperance
It has been requested that a Medical Centre be added
as land use to Lot 808 Corry Street, Esperance. This will allow the current use
of the site to be accommodated under the provisions of Local Planning Scheme
No. 24. It is proposed to limit the number of health practitioners on the site
to no more than 3. It is recommended that this modification be supported.
Lot 1 Fisheries Road, Myrup
It has been request that request that a
‘Shop’ be added as a land use to Lot 1 Fisheries Road, Myrup with a
maximum area of 45m2. It is recommended that this amendment be made
as it reflects the current land use on the site.
Lots 652 and 622 Sims Street,
Chadwick
Lots 652 and 622 Sims Street have been offered to
Esperance Tjaltjraak Services (ETS) as vested reserves for the purposes of
Commercial, Residential, Cultural and Community Purposes with power to lease.
Road access to Lots 622 and 652 is unlikely to occur in the foreseeable future,
the use of these lots as part of contiguous industrial activity with properties
located to the North, East or North West would appear to be the most
appropriate outcome. It is recommended that these lots be zoned ‘General
Industry’ consistent with the adjoining lot.
Lot 303 Iona Street, Nulsen
Lot 303 Iona Street has been offered to ETS in
accordance with the Indigenous Land Use Agreement as a freehold property, free
of encumbrances. It is recognised that the current cadastre of Lot 303 (and Lot
304) Iona Street was clearly influenced by the Shire of Esperance’s
desire to excise portion of the previous single lot (now comprising Lots 303
and 304 Iona Street) for the purposes of a proposed new road reserve. Request
that the whole of Lot 303 is updated to ‘Rural Residential’. No
change is required in response to this submission as Lot 303 is completely
zoned ‘Rural Residential’. Lot 304 has a reserve of ‘Public
Open Space’ and ‘Local Distributor Road’. It is proposed to
retain the zoning on Lot 304 as the portion of this lot reserved ‘Local
Distributor Road’ is part of the future road network.
Lot 52 Kiwi Close and Lot 59
Goldfields Road, Castletown
A request was made to change the zoning of Lot 52 Kiwi
Close and Lot 59 Goldfields Road, Castletown to ‘Residential’ R20
in line with the residential lots to the south west along Goldfields Road. Lot
52 Kiwi Close and Lot 59 Goldfields Road, Castletown are proposed to be zoned
‘Rural Residential’ under the Scheme. The residential zoning that
is applied to the site under Local Planning Scheme No. 23 was a result of the
abolition of the Special Residential zone that was applied under former Town
Planning Scheme No. 22. If the proposal was supported a density bonus due to
the lots size of R30 is applicable which would be incompatible with the
surrounding development.
Lot 290 Mills Place, West Beach
A request was made to add ‘Holiday House’
and ‘Holiday Accommodation’ as 'D' uses to Additional Use A11 (Lot
290 Mills Place, West Beach). Lot 290 is currently zoned ‘Mixed
Use’ with an additional use of ‘Single House’. This lot is
adjoined by residentially zoned lots and the proposed uses are not inconsistent
with the surrounding development. To ensure that the development on the site
bears some relationship to the surrounding development it is proposed to limit
the density of ‘Holiday Accommodation’ to R20.
Lot 3 McLean Road, Chadwick
Two dwellings have been built on the lot. Not possible
to subdivide which has created an untenable situation. Whilst it is recognised that procedural errors in the past
have not assisted the situation on Lot 3 McLean Road the Scheme is not the
appropriate mechanism to resolve the issue. The draft Local Planning Strategy
will provide an avenue to enable subdivision to occur.
Lot 11 Coolgardie – Esperance
Highway, Myrup
Over recent years the owner has had enquiries over Lot
11 as it is currently 80Ha. Most enquiries have wanted the smaller lots to
operate a combined home and business. The Owner believes that 4 smaller lots
could be created and then offered to the market an affordable option, similar
to what is zoned along Old Shark Lake Road (RS2 SCA 3B). Lot 11
Coolgardie-Esperance Highway is located within SCA3A. Within SCA3A there is a
general presumption against the construction of single houses and other
sensitive land uses. This request is not supported as it would be contrary to
SCA3A.
Lot 422 Pink Lake Road, Nulsen
A request was made to rezone Lot 422 Pink Lake Road
from Commercial to Residential. The owner believes the change of zoning will
make it easier to sell or redevelop the Block. The land was purchased in the
early 90’s to accommodate a Business. The lot was used for extra parking
for staff vehicles and loading refrigerated trucks. After 21 years operation
the owner sold the Business in 2010 and no longer has use for a Commercial
Block. A proposed density of R20 is consistent with the prevailing density of
the area.
Lot 1 Dempster Street, Esperance
A request was made that a R40 density coding be
applied to Lot 1 Dempster Street. Lot 1 Dempster Street is a Permanent Entry on
the Heritage Council of Western Australia Register of Heritage Places (Site
822). An extract from the register entry states ‘Dempster Homestead
(fmr), Esperance, a single storey, stone and iron residence in the Victorian
Regency style set in landscaped gardens’. Any proposal to apply a density
to all or part of this site would need detailed heritage assessment. The site
is also impacted by SCA 1 and SCA 9. This request is not supported.
Lot 35 Merivale Road, Myrup
A request was made
to include a shop in association with the Stonehenge attraction on Lot 35
Merivale Road. Stock will included souvenirs, tea and coffee, ice creams and
cool drinks, handcrafts and other craft product, and tourism related
information. The floor area of the shop will not exceed 150m2. Given
the nature of the development already on the site is considered that this is an
appropriate scale of development and is supported.
Lot 9002 Eleven Mile Beach Road, Pink
Lake
A request was made to include a shop on Lot 9002
Eleven Mile Beach Road as was indicated on the approved Structure Plan for the
site. Given that this is in accordance with a Structure Plan the request is
supported.
Lot 5 Downes Street, Pink Lake
The Department of Water identified that this site is
located in a P2 area of the Esperance Water Reserve and within a wellhead
protection zone. Reception centres are incompatible in P2 areas. As a response
to this a modification is proposed to A8 which states that planning approval
cannot be issued unless the proposal complies with the provisions of Water
Quality Protection Note 25 Land Use Compatibility in Public Drinking Water
Source Areas unless it is satisfactory to the Department of Water
Lots 44-48 Connolly Street & Lots
49, 54 & 55 Thompson Street, West Beach
The Department of Water identified that these lots are
located within a P2 area of the Esperance Water Reserve where the minimum lot
size supported by the DoW is 2ha. Both the current and proposed zoning is
inconsistent with the SCA 4 provisions. In response to this it is proposed to
amend the Scheme Map to show these lots as ‘Rural Residential’
which is an approach we have already undertaken in the Racecourse Estate.
General Development Provisions
A number of submissions related to more general
development provisions rather than specific sites. These are summarised below with detailed
responses shown in the Schedule of Submissions (Attachment B)
Unkempt Land
Unkempt land is currently dealt with under the Private
Property Local Law and the Local Government Act 1995. The Shire of
Ravensthorpe are currently advertising their Scheme and it was noted their
provision on Unkempt Land would allow the Shire to deal with unkempt land in a
more effective and efficient manner.
Management of Stormwater
The Department of Water requested that Management of
stormwater on all developments should be in accordance with current best
practice as per the Stormwater Management Manual for Western Australia (DoW,
2007). The Local Government may require the preparation of water management
plans as a condition of development approval as per the Better Urban Water
Management framework.
Special Control Area No. 4
The Department of Water requested despite any other
provision of the Scheme, planning approval will only be issued if the proposal
complies with Water Quality Protection Note 25 Land Use Compatibility Tables
for Public Drinking Water Source Areas. Any approval that creates a variation
from WQPN 25 will need to be supported by the Department of Water (in writing),
before being issued. This modification reflects current practice within the
Special Control Area.
The SCA 4 boundary will need to be amended when any
Public Drinking Water Source Area applying within the Scheme Area is finalised
by the Department of Water. The proposed modification will ensure that any such
amendment is considered a Basic Amendment. This is in response to the future
amendment of the Condingup Plan.
Special Control Area No. 8
The Civil Aviation
Safety Authority requested the incorporation of the PANS-OPS surfaces into the
Special Control Area which required the modification of several clauses and a
minor amendment to the Scheme Map. Typographical errors are also proposed to be
correct as a result of this submission.
Schedule 8 – RR2
The Department of Water queried whether it is possible
to modify the provisions relating to the keeping of horses to include other
stock. The Department of Water has previously raised this issue with the Shire
as all stock create a risk to the water resource. It is proposed to expand the
relevant clauses to include stock.
Schedule 8 – RR6
The Department of Water request that the provisions be
extended to recognise the location of this area
within the Condingup Water Reserve. It is proposed to expand the relevant
clauses where necessary to ensure that this is noted in the Scheme.
Concern of Reservation of Unallocated
Crown Land
The Department of Mines and Petroleum is concerned
over the change of the large areas of unallocated crown land from ‘Rural
Unsettled’ under LPS 23 to ‘Environmental Conservation’ under
LPS 24. They contend that the proposed change to a reserve classification of
‘Environmental Conservation’ gives the impression that mining
activities are not supported for these areas. Whilst the concerns raised are noted it should be noted that
the ‘Environmental Conservation’ reserve was applied as the
previous ‘Rural Unsettled’ zone was not available under the Planning
and Development (Local Planning Scheme) Regulations 2015. It should also be
noted that this is only a Scheme Reserve and does not prevent activities that
can occur under the Mining Act 1978.
