cabonne Council colour 200 wide

 

 

 

 

 

 

 

 

12 November 2011

 

 

NOTICE OF ORDINARY COUNCIL MEETING

 

Your attendance is respectfully requested at the Ordinary Meeting of Cabonne Council convened for Monday 19th December, 2011 commencing at 9.30am, at the Cabonne Shire Office, Bank Street, Molong to consider the undermentioned business.

 

Yours faithfully,

 

 

a GM signature

GLP Fleming

GENERAL MANAGER

 

ORDER OF BUSINESS

 

1)       Open Ordinary Meeting

2)       Consideration of Mayoral Minute

3)       Consideration of General Manager’s Report

4)       Matters of Urgency

5)       Resolve into Committee of the Whole

a)    Consideration of Closed Items

Adoption of Closed Committee of the Whole Report

 

 

 

 

 

 

 

 

 

 

 


 

ATTENDEES – DECEMBER 2011 COUNCIL MEETING

 

 

10.20am

Youth of the Month presentations – Amy McAlister, Jemima McCalman and Lauren Hutchinson

12.00pm

Julie Middleton – Presentation to Council re Fitness Walk in Canowindra

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

http://cc2k/intranet/images/cabonne%20Council%20colour.JPG

 

 

 

 

COUNCIL’S MISSION

“To be a progressive and innovative Council which maintains relevance through local governance to its community and diverse rural area by facilitating the provision of services to satisfy identified current and future needs.”

 

 
 

 

 


         

 

 

 

 

 

 

 

 

 

COUNCIL’S VISION

Cabonne Council is committed to providing sustainable local government to our rural communities through consultation and sound financial management which will ensure equitable resource allocation.

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


GENERAL MANAGER’S REPORT ON MATTERS FOR DETERMINATION SUBMITTED TO THE Ordinary Council Meeting TO BE HELD ON Monday 19 December, 2011

Page 1

TABLE OF CONTENTS

 

 

 

ITEM 1      APPLICATIONS FOR LEAVE OF ABSENCE.................................. 5

ITEM 2      DECLARATIONS OF INTEREST....................................................... 5

ITEM 3      DECLARATIONS OF POLITICAL DONATIONS ............................ 6

ITEM 4      MAYORAL MINUTE - APPOINTMENTS........................................... 6

ITEM 5      Grouping of report adoption.............................................. 7

ITEM 6      CONFIRMATION OF THE MINUTES................................................. 7

ITEM 7      BUSINESS PAPER ITEMS FOR NOTING........................................ 8

ITEM 8      ECONOMIC DEVELOPMENT & TOURISM COMMITTEE MEETING 9

ITEM 9      COMMUNITY SERVICES COMMITTEE MEETING........................ 9

ITEM 10    ENVIRONMENTAL SERVICES AND SUSTAINABILITY COMMITTEE MEETING................................................................................................................. 10

ITEM 11    WORKS COMMITTEE MEETING..................................................... 10

ITEM 12    INTEREST RATES FOR ADVANCES............................................. 11

ITEM 13    Abolishing Ward Boundaries.............................................. 12

ITEM 14    DEPARTMENT OF PREMIER & CABINET  REGIONAL COORDINATION NETWORK - RENEWAL AND DEVELOPMENT........................... 13

ITEM 15    Rural Fire zone service agreement- amendment.. 14

ITEM 16    SHIRES ASSOCIATION - 2012 E-DIVISION CONFERENCE..... 15

ITEM 17    DESTINATION 2036 DRAFT ACTION PLAN................................ 16

ITEM 18    ONE ASSOCIATION DRAFT CONSTITUTION............................. 17

ITEM 19    ENHANCEMENT OF MOUNT CANOBOLAS STATE CONSERVATION AREA 19

ITEM 20    EVENTS ASSISTANCE PROGRAM................................................ 21

ITEM 21    WALUWIN MOLONG HEALTHONE HEALTH SERVICES ADVISORY COMMITTEE......................................................................................... 23

ITEM 22    March Rural Fire Service Brigade Station............... 24

ITEM 23    Borenore Rural Fire Service Brigade station ...... 25

ITEM 24    Notice of Motion - Proposed Boundary Adjustment 26

ITEM 25    Local Government Remuneration Tribunal.............. 27

ITEM 26    Code of Meeting Practice Policy..................................... 29

ITEM 27    Review of Council Occupational Health and Safety Policies to comply with the Work Health and Safety Act 2011. 31

ITEM 28    ORANGE CITY COUNCIL - EUCHAREENA ROAD UPGRADE 32

ITEM 29    52ND FLOODPLAIN MANAGEMENT ASSOCIATION CONFERENCE      34

ITEM 30    MOLONG FLOODPLAIN RISK MANAGEMENT STUDY............ 36

ITEM 31    MACQUARIE PIPELINE - OFFICE OF WATER RURAL LANDHOLDER SUB-COMMITTEE......................................................................................... 37