Significant Geological Supplies (SGS)
areas under State Planning Policy 2.5
The Department of Mines and Petroleum identified five
proposed Significant Geological Supplies within the Shire and it was
recommended that the Shire considers applying Special Control areas around any
of these areas if they are potentially threatened by conflicting land uses. The
areas identified are proposed to be shown on the Local Planning Strategy maps
which will provide suitable guidance in relation to any intensification of use
through either subdivision or Scheme Amendment and therefore no modification is
required.
Provision of a 'Health Risk
Assessment' for a Proposal
The Department of Health have advised that although
the proposed Scheme encourages 'positive' outcomes for the Shire, it does not
address potential negative issues in relation to such outcomes/developments. It
suggested that the Shire of Esperance could consider a provision within the
scheme to require a 'health risk assessment' for a proposal. The Scheme,
through the Clause 67 of the Planning and Development (Local Planning
Schemes) Regulations 2015, requires due regard to be given to the listed
matters, to the extent that is required in the opinion of the local government.
The proposed modification is not supported.
Modification to Schedule 1 Clause 2
– Minimum Lot Size in Residential Zones
The Department of Health has requested that this
clause be modified to take into account the constraints of on-site effluent
disposal. It is proposed to incorporate this into the Scheme.
Connection to Scheme Water and
Reticulated Sewerage
The Department of Health have requested that the
Scheme should require that any proposed developments are required to connect to
scheme water and reticulated sewerage in accordance with the draft Country
Sewerage Policy (as appropriate). It should be noted that the Draft Government
Sewerage Policy will apply without being incorporated into the Scheme. The
Scheme also already contains provision in relation to the on-site collection of
potable water.
Supply and Standard of Potable Water
The Department of Health have requested that the
Scheme should require that a sufficient supply of potable water is of the
quality specified under the Australian Drinking Water Quality Guidelines 2004.
It is proposed to modify the Scheme to reference the Australian Drinking Water
Quality Guidelines 2004.
Separation Distance Between
Industrial and Sensitive Land Uses
The proposed Scheme is to acknowledge and incorporate
appropriate separation distances in accordance with the EPA Environmental
Assessment Guideline (EAG) 3 'Guidance for the Assessment of Environmental
Factors No. 3 - Separation Distances between Industrial and Sensitive Land
Uses. The Scheme should also acknowledge the DOH's Guidelines for the
Separation of Agricultural and Residential Land Use as a means to help avoid
conflict and potential adverse health effects and nuisance impacts from
chemical use, dust and other rural pursuits. The Scheme incorporates zoning
controls to enforce adequate separation distances and to avoid incompatible
land uses and therefore no modification is proposed.
A number of other issues were identified by staff
during the advertising process.
Fast Food Outlet/Lunch Bar
Prior to advertising the Scheme the Fast Food
Outlet/Lunch Bar was split into two separate land uses. This change as not made
within Schedule 3 A6 and it is proposed to modify the Scheme by separating the
land uses in this table.
Rural Convenience Store
Some rural producers that sell produce from their
sites are diversifying their operation which would currently run afoul of the
Scheme if no modification is made. It is proposed to insert a new land use that
will effectively allow a limited shop within the ‘Rural’ zone (to
25m2) with any larger to become an Additional Use.
Modification to the permissibility of
Telecommunications Infrastructure
It is proposed to amend the permissibility of
Telecommunications Infrastructure to ‘A’ within the
‘Residential’, ‘Rural Residential’ and ‘Rural
Townsite’ zones, ‘D’ within the ‘Rural Smallholdings’
zone and ‘X’ within the ‘Tourist’ zone. The change is
proposed to better reflect the consultation and development requirements based
on the sensitivity of land uses.
Modification to the permissibility of
Recreation - Private
It is proposed to amend the permissibility of
Recreation - Private to ‘X’ within the ‘Residential’
and ‘Rural Townsite’ zones. This modification is consistent with
many other Schemes across the State and will address the amenity issues that
arise with this land use in predominately residential areas.
Amendment to Potable Water Supply
– Catchment Area Calculation
It is proposed to amend the Potable Water Supply
– Catchment Area Calculation in Schedule 1 Clause 17. as a result of the
recently release Rural Planning Guidelines which identified an error in our
current calculation. The modification swaps the tank size for water consumption
which is consistent with the model formula in the Guidelines.
Lot 12 on Diagram 89598, Merivale
The Shire is in the process of acquiring this parcel
of land and it is considered appropriate to apply the Special Purpose reserve.
This reservation allows for purposes that do not fit comfortably within any
other reserve classification.
Lot 336 on Plan 73220 - Esperance Christian School
It is proposed to amend the Scheme Map to reflect the extent
of the Esperance Christian School holdings being Lot 336 on Plan 73220. This
lot is proposed to be modified so that it is reserved for Education.
Reserve 24047 – Cape Arid National Park
Two small areas of Reserve 24047 are shown without a
reservation. It is proposed to correct this drafting error and include these
areas as ‘Environmental Conservation’ as per the rest of the Cape
Arid National Park.
Extraction of Resource to Maintain Public Infrastructure
Recent Shire clearing applications have identified that where
the extraction is occurring on a reserve the reserve should be amended to allow
the extraction before a clearing permit will be approved. It is proposed to
insert a new provision to streamline this process by removing the need to amend
the Scheme when the reserve will be used for the purposes of developing or
maintaining public infrastructure.
General Industry Parking Standards
It is proposed to introduce a reduced parking requirement in
the ‘General Industry’ zone as an industrial shed increases in
size. The proposed modification recognises that larger sheds often do not have
a correlated increase in staff or customer attendance and therefore less demand
on parking.
Based on the submissions received and the internal assessment
of the Scheme it is recommended that the Scheme be supported subject to
modifications.
Financial Implications
The only direct cost in
getting the Scheme to this stage has been in relation to the advertising of
which the notice in the paper represents the majority of the cost ($281.69).
Internal staff resources
have prepared the Scheme.
Future costs associated
with the final approval of the documentation include advertising, modification
of the documentation and Gazettal. The gazettal notice is likely to be in the
vicinity of $12,000 to $15,000.
On Gazettal of the Scheme
the Shire will also be liable for compensation payments to be made where the
Scheme creates an injurious affection. Where the zoning of the land restricts
development over and above the restriction under Local Planning Scheme No. 23
compensation can be claimed. In this instance compensation can be claimed
within 6 months of the Schemes gazettal date. Where land is reserved and
development is refused (or subject to conditions that are considered
unacceptable to the proponent) compensation is payable within 6 months of the
decision.
The amount of compensation payable shall not exceed
the difference between the value of the land as affected by the refusal, or the
imposition of the unacceptable condition as the case may be; and the value of
the land as not so affected. Each of the values are to be market values and
shall be assessed at the date of the claim for compensation. It should be noted
that there is little potential for any compensation claim as Local Planning
Scheme No. 24, as a general principle, has increased development potential
rather than restricted it.
Asset Management Implications
Nil
Statutory Implications
Planning and Development Act 2005
Planning and Development (Local Planning Schemes)
Regulations 2015
Environmental Protection Act 1986
Policy Implications
State Planning Policies prepared and adopted under Part 3 of
the Planning and Development Act 2005
Strategic Implications
Strategic Community Plan 2012 - 2022
Economic
Facilitate and guide high
quality and efficient building and development across the Shire
A community with high
quality and efficient buildings and development
Environmental Considerations
The
Scheme impacts on land uses across the Shire and as such has the potential to
impact on the Environment. The Scheme has been referred to the environmental
agencies and where comments have been received they are outlined in the
attached Schedule of Submissions.
Attachments
|
a⇨.
|
Schedule of Submissions - Under
Separate Cover
|
|
|
b⇨.
|
Submissions on Local Planning
Scheme No. 24 - Under Separate Cover
|
|
|
c⇨.
|
Advertised Version - Local Planning
Scheme No. 24 - Under Separate Cover
|
|
|
Officer’s Recommendation
That Council:
1. In
accordance with Regulation 25(3)(b) of the Planning and Development (Local
Planning Schemes) Regulations 2015 support the draft Scheme with the
proposed modifications to address issues raised in the submissions:
a. Amend the Scheme Map by
rezoning Lots 184 – 187 Burton Road, Castletown to
‘Residential’ with a density of R40.
b. Insert Schedule 2 - 8.(c)(iii)
Stating ‘within SCA 8C planning approval is required for all
development (except Agriculture – Extensive)’
Amend Schedule 2 - 8.(e)(iv)vi by deleting the word ‘and’
Amend Schedule 2 - 8.(e)(iv)vii by renumbering to Schedule 2 -
8.(e)(iv)viii
Insert Schedule 2 - 8.(e)(iv)vii Stating ‘the Esperance Airport
PANS-OPS protection surface; and’
Amend the Scheme Map by inserting SCA 8C a 37.04km by 2km rectangle
centred on the main runway at an angle of 290 degrees.
c. Amend Schedule 2 - 8.(e)(iv)ii.
by inserting the word “Safety” between the words ‘Aviation
Authority’ and replace “Department for Planning and
Infrastructure (Transport Division) with “Department of
Transport”.
d. Amend the Scheme by inserting
into Schedule 1:
“30. Unkempt Land
(a) On any
land within the Scheme area, any undergrowth, refuse, rubbish or disused
material which in the opinion of the local government is likely to adversely
affect the health, comfort or convenience of the inhabitants thereof, the
local government may cause a notice to be served on the owner or occupier of
such land requiring that the land is cleared of trees, scrub,
undergrowth, refuse or rubbish, or such refuse, rubbish or disused material
is removed from such land within a specified period.
(b) Where the owner
or occupier does not clear the land or remove the refuse, rubbish or disused
material as required by the notice, the local government may without payment
or any compensation in respect thereof, clear or remove it and dispose of it
at the expense of the owner or occupier to whom notice is given.
(c) A person
to whom a notice under this clause is given may apply for a review of the
requirement to the State Administrative Tribunal in accordance with the Planning
and Development Act 2005 Part 14. Where such an appeal is lodged, the
effect of the notice and subsequent actions under subclause (b) shall be
suspended until a decision of the State Administrative Tribunal has been
handed down.
(d) Failure to
comply with a notice under this clause shall be a breach of the provisions of
this Scheme.”
e. Amend the Scheme Map by
rezoning a 2 hectare portion of Lot 24 on corner of Hills Road and Cudgee
Close, Myrup to ‘Rural Residential’ with the designation of RR3.
f. Amend the Scheme Map by
rezoning Reserve 31359 to ‘Infrastructure Services’.
g. Amend the Scheme Map by
rezoning Reserve 36365 and portion of Reserve 41248 to ‘Infrastructure
Services’.
h. Insert Schedule 2 - 4.(d)iii
Stating “Despite any other provision of the Scheme planning approval
cannot be issued unless the proposal complies with the provisions of Water
Quality Protection Note 25 Land Use Compatibility in Public Drinking Water
Source Areas unless it is satisfactory to the Department of Water.”
i. Amend the Scheme Map by
rezoning Lot 307 Norseman Road, Chadwick to’ Cultural and Natural
Resource Zone’.
j. Amend Schedule 3 and the
Scheme Map by adding an Additional Use with the following:
No. 12
Location: Lot 408 Yallambee Road, Myrup
Base Zone: Rural
Additional Use(s): As a ‘D’ use: Shop
Development Standards/Conditions: The shop is not to have a net Floor
Area in excess of 36m2.
k. Amend the Scheme Map by
rezoning Lot 432 Freeman Street, Lot 500 George Street, Lot 525 Thompson
Street and Lots 97 and 300 Connolly Street, Sinclair as ‘Rural
Residential’.
l. Amend Schedule 3 and the
Scheme Map by adding an Additional Use with the following:
No. 13
Location: Lot 808 Corry Street, Esperance
Base Zone: Residential
Additional Use(s): As a ‘D’ use: Medical Centre
Development Standards/Conditions: The number of health practitioners
is not to exceed 3.
m. Amend Schedule 3 and the Scheme Map
by adding an Additional Use with the following:
No. 14
Location: Lot 1 Fisheries Road, Myrup
Base Zone: Rural
Additional Use(s): As a ‘D’ use: Shop
Development Standards/Conditions: The shop is not to have a net Floor
Area in excess of 45m2.
n. Amend the Scheme Map by
rezoning Lots 652 and 622 Sims Street, Chadwick to ‘General
Industry’.
o. Amend Schedule 3 by adding the
following uses to Additional Use A11 as a ‘D’ use:
· Holiday Accommodation
· Holiday House
Replace
the Development Standards/Conditions: with ‘Holiday Accommodation is to
comply with the density of R20.’
p. Amend the Scheme Map by
rezoning Lot 422 Pink Lake Road, Nulsen to ‘Residential’ with a
density of R20.
q. Amend Schedule 3 and the Scheme
Map by adding an Additional Use with the following:
No.
15
Location:
Lot 1 Fisheries Road, Myrup
Base
Zone: Rural
Additional
Use(s): As a ‘D’ use: Shop
Development
Standards/Conditions:
1. Should Lot 35 Merivale Road be subdivided this
additional use will only apply to the lot containing the
‘Stonehenge’; attraction.
2. The shop is not to have a net Floor Area in
excess of 150m2.
r. Amend Schedule 3 and the
Scheme Map by adding an Additional Use with the following:
No.
16
Location:
Lot 9002 Eleven Mile Beach Road, Pink Lake
Base
Zone: Rural Residential
Additional
Use(s): As a ‘D’ use: Shop
Development
Standards/Conditions:
1. Should Lot 9002 Eleven Mile Beach Road be
subdivided this additional use will only apply to the lot on the corner of
Eleven Mile Beach Road and Keenan Road.
2. The shop is not to have a net Floor Area in
excess of 150m2.
s. Amend Schedule 2 – SCA 4
by inserting the following:
(h)
Modification of Boundary
Upon
finalisation of any Public Drinking Source Area within the Scheme Area by the
Department of Water, any realignment of the SCA 4 boundary will trigger a
Basic Amendment.
t. Amend the Schedule 1 by
inserting the following:
‘31.
Management of stormwater
Management
of stormwater on all developments should be in accordance with current best
practice as per the Stormwater Management Manual for Western Australia (DoW,
2007). The Local Government may require the preparation of water management
plans as a condition of development approval as per the Better Urban Water
Management framework.’
u. Amend the Development
Standards/Conditions for A8 in Schedule 3 by replacing it with:
1. Planning approval cannot be issued unless
the proposal complies with the provisions of Water Quality Protection Note 25
Land Use Compatibility in Public Drinking Water Source Areas unless it is
satisfactory to the Department of Water
v. Amend Schedule 8 - RR2 by
replacing the word ‘horses’ with ‘stock’ in
subclauses 3. and 4.
w. Amend Schedule 8 - RR6 by
inserting the following:
1. Rural pursuits that have the potential to pollute
the Condingup Water Reserve Public Drinking Water Source Area are to be
refused or referred to the Water Corporation and the Department of Water for
comment and the local government is to be due regard to advice received
from those Agencies when determining applications.
2. Fertilisers, herbicides and insecticides should
be applied sparingly to prevent excess chemicals or nutrients leaching into
the groundwater with particular reference to protecting the Condingup Water
Reserve.
x. Amend the Scheme Map to show
Lots 44 – 48 Connolly Street & Lots 49, 54 & 55 Thompson St
West Beach as ‘Rural Residential’.
y. Amend Schedule 1 Clause
2.(a) by adding ‘ where a sewerage connection is available’ after
Detailed Area Plan.
z. Amend Schedule 1 Clause
2.(b) by renumbering it to Schedule 1 Clause 2.(c).
aa. Amend Schedule 1 Clause 2 by inserting a
new clause 2.(b) stating “For non-sewered lots a minimum lot size not
greater that outlined in subclause (a) is to be consistent with on-site
effluent disposal requirement.”
bb. Amend Schedule 1 Clause 17 by inserting as
separate sentence at the end of the clause “Potable water is of the
quality specified under the Australian Drinking Water Quality Guidelines 2004
(as amended).”
And;
2. Further
inform the Western Australian Planning Commission that as a result of the
local government’s consideration of the draft Scheme under Regulation
25 of the Planning and Development (Local Planning Schemes) Regulations 2015,
the following modifications are required in addition to those raised in the
submissions:
a. Amend Schedule 3 A6 by amending
‘Fast Food Outlet/Lunch Bar’ to two separate uses being
‘Fast Food Outlet’ and ‘Lunch Bar’.
b. Amend the Scheme by inserting
the following into Clause 38:
“rural
convenience store means a
premise used by the occupier of the premise for carrying out a business
where:
(a) It does not
occupy an area greater than 25m2;
(b) Used for retails
sale of goods commonly sold in supermarkets, delicatessens or newsagents; and
(c) Will not
cause injury to or adversely affect the amenity of the neighbourhood;”
c. Add ‘Rural Convenience
Store’ to Table No. 4 – Zoning and Land Use Table with a
permissibility of ‘D’ within the ‘Rural’ zone and
‘X’ in all other zones.
d. Amend the Scheme by inserting
as clause 34.(6):
“Where a rural convenience store use is proposed
the use may not exceed its definition and no variation is permitted under
clause 34.”
e. Amend the permissibility of
‘Telecommunications Infrastructure’ to ‘A’ within the
‘Residential’, ‘Rural Residential’ and ‘Rural
Townsite’ zones, ‘D’ within the ‘Rural Smallholdings’
zone and ‘X’ within the ‘Tourist’ zone.
f. Amend the permissibility
of ‘Recreation - Private’ to ‘X’ within the
‘Residential’ and ‘Rural Townsite’ zones.
g. Amend Schedule 1 Clause 17. by
replacing “Collection area (m2) = 120000 divided by (0.85 multiplied by
(local rainfall in mm -24mm))” with “Collection area (m2) =
Average Household Water Consumption (L) divided by (0.85 multiplied by (local
rainfall in mm -24mm).”
h. Amend Schedule 1 Clause 17.
second dot point by replacing “120000 is the minimum size of the water
tank in litres (unless council has determined an alternative size in
accordance with the scheme)” with “Unless the Shire has
determined otherwise the average household water consumption will be
147,800L.”
i. Amend the Scheme Map by
showing the entirety of Lot 12 on Diagram 89598 as being reserve for
‘Special Purpose’.
j. Amend the Scheme Map by
showing the entirety of Lot 336 on Plan 73220 as being reserved for
‘Education’.
k. Amend the Scheme Map by showing
the entirety of Reserve 24047 as being reserved for ‘Environmental
Conservation’.
l. Amend the Scheme by
inserting as clause 15.(3):
“Despite anything contained in clause 14, a reserve may be used
by the local government for the purposes of developing or maintaining public
infrastructure.”
m. Amend Schedule 6 for ‘General
Industry; by replacing the Minimum Car Spaces (Space/Sq. Metre) with:
“Gross floor area up to and including 400 1
per 100 gross floor area
Gross floor area up to and including 1000 4 bays
plus 1 bay per 150 gross floor area
over 400
Gross floor area over 1000 8
bays plus 1 bay per 200 gross floor area
over 1000
plus 1 per 40 gross office floor area
Minimum 3 Spaces”
Voting Requirement Simple Majority
|
Item: 12.1.2
Purchase
of On-Site Accommodation at Seafront Caravan Park
|
Author/s
|
Trevor Ayers
|
Manager Community & Economic Development
|
|
Authorisor/s
|
Terry Sargent
|
Director External Services
|
File Ref: D17/531
Applicant
Internal Report
Location/Address
Site 45 at Seafront Caravan Park
Executive Summary
The current owners of the on-site accommodation at
Site 45 are interested in selling. This item seeks approval to purchase this to
add to the accommodation mix currently available at the caravan park.