ITEM 32    EFFLUENT DUMP STATION - CANOWINDRA............................ 39

ITEM 33    Modification of DA 2011/110 Lot 2 DP 533199, 321 Mandagery Road, Mandagery...................................................................................... 41

ITEM 34    MODIFICATION APPLICATION DA 2008/153 - 22 LOT SUBDIVISION, LOTS 13 TO 22 DP 1131133, FOREST ROAD, SPRING HILL................... 54

ITEM 35    RELOCATING THE GRIDER STRUCTURE OF THE OLD GASOMETER TO RAILWAY LAND AT MOLONG........................................................ 61

ITEM 36    DEVELOPMENT APPLICATION 2012/65 - SUBDIVISION (TWO LOT BOUNDARY ADJUSTMENT) - LOT 108 DP 876024 AND LOT 2 DP 884022, 523 GRIFFIN ROAD, BORENORE............................................................................ 62

ITEM 37    Report on request for donation.................................... 76

ITEM 38    Questions For Next Meeting................................................ 77

Confidential Items

 

Clause 240(4) of the Local Government (General) Regulation 2005 requires Council to refer any business to be considered when the meeting is closed to the public in the Ordinary Business Paper prepared for the same meeting.  Council will discuss the following items under the terms of the Local Government Act 1993 Section 10A(2), as follows:

 

ITEM 1      CARRYING OF COUNCIL INTO CLOSED COMMITTEE OF THE WHOLE MEETING

Procedural

ITEM 2      OUTSTANDING PUBLIC LIABILITY INSURANCE CLAIMS

(g) advice concerning litigation, or advice as comprises a discussion of this matter, that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege

ITEM 3      QUARRY REVIEW COMMITTEE MEETING MINUTES

Procedural

ITEM 4      Sale of Land for Overdue Rates - Assessment 5238.01000.2

(b) matters in relation to the personal hardship of a resident or ratepayer

ITEM 5      CADIA EAST - VOLUNTARY PLANNING AGREEMENT

(d) (ii) commercial information of a confidential nature that would, if disclosed, confer a commercial advantage on a competitor of the council

ITEM 6      Deed of Release

(f) details of systems and/or arrangements that have been implemented to protect council, councillors, staff and Council property

ITEM 7      CLERGATE LAND ADJACENT

(a) personnel matters concerning particular individuals (other than councillors)

ITEM 8      Molong Health Services

(g) advice concerning litigation, or advice as comprises a discussion of this matter, that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege   

 

ANNEXURE ITEMS

 

ANNEXURE 6.1    November 21 2011 Ordinary Council Minutes.pdf         78

ANNEXURE 8.1    December Economic Development and Tourism Committee Minutes.............................................................................. 105

ANNEXURE 9.1    December Community Services Committee Mintues   108

ANNEXURE 10.1  December Environmental and Sustainability Committee Minutes.............................................................................. 112

ANNEXURE 11.1  December Works Committee Minutes............. 117

ANNEXURE 21.1  healthone-advisory committee-terms of reference       122

ANNEXURE 23.1  Borenore Rural Fire Service Proposed Layout 125

ANNEXURE 26.1  Draft Code of Meeting Practice Policy....... 126

ANNEXURE 27.1  Work Health and Safety Policy........................ 183

ANNEXURE 27.2  Health and Safety Committee-Formation Policy         188

ANNEXURE 27.3  Management of Workplace Risk Policy DRAFT    191

ANNEXURE 27.4  Volunteer's Policy.................................................... 194

ANNEXURE 27.5  Work Health and Safety and Workers Compensation Policy................................................................................. 201

ANNEXURE 28.1  Euchareena road report - December 2010. 207

ANNEXURE 33.1  Applicant's Submission for Modification... 212

ANNEXURE 34.1  Draft Conditions of Consent............................. 222

ANNEXURE 34.2  Modified Plans.............................................................. 233

ANNEXURE 36.1  Site Maps .......................................................................... 235 

 


 

 

ITEM 1 - APPLICATIONS FOR LEAVE OF ABSENCE

REPORT IN BRIEF

 

Reason For Report

To allow tendering of apologies for Councillors not present.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

GOVERNANCE - Procedural

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 217882

 

General Manager's REPORT

 

A call for apologies is to be made.

 

 

Recommendation

 

THAT any apologies tendered be accepted and the necessary leave of absence be granted.

 

 

 

ITEM 2 - DECLARATIONS OF INTEREST

REPORT IN BRIEF

 

Reason For Report

To allow an opportunity for Councillors to declare an interest in any items to be determined at this meeting.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

GOVERNANCE - Procedural

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 217932

 

General Manager's REPORT

 

A call for declarations of interest.

 

 

Recommendation

 

THAT the Declarations of Interest be noted.