Recommendation in Brief
That Council approves the purchase of a caravan and
annexe (currently privately owned) on Site 45 a the Esperance Seafront Caravan
Park, approve a budget amendment to enable this to happen and approve a new set
of fees for this property.
Background
Discussions have been held
over the past few months with the current long-term tenants at the Seafront
Caravan Park to discuss their options following expiry of the lease with the
D’Emden’s. All tenants are aware that Council is looking at
undertaking a redevelopment of the caravan park in the future which will
impacts on the ability to provide any guarantee of long-term tenure on any
site.
The current long-term tenants of site 45, the
Whiteways, approached the Shire just before Christmas to better understand
their position as they would like to exit the park. They were aware that the
lack of tenure that could be offered with the on-site van would significantly
impact on its value and, after discussions agreed to the Shire for an amount of
$5,000, understanding that this would be dependent on Council approving the
purchase. This is significantly below the amount that they paid for it
approximately 5 years ago.
Officer’s Comment
The on-site van being
considered consists of (see attachment A for photo’s):
On-site van with double
bed at one end, kitchen etc in the middle and another (smaller) room at the
other end that can house a small set of bunk beds. A step down into a large
living area (which is also the entrance to the property) contains lounge area
with air conditioning. At the end of this room is another bedroom that can
contain up to 2 sets of bunk beds (4 beds) with a door into a wet area
containing bathroom and toilet. There is also an outdoor undercover area
adjacent to this living area. All annexe areas etc. have building approvals.
This provides us with the
opportunity to add a family cabin option to our existing on-site accommodation
mix. The ability to house a larger family unit is a useful selling point. This
also provides a precedent for those remaining long-term tenants with on-site
structures that are at a quality that we would be comfortable acquiring and
on-letting.
As this is a different
cabin option to those that we currently have on the books it is proposed to
also add another category and price point to our fees and charges. In this
instance it is recommended that we add a ‘family cabin’ to our
existing ‘standard cabin’ and ‘ensuite cabin’ at a
price of $150 per night or $900 per week.
With the intention to undertake a redevelopment plan
in the near future and the uncertainty this creates around any impact on both
available tenure of long-term tenants as well as sighting of any existing
infrastructure, this deal represents an opportunity for one of the long-term
tenants to exit at a price that minimizes the rick to Council. The risk to Council
largely stems around the uncertainty of the unit being purchased fitting the
future direction of the park, both in location and style. At $5,000 the outlay,
along with an allowance for operating and demolition and removal costs should
be recouped within approximately 12 months. This is expected to provide a
period of time for this unit to also provide a positive return to the park
operations before it is likely to be removed.
Consultation
Building approvals and
compliance requirements have been checked with Development and Statutory
Services who have confirmed that building approvals are held for structures and
improvements on site.
Maintenance Services have
also inspected the unit to confirm that it appears to be in sound condition.
The current Caravan Park managers have been consulted
with regards to potential demand and proposed pricing.
Financial Implications
The financial implications arising from this report are
(potential income has not been factored into this and will be dealt with as
part of the budget review process).
|
Description
|
Budget Figure
|
Amended Figure
|
Variation
|
|
01-8210-705-660
|
Caravan park –
purchase of Assets
|
127,000
|
132,000
|
5,000
|
|
Decrease in current Cash
Surplus
|
|
|
(5,000)
|
|
Net result
|
Nil
|
|
|
|
|
|
Asset Management Implications
This asset is being purchased with the expectation that it
may only be in place for two years. There is no replacement or major upgrades
proposed, with any minor maintenance to come from the existing caravan park
maintenance budget.
Statutory Implications
6.19 of the Local Government Act 1995 sets out the process
for the imposition of a new fee or charge.
Policy Implications
Nil
Strategic Implications
Strategic Community Plan 2012 - 2022
Economic
Deliver a diverse range
of affordable services and infrastructure across the Shire
A range of services,
facilities and programs that the broadest community can access
Environmental Considerations
Nil
Attachments
|
a⇩.
|
Photographs - Site 45 - Esperance
Seafront Caravan Park
|
|
|
Officer’s Recommendation
That Council
1. Endorse the
purchase of the caravan and annexe contained on Site 45, Esperance Seafront
Caravan park on a walk-in, walk-out basis from Mr & Mrs Whiteway.
2. Amend the
Municipal Budget (as follows) to enable this purchase to be undertaken:
|
Description
|
Budget Figure
|
Amended Figure
|
Variation
|
|
01-8210-705-660
|
Caravan park –
purchase of Assets
|
127,000
|
132,000
|
5,000
|
|
Decrease in current
Cash Surplus
|
|
|
(5,000)
|
|
Net result
|
Nil
|
|
|
|
|
|
3. Create an
additional class of fee for the Esperance Seafront Caravan park, being
‘Family Cabins’ and set the following fees for the remainder of
the 2016/17 year.
· Daily Rate (2 people) - $150
· Weekly rate (2 people) - $900
· Extra Person Daily Rate - $10
· Extra Person Weekly Rate - $60
4. Give public
notice of the imposition of the new fees identifying that they will commence
from February 1 2017.
Voting Requirement Absolute
Majority
|
12.2 Asset Management
Item: 12.2.1
Plant
& Vehicle Asset Management Plan 2016
|
Author/s
|
Bill Parry
|
Manager Asset Planning
|
|
Authorisor/s
|
Mathew Walker
|
Director Asset Management
|
File Ref: D17/262
Applicant
Asset Planning
Location/Address
Whole of Shire
Executive Summary
To allow Council to consider the Plant and Vehicle
Asset Management Plan 2016
Recommendation in Brief
That Council accepts the Plant and Vehicle Asset
Management Plan 2016
Background
The Shire owns and operates a fleet of plant and
equipment that enables it to provide services required by the community.
Organisational mobility is essential for moving people, materials and tools to
works sites. This mobility enables a range of community services and is
essential to productivity and achieving the desired levels of service.
The Plant & Vehicle Asset Management Plan 2016 has
been reviewed in line with the adopted Asset Management Strategy 2015. As
with Council’s acceptance of the 10 Year Plant Replacement Program in
March 2013, annual budget allocations have been matched to the projected
renewal expenditure providing an on-going fully funded program.
Officer’s Comment
This Asset Management Plan has been developed using
the current National Asset Management Strategy (NAMS) format.
Assets identified in this plan are summarised as
follows:
|
Asset category
|
Dimension
|
Quantity
|
Current replacement value
|
Depreciated replacement value
|
Annual depreciation value
|
|
Plant
|
Includes graders, loaders, trucks, rollers, road plant
|
96
|
$13,394,572
|
$8,643,385
|
$1,533,726
|
|
Vehicles
|
Light operational vehicles
|
66
|
$3,000,804
|
$2,273,577
|
$436,487
|
|
Miscellaneous
|
Includes mowers, trailers, small plant
|
|
Not capitalised
|
|
TOTAL
|
|
|
$16,395,376
|
$10,916,962
|
$1,970,213
|
Key assumptions used in this plan include:
· To ensure a uniform view of Plant and
Vehicle asset renewal requirements, this AMP includes assets from all Shire
funded departments and business units including Homecare, Airport and Wylie Bay
Landfill. Future AMP’s developed for individual business units may
identify these assets and their values but not the financial impacts.
· Values and projections are Net only
· Sundry Plant has not been included as
values are below the $5,000 threshold and therefore not capitalised
Sustainability reporting compares the rate of annual
asset consumption to renewal and upgrade:
|
DLG Measure
|
Plant
|
Vehicles
|
Description
|
Expected range
|
|
Asset Consumption Ratio
|
65%
|
76%
|
Depreciated Replacement/Current Replacement
A ratio of less than 50% indicates a rapid deterioration of the asset
base. A ratio greater than 75% indicates an over investment.
|
50% to 75%
|
|
Asset Sustainability Ratio
|
82%
|
96%
|
Renewal expenditure/Depreciation exp
A ratio of less than 90% indicates under investment in renewal and
replacement. A ratio greater than 110% indicates over investment.
|
90% to 110%
|
|
Asset Renewal Funding Ratio
|
100%
|
100%
|
10 yr NPV planned exp / 10 yr NPV required exp
A ratio less than 95% indicates there may be inadequate provision for
asset renewal and replacement.
|
95% to 105%
|
Projected Operating and Capital Expenditure and
Budget:
Consultation
This AMP has been prepared and reviewed internally by
Asset Management and Planning staff and across departments including Corporate
Resources.
Financial Implications
This AMP outlines current values and expenditure and
identifies the Shire’s performance against established Department of
Local Government KPI’s.
Based on Council’s acceptance of the 10 Year Plant
Replacement Plan there is no funding gap
Asset Management Implications
Implications for the 10 Year renewal plan are outlined in the
Asset Management Plan
Statutory Implications
Nil
Policy Implications
Nil
Strategic Implications
Strategic Community Plan 2012 - 2022
Economic
Maintain the
Shire’s robust asset management practices and maintenance programs
Assets which meet the
expectations of the community
Corporate Business Plan 2016/2016 – 2019/2020
|
3.1.1 Manage Asset Management Directorate
|
Provide timely, efficient, and quality renewal,
maintenance and administration of Shire Assets
|
|
3.4.1 Implement asset management plans across Shire
Operations
|
Integrate asset management across Shire operations, based
on whole of life, sustainability and level of service principals
|
|
3.4.2 Manage the Shire Fleet
|
Maintain and replace the Shire’s fleet
|
Environmental Considerations
Nil
Attachments
|
a⇨.
|
Plant & Vehicle Asset
Management Plan 2016 - Under Separate Cover
|
|
|
Officer’s Recommendation
That Council:
1. Accept the
Plant & Vehicle Asset Management Plan 2016, and;
2. Incorporate
the Renewal Program into the Long Term Financial Plan
Voting Requirement Simple Majority
|
12.3 Corporate Resources
Item: 12.3.1
Lease
- Grass Patch Hall
|
Author/s
|
Sarah Walsh
|
Corporate Administration Officer
|
|
Authorisor/s
|
Jennifer Parry
|
Manager Corporate Support
|
File Ref: D16/30462
Applicant
Grass Patch Community Development Association
Location/Address
Lots 77 and 79 Shepherd Street Grass Patch, being Reserve
30395 (48,034.86m2)
Executive Summary
For Council to consider leasing the above mentioned
property known as Grass Patch Community Hall to Grass Patch Community
Development Association (Inc).
Recommendation in Brief
That Council, subject to the approval of the Minister
for Lands, agrees to lease for 21 years, Lots 77 and 79 Shepherd Street Grass
Patch, being Reserve 30395, to Grass Patch Community Development Association
(Inc).
Background
In 2004 a License
Agreement was created between the Shire of Esperance and Grass Patch Community
Development Association for 5 years due to expire on 31 March 2009. This lease
included an option to extend for a further 5 years to expire in 2014.
As officers examined the lease in order to proceed
with the option to extend, it was discovered that the Shire had no authority to
lease this reserve. Consultation with and a request to the Department of Lands
has since resulted in a Management Order being allocated to the Shire including
the power to lease Reserve 30395 for any term not exceeding 21 years.
Officer’s Comment
Having a lease in place provides Grass Patch Community
Development Association the opportunity to source funds from the Shire for
maintenance and repairs as per the Reserve Funding for Community Halls Policy
and is also beneficial for both Grass Patch Community Development Association
and the Shire in clearly defining the responsibilities for each party.
Consultation
Grass Patch Community Development Association
Department of Lands
Financial Implications
A Lease Preparation Fee of $115.00 as specified in the
Council Adopted 2016-2017 Fees & Charges will be applied along with the
cost of any legal fees charged by McLeod Barristers & Solicitors for Lease
advice sought.
Asset Management Implications
The Shire of Esperance is responsible for structural
maintenance and repairs as per the Reserve Funding for Community Halls Policy.
Statutory Implications
Local Government Act 1995 - Section 3.58 Disposing of
Property
Local Government Act 1995 – Section 9.49A Execution
of Documents
Policy Implications
This item relates to the following two Council Policies;
Corp 004: Building and Property Leases; and
Corp 012 Reserve Funding
For Community Halls
Strategic Implications
Strategic Community Plan 2012 - 2022
Civic Leadership
Be innovative in the
management of Shire operations, services, staff and resources to create a
resilient and financially stable Shire
A Shire that is
progressive, sustainable, resilient and adaptive to changes
Corporate Business Plan 2013/2014 – 2016/2017
Manage Shire leases and insurances
Environmental Considerations
Nil
Attachments
|
a⇩.
|
Grass Patch Community Development
Association Request For Lease
|
|
|
Officer’s Recommendation
That Council agrees to lease to Grass Patch Community Development
Association (Inc), Reserve 30395 for the purpose of Recreation and is subject
to the following;
1. Approval of the Minister
of Lands;
2. The term of the lease to
be 21 years;
3. The lease rental to be
$1.00 as and when demanded;
4. The charge of a $115.00
Lease Preparation Fee along with the reimbursement at cost to Council of any Legal Fees
pertaining to this Lease;
5. The lease area is to be
4.80 ha, the portion of land identified as Reserve 30395; Lot 77 on Plan
174173 Shepherd St – Lot 79 on Plan 181235 Shepherd St Grass Patch
being whole of Reserve 30395 as defined in the lease and displayed clearly in
the lease document;
6. The use of the property to
be for Recreational use;
7. That all lease terms and
conditions be as the Shire Standard Lease for Sporting and Community Groups;
and
8. Authorises the CEO to execute the
lease in accordance with Section 9.49A of the Local Government Act 1995
for Execution of Documents.
Voting Requirement Simple Majority
|
Item: 12.3.2
Lease:
Shark Lake Industrial Park Agricultural Land
|
Author/s
|
Sarah Walsh
|
Corporate Administration Officer
|
|
Authorisor/s
|
Jennifer Parry
|
Manager Corporate Support
|
File Ref: D16/30487
Applicant
Jonathon Knox
Location/Address
Lot/s 20, 21, 9500, 122, 123, 124, 125, 26, 127, 128,
129, 130, 131, 132, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47 on
deposited plan 64784 in Shark Lake Industrial Park, Shark Lake Road, Esperance.
100.28 hectares (247.79
acres).
Executive Summary
For Council to consider extending the lease of Shire
owned land at Shark Lake Industrial Park for the purpose of agriculture,
subject to the land still being available for sale as industrial land use.
Recommendation in Brief
That Council agrees to extend the Lease to Jon Knox on
the above identified lots in the Shark Lake Industrial Park, Shark Lake Road
Esperance for three (3) years.
Background
Shark Lake Industrial Park was established in 2009.
The land was advertised for sale, however interest
was scarce and no sales of land occurred within the Shark Lake Industrial Park
at the time.
Submissions were called for Tender 1113 Shark Lake
Agricultural Land Lease in late 2013 to lease the land from grazing purposes. A
report was presented to the Ordinary Council Meeting on 28 January 2014 where
Council resolved to award the Tender to Jon Knox for a term of 2 years with
five additional one (1) year options, at the discretion of Council.
Sale of Lot 39, Shark Lake Road was settled in August
2015 for $140,000.00. This reduced the leased land area by 13,292.86 m2,
and therefore the rent on the Lease was altered from $3,200.00 per annum to
$3,158.13 per annum (including GST).
Officer’s Comment
Mr Knox has requested to extend the
Lease for a term of three (3) years rather than the already approved one year
options. Having a longer lease will aid Mr Knox to better plan crop and sheep
rotations, budgets, fertiliser use and weed control.
The lease area will be 1,002,751.38
meters square.
Mr Knox is currently using the land for grazing
purposes, which is assisting to maintain the land as well as weed and fire
mitigation. All dealings and negotiations with Mr Knox regarding the Lease
and/or sale of lots included in the Lease have been pleasant and no reason can
be found as to why a further term of 3 years would not be granted.
Consultation
Jon Knox
Manager Community and Economic Development
Financial Implications
The rent on the property is
$3,158.13 per annum (inc GST), a rate of $12.75 per acre.
Asset Management Implications
Asset Management implications are minimal being that the
lease is land only with the Lessee being responsible for all maintenance.
Statutory Implications
Local Government Act 1995 - Section 3.58 Disposing of
Property
Policy Implications
COR 004: Building and Property Leases
Strategic Implications
Strategic Community Plan 2012 - 2022
Civic Leadership
Be innovative in the
management of Shire operations, services, staff and resources to create a
resilient and financially stable Shire
A Shire that is
progressive, sustainable, resilient and adaptive to changes
Corporate Business Plan 2013/2014 – 2016/2017
Manage Shire leases and insurances
Environmental Considerations
Nil
Attachments
|
a⇩.
|
Jon Knox: Request for lease - Shark
Lake Agricultural Land
|
|
|
Officer’s Recommendation
That Council agree to extend the
current Lease for the Shark Lake Industrial Park, Shark Lake Road
Esperance, to Jon Knox, subject to the following:
1. The Lease area being
1,002,751.38 meters square;
2. The rent be $3,158.13
inclusive of GST per annum;
3. The Deed of Extension be
for a term of three (3) years;
4. Authorises the CEO to execute the
lease in accordance with Section 9.49A of the Local Government Act 1995
for Execution of Documents.
Voting Requirement Simple Majority
|
Item: 12.3.3
Request
to Lease - Old School Master's Residence Museum Village
|
Author/s
|
Jennifer Parry
|
Manager Corporate Support
|
|
Authorisor/s
|
Robbie Meerman
|
Acting / Director Corporate Resources
|
File Ref: D16/30552
Applicant
Brian Gallop T/as Esperance Cafe
Location/Address
Portion of Lot 59 on Diag 5742, 56 Dempster Street Esperance
– Museum Village Park
Executive Summary
For Council to consider leasing the Old School
Master’s Residence in Museum Village to Brian Gallop to be utilised as a
café.
Recommendation in Brief
That Council agrees to enter into a lease with Brian
Gallop to operate a café in the Old School Master’s Residence in
Museum Village subject to certain conditions.
Background
The Old School
Master’s Residence in the Museum Village has previously been leased out
as a Café for over 25 years. In this time it has been leased to many
parties with renovations taking place to the point that it is considered that
most of the property’s historic value has been altered.
The Old School
Master’s Residence in Museum Village has now been unoccupied since
December 2015 when the previous lessee elected to vacate, removing all
café catering equipment and seating. The property has been shown to
several interested parties this year with none being prepared to enter into a
long term agreement.
A proposal to open a
pop-up shop for an approximate 6 week period over the 2016/2017 Christmas holiday
period was approved by Council in the Ordinary Council Meeting of 20 December
2016.
The timeframe for the
proposed pop-up shop will not affect Mr Gallop’s application.
This proposal includes trading hours of 7am to 3pm, 7 days
per week, which will be in line with Council’s preferred trading hours
for a café in the Museum Village. In accordance with the Commercial
Tenancy (Retail Shops) Agreement Act 1985, the minimum term of the lease
will be 5 years.
Officer’s Comment
In the wake of past leasing issues
experienced with this premises, Mr Gallop has been advised to speak with Shire
Planning, Building and Health Departments to ensure that he is fully aware of
all requirements and/or limitations of using the building as a Café.
In addressing Mr Gallop’s
proposal, he stated that “There are several issues that I request are
fixed prior to entering into a lease with the Esperance Shire Council
(sic) for the ‘Old School Masters House’ in Museum Village…”
and he went on to identify 6 issues.
With these points in mind, Manager
Corporate Support requested a joint inspection of the property with the
Shire’s Senior Building Surveyor and Environmental Health Officer in
order to identify any structural faults or defects with the premises being used
as a food premises. Several issues were found (report attached) with most being
mentioned by Mr Gallop in his Memo to Shire Councillors dated 20 December 2016
(attached).
The Shire’s Asset Management
department was requested to review the recommendations from Health and Building
departments for this premises and has estimated that approximately $12,000
would be required to be spent on the building. This work would only be to make
the premises compliant with statutory obligations. Mr Gallop will be advised
that any further fit-out for commercial premises, including those specified by
Health & Building Acts and Regulations would be the Lessees responsibility.
It is considered that there are three
options available to Council to resolve this matter;
Option 1 –
That Council agrees to lease the
property known as the Old School Master’s Residence, Museum Village Park
to Brian Gallop subject to;
1. The term of the lease
being 5 years;
2. The lease rental to be
$18,619 per annum (GST exclusive);
3. A lease preparation
fee of $500.00 (GST exclusive) apply;
4. The lease area to be a
portion of Lot 59 Dempster Street Esperance, described and defined as the
‘Old School Master’s Residence’ in the lease and displayed
clearly in an attachment to the lease document;
5. All lease terms and
conditions be as per Council Standard Commercial Lease;
6. All premises fit-out
for commercial operational purposes, including those specified by Health &
Building Acts and Regulations would be the Lessees responsibility;
7. The proposed lease to
be advertised in accordance with the Local Government Act 1995 s.3.58 Disposing
of property; and
8. Authorises the CEO to
execute the agreement in accordance with Section 9.49A of the Local
Government Act 1995 for Execution of Documents.
This option would be for Council to agree to lease the
property to Mr Gallop as per existing policies including carrying out the
maintenance works required to make the premises compliant with statutory
obligations.
Option 2 –
That Council agrees to lease the
property known as the Old School Master’s Residence, Museum Village Park
to Brian Gallop subject to;
1. The term of the lease
being 5 years;
2 The lease rental
to be $6,206.33 per annum (GST exclusive);
3 A lease
preparation fee of $500.00 (GST exclusive) apply;
4 The lease area to
be a portion of Lot 59 Dempster Street Esperance, described and defined as the
‘Old School Master’s Residence’ in the lease and displayed
clearly in an attachment to the lease document;
5 All lease terms
and conditions be as per Council Standard Commercial Lease;
6 All premises
fit-out for commercial operational purposes, including those specified by
Health & Building Acts and Regulations would be the Lessees responsibility;
7 The proposed
lease to be advertised in accordance with the Local Government Act 1995 s.3.58
Disposing of property; and
8 Authorises the
CEO to execute the agreement in accordance with Section 9.49A of the Local
Government Act 1995 for Execution of Documents.
This option would be for Council to agree to lease the
property to Mr Gallop as per his proposal (reduced rent) including carrying out
the maintenance works required to make the premises compliant with statutory
obligations.
Option 3 –
That Council rejects the proposal
from Brian Gallop to lease the property known as the Old School Master’s
Residence, Museum Village Park.
It is considered that Option 1 be a
justifiable choice given the upfront expense to Council to make the premises
compliant with statutory requirements for a food premises, whilst fulfilling
the desire to have all properties leased in the Museum Village. Reducing the
rent as per Option 2 to Mr Gallop’s proposed rent of $42.66/m2 p.a.
would be unfair to the other 9 lessees who are paying the required rent
at $128/m2 p.a.
Consultation
Brian Gallop
Museum Village Markets Inc.
Shire Building Surveyor
Shire Environmental Health Officers
Manager Strategic Planning
Shire Asset Management
Financial Implications
In August 2015 Council increased the
rent/m2 on the Museum Village properties to ensure consistency with
other commercial rents offered in the CBD. The rent currently being asked for
this property on a longer term basis is $358 (ex GST) per week ($18,619 ex GST
per annum) which equates to $128/m2 (ex GST) per annum.
A recent rent comparison with local
CBD commercial properties resulted in the current per m2 rates for
properties that have recently leased in town are between $150 - $180/m2 per
annum; although anecdotally local CBD rents are said to be much lower in the
current market.
Mr Gallop’s proposal requests
that Council consider reducing the rent payable by 66% on this premises to be
$6,206.33 (ex GST) per annum, in order to make the business venture more viable
due to the restriction in number of seating available placed on the premises.
This lease if approved will include a lease preparation fee
of $500.00 (Ex GST) as per Shire Schedule of Fees and Charges.
Asset Management Implications
Maintenance required to the building
was not undertaken when the previous tenant vacated the building due to the
unknown purpose of the building for any new tenant that may apply. Any
maintenance issues that are required under statutory regulations will need to
be completed prior to the lessee gaining access to the building.
Mr Gallop is aware that any other maintenance required and
the fit out of commercial kitchen equipment will be at his cost.
Statutory Implications
Local Government Act 1995 – Section 3.58 Disposing of property
Local Government (Functions and General) Regulation 1996 – Section 30 Disposing of property
excluded from Local Government Act Section 3.58
Local Government Act 1995 – Section 9.49A Execution of documents
Commercial Tenancy (Retail Shops) Agreement Act 1985
Building Act 2011
Food Act 2008
Policy Implications
COR 003: Museum Park Buildings Leasing Arrangements
COR 004: Building and Property Leases
Strategic Implications
Strategic Community Plan 2012 - 2022
Civic Leadership
Be innovative in the
management of Shire operations, services, staff and resources to create a
resilient and financially stable Shire
A Shire that is
progressive, sustainable, resilient and adaptive to changes
Social
Create a vibrant built
environment that is accessible and inclusive and reflects the Shire’s
identity and local heritage
Corporate Business Plan 2013/2014 – 2016/2017
Manage Shire leases and insurances
Environmental Considerations
Nil
Attachments
|
a.
|
Business Proposal Memo to
Councillors - Confidential
|
|
|
b.
|
Business Plan - Confidential
|
|
|
c.
|
Project Scope - Confidential
|
|
|
d.
|
Old School Master's Residence Joint
Building Inspection - Confidential
|
|
|
Officer’s Recommendation
That Council agrees to lease the
property known as the Old School Master’s Residence, Museum Village
Park to Brian Gallop subject to;
1. The
term of the lease being 5 years;
2. The
lease rental to be $18,619 per annum (GST exclusive);
3. A
lease preparation fee of $500.00 (GST exclusive) apply;
4. The
lease area to be a portion of Lot 59 Dempster Street Esperance, described and
defined as the ‘Old School Master’s Residence’ in the lease
and displayed clearly in an attachment to the lease document;
5. All
lease terms and conditions be as per Council Standard Commercial Lease;
6. All
premises fit-out for commercial operational purposes, including those
specified by Health & Building Acts and Regulations would be the Lessees
responsibility;
7. The
proposed lease to be advertised in accordance with the Local Government Act
1995 s.3.58 Disposing of property; and
8. Authorises
the CEO to execute the agreement in accordance with Section 9.49A of the Local
Government Act 1995 for Execution of Documents.
Voting Requirement Simple Majority
|
Item: 12.3.4
Financial
Services Report - December 2016
|
Author/s
|
Beth O'Callaghan
|
Manager Financial Services
|
|
Authorisor/s
|
Robbie Meerman
|
Acting / Director Corporate Resources
|
File Ref: D17/691
Attachments
|
a⇩.
|
Monthly Financial Report - December
2016
|
|
|
Officer’s Recommendation
That the report entitled Monthly
Financial Management Report (incorporating the Statement of Financial
Activity) for the month of December 2016 as attached be received.
Voting Requirement Simple Majority
|
12.4 Executive Services
Item: 12.4.1
New Activities on
Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2016
|
Author/s
|
Priscilla Davies
|
Manager Executive Services
|
|
Authorisor/s
|
Matthew Scott
|
Chief Executive Officer
|
File Ref: D16/29171
Applicant
Internal
Location/Address
N/A
Executive Summary
For Council to endorse the draft Activities on
Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2016
which incorporates minor changes suggested by the Department of Local
Government and Communities (DLGC).
Recommendation in Brief
That Council
1. Endorse the Activities
on Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2016
and;
2. Requests
the CEO undertake all the required statutory advertising
Background
Council endorsed the repeal of the Activities on
Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2001 at
the 27 September Ordinary Council Meeting. This repeal was undertaken due to
the significant changes required to ensure the Shire of Esperance had an
Activities on Thoroughfares and Trading in Thoroughfares and Public Places
Local Law that was relevant and provided a robust framework that supports the
Esperance Community.
Council endorsed the draft Activities on Thoroughfares
and Trading in Thoroughfares and Public Places Local Law 2016 at an Ordinary
Council Meeting on the 27 September 2016 (O0916-028) and made the following
recommendation:
1. Requests
the Chief Executive Officer commences the law-making process for the Shire of
Esperance Activities on Thoroughfares and
Trading in Thoroughfares and Public Places Local Law 2016, the purpose and
effect of the local law being as follows:
Purpose: To replace the
Activities on Thoroughfares and Trading
in Thoroughfares and Public Places Local Law 2001 to ensure currency and adherence to legislation requirements and to consolidate and make one law relating to Activities
on Thoroughfares and Trading in Thoroughfares and Public Places.
Effect: To acknowledge
some activities are prohibited and some
activities are permitted only under permit on thoroughfares and public places.
2. That Council authorises the Chief Executive
Officer under per s3.12(3) of the Local Government Act 1995:
(i) to undertake all statutory
advertising; and
(ii) provide a copy of the proposed local
law and public notice to the Minister for Local Government.
3. That the Chief Executive Officer, after the
close of the public consultation period, submits a
report to the Council on any submissions received on the proposed local law to
enable Council to consider the submissions made and to determine whether the
local law is in accordance with s3.12(4) of the Local Government Act 1995.
The draft Activities on Thoroughfares
and Trading in Thoroughfares and Public Places Local Law 2016 was advertised as
per legislative requirements. One submission was received in writing from the
Department of Local Government and Communities. The recommendations were of a
governance nature, providing more clarity, correcting referencing errors and
improving formatting and general layout of the document. These recommendations
have been predominately included in to the draft and do not have any impact on
the intent, purpose or effect of the draft. A full
Officer’s Comments
The
draft Activities on
Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2016
will have a direct impact on issues currently being experienced in
Esperance. The implementation of this local law will provide local
business with improved opportunities and consistency. Of particular importance are the provisions relating to
signage and trading. The new Local Law will provide flexibility in the approval
process, whilst still maintaining enough prescriptive detail for the Shire to
adequately govern within the district. Formal and informal community
consultation was undertaken prior to the drafting of this Local Law to ensure
it was more appropriate to our community.
The Department of Local
Government and Communities made a submission during the advertising of this
draft. These recommendations are listed below with an officers comment
detailing how these changes have or have not been incorporated into the
Activities on Thoroughfares and Trading in Thoroughfares and Public Places
Local Law 2016.
|
DLGC Recommendation
|
Section
|
Officers Comment
|
|
Clause 1.2 – Definitions
Some terms used in the local law are not defined at clause
1.6. The Shire may wish to include definitions for the following terms:
· local public notice
· Schedule
· temporary crossing
· vehicle crossing
· water course
Whilst these definitions may not be
necessary, they may assist readers and reduce the possibility of
misinterpretation.
It is also suggested that the
defined term vehicle expressly exclude a shopping trolley.
Shopping trolleys tend to be in the same class as other common exceptions
(i.e. wheelchairs and prams).
|
1.6
|
Definition for Local Public Notice
and Schedule included in the Local Law
Definitions for temporary crossing,
vehicle crossing and water course have not been included as the Shire is
satisfied that these terms are understood within the context of the current
language.
The defined term for vehicle now
expressly excludes shopping trolley.
|
|
Clause 2.6 – Acceptable material
Subclause 2.6 states that an “acceptable
material” is any material that appears on a particular list maintained
by the local government.
The Delegated Legislation Committee has formed the general
view that local governments do not have the legislative authority to draft
local laws that give legislative effect to local policy. This is because
local government policy can be changed by resolution or a simple
administrative decision, which would then change the effect of a local law in
a way that is not subject to parliamentary scrutiny.
The Committee has dealt with a similar issue regarding the
local laws of other local governments. The Committee’s conclusions on
the subject are set out in item 7 of the JSDCL 38th report.
It is suggested that the issue be dealt with by either of
the following:
· amend clause 2.6 to include a list of acceptable
materials; or
· Change the definition to refer to “any material
approved by the local government”.
|
|
Remove:
“acceptable
material” means any material which will create a hard surface, and
which appears on a list of acceptable materials maintained by the local
government
Changed to:
"acceptable material" means any material approved by the local
government.
|
|
Clause 2.10 Obligations of owner or occupier
As paragraph (e) is currently worded, a person will
potentially be subject to a fine whenever a sprinkler malfunctions and
continues to protrude from the lawn after being used.
Paragraphs (e)(ii) and (e)(iii) will apply whenever
sprinklers provide an unreasonable inconvenience or an actual hazard to
pedestrians and other persons. It is suggested that the Shire should assess
this protection and determine whether it removes the need for subparagraph
(i).
|
|
Remove:
(i) do
not protrude above the level of the lawn when not in use;
(ii)
are not used at such times so as to cause
unreasonable inconvenience to pedestrians or other persons; and
(iii)
do not otherwise present a hazard to pedestrians or other
persons.
Changed to :-
(i) are
not used at such times so as to cause unreasonable inconvenience to
pedestrians or other persons; and
(ii) do
not otherwise present a hazard to pedestrians or other persons.
|
|
Clause 4.8 – Retailer taken to own trolley
This clause
provides that in the absence of evidence to the contrary, it will be assumed
that a shopping trolley is owned by whichever retailer is marked on that
trolley.
As a rule,
the plaintiff to a legal action is responsible for proving the elements of
that legal action. This rule is presumed to apply except where enacting
legislation has expressly stated otherwise.
The Committee has
previously explored this issue in the local laws of other local governments.
In those cases, the Committee concluded that it would permit the clause,
since the burden on retailers was not particularly harsh.
However, the Committee
has concluded that the clause may not be legally valid and its enforceability
may be subject to legal challenge. This conclusion is set out in
item 4 of the Committee’s 16th report, available on the
Parliament website. The Shire should keep this in mind if it chooses to
retain the clause and rely on it in the future.
|
|
Noted.
The Shire of Esperance included
this clause as a simple means of returning trolleys to their most probable
location. The number of local businesses who own trolleys is minimal in
Esperance (three).
The clause will remain.
|
|
Part 5 – Roadside Conservation
Clause 5.1 defines the Roadside
Conservation Committee as the “Roadside Conservation Committee
established under the Land Resource Policy Council within the Office of
Premier and Cabinet”.
The Roadside Conservation Committee
is now administratively supported by the Department of Parks and Wildlife and
reports to the Minister for Environment.
Clause 5.4 refers to the Code of
Practice for Roadside Conservation and Road Maintenance. This Code has
been replaced by the “Handbook of Environmental Practice for Road
Construction and Road Maintenance Works”.
It is suggested that Part 5 be
amended to account for these two issues.
|
|
Remove:
"Roadside
Conservation Committee" means the Roadside Conservation Committee
established under the Land Resource Policy Council within the Office of
Premier and Cabinet; and
Changed to:
"Roadside
Conservation Committee" is comprised of members representing relevant agencies and the
community. The Committee reports to the Minister for Environment (who
appoints its members), and is chaired by a nominee from Parks and Wildlife.
Remove:
Clause 5.4
Construction and maintenance work carried out by the local government on a
flora road is to be in accordance with the 'Code of Practice for Roadside
Conservation and Road Maintenance' prepared by the Roadside Conservation
Committee.
Changed to:
Clause 5.4
Construction and maintenance work carried out by the local government on a
flora road is to be in accordance with the 'Handbook of Environmental
Practise for Road Construction and Road Maintenance Works’ prepared by
the Roadside Conservation Committee.
|
|
Clause 6.3 - Traders required to move on after purchase
Clause 6.3(3) requires a street
trader to move on within a reasonable amount of time of the last purchase
having been made.
The Committee has previously formed
the view that such a clause poses an unreasonable condition on street
traders, due to the vague language used. In previous cases, the Committee has
requested that sub clause (3) be deleted.
|
|
Agreed.
Clause 6.3(3) removed from draft.
(3) The conditions subject to which the
local government may approve an application for a trader’s permit
include that the permit holder is permitted to remain at a particular
location for as long as there is a customer making a purchase, but if there
is no customer making a purchase the permit holder must move on from that
location within a reasonable time of the last purchase having been made.
|
|
Clause 6.8 Conduct of stallholders and traders
Clause 6.8(1)(c) refers to the Trade Measurement
Administration Act 2006. This Act has been repealed and is now
covered by national legislation. It is suggested that the reference be
changed to refer to the National Measurements Act 1960 (Cth).
|
|
Agreed.
Remove:
(c) when selling goods by weight, carry and use for
that purpose, scales tested and certified in accordance with the provisions
of the Trade Measurement Act 2006.
Changed to:
(c) when selling goods by
weight, carry and use for that purpose, scales tested and certified in
accordance with the provisions of the National Measurements Act 1960
(Cth).
|
|
Modified penalties
The Department notes that the Shire
has established an unmodified penalty of $5000 and a modified penalty of $600
for breach of clauses 5.11, 5.13, 5.17 and 5.19.
Under section 9.18(3) of the Local Government Act 1995,
modified penalties cannot be higher than 10% of the unmodified penalty. It is
suggested that the penalties should be corrected to comply with the statutory
maximums.
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Noted.
Modified penalties adjusted to $500
for breach of clauses 5.11, 5.13, 5.17 and 5.19.
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Schedule 1
It is suggested that the Schedule titles should be bold,
centralised and not in block print. The heading should then be followed
by a bracketed reference to the clause in the local law that refers to the
schedule.
It is also suggested that an item column be inserted into
the Schedule, as this will make the
local law easier to amend in the future.
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Schedule titles are in a standard
format within the Shire of Esperance.
Reference to the clause has been
added:
PRESCRIBED OFFENCES
(CLAUSE 10.4)
Suggestion noted. Schedules are in a standard format
across all Shire of Esperance Local Laws and the preference is to maintain
this consistency.
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Minor edits
· The Shire should ensure that formatting and spacing
is consistent throughout the local law.
· Defined terms should be bolded and italicised with
no quotation marks.
· Titles of Acts, Regulations and other Legislation
should be italicised to reflect good drafting principles.
· Clause 1.2:
a. In
the definition of CEO, capitalise the first letters of
“Chief Executive Officer”.
b. In
the definition of local government, replace “[insert
name of local government]” with “Shire of
Esperance”.
c. In
the definition of vehicle:
§ delete
the word “and” after “similar device;”.
§ Label
the third and fourth paragraphs as (c) and (d), respectively.
d. In
the definition of verge, replace the full stop with a semicolon
and insert the word “and” after it.
· Clause 1.4:
a. Align
the clause title “Repeal” to the right to be consistent with the
other clause titles throughout the local law.
b. Remove
the space between “9 November 2001” and the semicolon.
c. In
subclause (1)(b), insert a full stop at the end of the subclause.
· Clause 2.7: Replace “town-site”
with “townsite” to be consistent with the defined term.
· Clause 2.8(1)(b)(v): insert a semicolon at the end of
the sentence.
· Clause 2.10:
a. In
paragraph (d), replace the full stop with a semicolon.
b. Insert
a designation “(e)” in front of the paragraph beginning with
“ensure that the verge” and redesignate the remaining paragraph
accordingly.
· Clause 3.1:
a. In
the definition of advertising sign, insert a semicolon at the
end of the paragraph.
b. In
the definition of garage sale sign, replace the semicolon with
a full stop.
· Clause 3.3(f): remove the capitalisation of the
first letter in “Any” and insert a full stop at the end of the
paragraph.
· Clause 6.1:
a. In
the definition of public place, replace the full stop with a
semicolon.
b. In
the definition of trading, insert a full stop at the end of
paragraph (c)(ii).
· Clause 6.5(3): insert a full stop at the end of
the subclause and redesignate the subclause as paragraph (d).
· Clause 6.6(1)(o): remove the capitalisation of the
first letter in “Any”.
· Clause 6.17(b): replace “whether the use of
the business is” with “whether the food business is a use”.
· Clause 7.2: insert a designation (1) before
“The local government may –” and renumber the rest of the
subclauses accordingly.
· Clause 7.3(j): remove the capitalisation of the
first letter in “Any”.
· Schedule 1:
a. 2.1(a)
– replace “10m” with “6m”.
b. 2.2(1)(f)
– the description for this offence and the description for 2.2(1)(g)
should be swapped around.
The Shire should ensure that all references and cross
references in the local law are accurate, particularly if any changes are
made as a result of these comments.
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· Formatting has be updated to be
consistent
· Acts and Regulations have been
italicised.
· Clause 1.2:
a) Change
made
b) Change
made
c) Change
made
d) Change
made
Clause 1.4:
a) Change
made
b) Change
made
c) Change
made
Clause 2.7: Change made
Clause 2.8(1)(b)(v): Change made
Clause 2.10:
a) Change
made
b) Change
made
Clause 3.1:
a) Change
made
b) Change
made
Clause 3.3(f): Changes made
Clause 6.1:
a) Change
made
b) Change
made
Clause 6.5(3): Change made
Clause 6.6(1)(o):Change made
Clause 6.17(b): Change made
Clause 7.2:Changes made
Clause 7.3(j):Change made
Schedule 1:
a. 2.1(a)
Change made
b. 2.2(1)(f)
Changes made
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The Shire of Esperance would like to acknowledge the
assistance and support of the Department of Local Government and Communities in
reviewing the points of this Local Law.
Consultation
Community Workshops
Esperance Chamber of Commerce and Industry
Department of Local Government and Communities
Councillors
Shire Officers
Financial Implications
The financial implications arising from this report are
limited to advertising costs in the Government Gazette and local newspaper.
Asset Management Implications
N/A
Statutory Implications
The statutory implications associated with this item are:
· Local Government Act 1995
· Road Traffic Code 2000
· Liquor Control Act 1988
· Land Administration Act 1997
· Planning and Development Act 2005
· Local Government
(Functions and General) Regulations 1996
· Interpretation Act 1984
Policy Implications
The policy implications arising from this report are the
direction provided to the Council Policies listed below:
ASS 008 – Road Verge Development
ASS 019 – Street Tree Policy
Strategic Implications
Strategic Community Plan 2012 - 2022
Civic Leadership
Strategy 4.2 Maintain a
clear, transparent and ethical decision making process
Strategy 4.3 Ensure open
and consistent communication between the Shire and the Community
Corporate Business Plan 2016/2017 – 2019/2020
Action 4.2.2 Review Shires suite of Local Laws
Environmental Considerations
Nil
Attachments
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a⇩.
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Activities in Thoroughfares and
Public Places and Trading Local Law
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Officer’s Recommendation
That Council
1. Endorse the draft Activities on
Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2016
and;
2. Requests the CEO undertake
all the required statutory advertising
Voting Requirement Absolute
Majority
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Item: 12.4.2
Information
Bulletin - November 2016
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Author/s
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Sarah Fitzgerald
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Administation Officer
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Authorisor/s
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Matthew Scott
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Chief Executive Officer
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File Ref: D17/631
Applicant
Internal
Strategic Implications
Strategic Community Plan 2012 - 2022
Civic Leadership
Ensure open and
consistent communication between the Shire and the community
A community who is aware
of Council decisions and activities
Attachments
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a⇩.
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Information Bulletin - November
2016
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b⇩.
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Register - Delegations Discharge -
Corporate Resources
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c⇩.
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Letter - Appreciation - End of Year
Donation - Nulsen Primary School
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d⇩.
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Letter - Appreciation - End of Year
Donation - Esperance Anglican Community School
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e⇩.
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Letter - Appreciation - End of Year
Donation - Esperance Senior High School
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f⇩.
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Letter - Appreciation - End of Year
Donation - Esperance Primary School
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g⇩.
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Letter - Appreciation - Support for
funding application
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h⇩.
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Letter - Congratulations - Edge of
the Bay Event Success
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i⇩.
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Letter - Congratulations -
Formation of Working Group
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j⇩.
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Minutes - GVROC CEO Group Meeting -
6 January 2017
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k⇨.
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Interplan Report - December 2016
- Under Separate Cover
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Officer’s Recommendation
That Council accepts the
Information Bulletin for January 2016 and;
1. Register - Delegations Discharge - Corporate
Resources
2. Letter -
Appreciation - End of Year Donation - Nulsen Primary School
3. Letter -
Appreciation - End of Year Donation - Esperance Anglican Community School
4. Letter -
Appreciation - End of Year Donation - Esperance Senior High School
5. Letter -
Appreciation - End of Year Donation - Esperance Primary School
6. Letter -
Appreciation - Support for funding application
7. Letter -
Congratulations - Edge of the Bay Event Success
8. Letter -
Congratualations - Formation of Working Group
9. Minutes - GVROC
CEO Group Meeting - 6 January 2017
10. Interplan Report -
December 2016
Voting Requirement Simple Majority
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13. Reports Of Committees
Item: 13.1
Minutes
of Committees
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Author/s
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Sarah Fitzgerald
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Administation Officer
|
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Authorisor/s
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Matthew Scott
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Chief Executive Officer
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File Ref: D17/751
Attachments
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a⇩.
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Jetty Replacement Working Group - 9
December 2016
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b⇩.
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Jetty Replacement Working Group -
19 December 2016
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Officer’s Recommendation
That Council receive the following
committee minutes:
1. Jetty
Replacement Working Group – 9 December 2016
2. Jetty
Replacement Working Group – 19 December 2016
Voting Requirement Simple
Majority
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Item: 13.2
Minutes
of the Annual Electors Meeting
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Author/s
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Sarah Fitzgerald
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Administation Officer
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Authorisor/s
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Matthew Scott
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Chief Executive Officer
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File Ref: D17/779
Attachments
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a⇩.
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Minutes - Annual Electors Meeting -
15 December 2016
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Officer’s Recommendation
That Council receive the Minutes of
the Annual Electors Meeting held on the 15 December 2016.
Voting Requirement Simple
Majority
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14. Motions of which Notice has been Given
15. MEMBERS QUESTIONS WITH OR WITHOUT
NOTICE
16. URGENT BUSINESS APPROVED BY DECISION
17. MATTERS BEHIND CLOSED DOORS
Officer’s Comment:
It
is recommended that the meeting is behind closed doors for the following item,
in accordance with section 5.23(2) of the Local Government Act 1995.
Item: 17.1
Outstanding
Rates - Debtor Write Off
Confidential
Item
This report is considered
confidential in accordance with the Local Government Act 1995, as it relates to
the personal affairs of any person (Section 5.23(2)(b)).
18. PUBLIC QUESTION TIME
19. CLOSURE