 

 

 

 

ITEM 3 - DECLARATIONS OF POLITICAL DONATIONS

REPORT IN BRIEF

 

Reason For Report

To allow an opportunity for Councillors to declare any political donations received.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

GOVERNANCE - Procedural

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 217948

 

General Manager's REPORT

 

A call for Political Donations.

 

 

Recommendation

 

THAT any Political Donations be noted.

 

 

 

ITEM 4 - MAYORAL MINUTE - APPOINTMENTS

REPORT IN BRIEF

 

Reason For Report

To allow noting of the Mayoral appointments plus other Councillors' activities Reports.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Governance

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 217961

 

General Manager's REPORT

 

A call for the Mayoral appointments and attendances as well as other Councillors’ activities reports to be tabled/read out.

 

 

Recommendation

 

THAT the information contained in the Mayoral Minute be noted.

 

 

 

ITEM 5 - Grouping of report adoption

REPORT IN BRIEF

 

Reason For Report

Enabling procedural reports to be adopted.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Governance - Procedural

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 289416

 

Director of Finance and Corporate Services' REPORT

 

Items 6 to 15 are considered to be of a procedural nature and it is proposed that they be moved and seconded as a group. Should any Councillor wish to amend or debate any of these items they should do so at this stage with the remainder of the items being moved and seconded.

 

 

Recommendation

 

THAT:

 

1.      Councillors call any items they wish to further consider

 

2.      That items 6 to 15 be moved and seconded.

 

 

 

 

ITEM 6 - CONFIRMATION OF THE MINUTES

REPORT IN BRIEF

 

Reason For Report

Adoption of Minutes

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

GOVERNANCE - Procedural

Annexures

1.  November 21 2011 Ordinary Council Minutes.pdf    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 217972

 

General Manager's REPORT

 

The following minutes are attached for endorsement.

1.   Minutes of the Ordinary Council meeting held on Monday 21st November 2011

 

 

Recommendation

 

THAT the minutes of the Ordinary Meeting held on Monday 21st November 2011 be adopted.

 

 

 

ITEM 7 - BUSINESS PAPER ITEMS FOR NOTING

REPORT IN BRIEF

 

Reason For Report

Provides an opportunity for Councillors to call items for noting for discussion and recommends remainder to be noted.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Administration

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 288648

 

General Manager's REPORT

 

In the second part of Council’s Business Paper are items included for Council’s information.

 

In accordance with Council’s format for its Business Paper, Councillors wishing to discuss any item are requested to call that item.

 

 

Recommendation

 

THAT:

1.  Councillors call any items they wish to further consider.

2.  The balance of the items be noted.

 

 

 

 

ITEM 8 - ECONOMIC DEVELOPMENT & TOURISM COMMITTEE MEETING

REPORT IN BRIEF

 

Reason For Report

Adoption of Economic Development & Tourism Committee Recommendations

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Economic Development

Annexures

1.  December Economic Development and Tourism Committee Minutes    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 289418

 

Economic Development Manager's REPORT

 

Attached is the report of the Economic Development and Tourism Committee Meeting of Cabonne Council held on 5 December 2011 for Council’s adoption.

 

 

Recommendation

 

THAT the report and recommendations of the Economic Development and Tourism Committee Meeting of Cabonne Council held on 5 December 2011 be adopted.

 

 

 

ITEM 9 - COMMUNITY SERVICES COMMITTEE MEETING

REPORT IN BRIEF

 

Reason For Report

Adoption of Community Services Committee Recommendations

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Community Services

Annexures

1.  December Community Services Committee Mintues    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 289419

 

Community Services Manager's REPORT

 

Attached is the report of the Community Services Committee Meeting of Cabonne Council held on 5 December 2011 for Council’s adoption.

 

 

 

Recommendation

 

THAT the report and recommendations of the Community Services Committee Meeting of Cabonne Council held on 5 December 2011 be adopted.

 

 

 

ITEM 10 - ENVIRONMENTAL SERVICES AND SUSTAINABILITY COMMITTEE MEETING

REPORT IN BRIEF

 

Reason For Report

Adoption of Environmental Services Committee recommendations and noting of motions carried

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Environmental Services

Annexure

1.  December Environmental and Sustainability Committee Minutes    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 289420

 

 Director of Environmental Services' REPORT

 

Attached is the report of the Environmental Services and Sustainability Committee Meeting of Cabonne Council held on 5 December 2011.

 

 

Recommendation

 

THAT the report and recommendations of the Environmental Services and Sustainability Committee Meeting of Cabonne Council held on 5 December 2011 be adopted and carried Motions be noted.

 

 

 

 

ITEM 11 - WORKS COMMITTEE MEETING

REPORT IN BRIEF

 

Reason For Report

Adoption of the Works Committee Meeting Recommendations

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Engineering and Technical Services

Annexures

1.  December Works Committee Minutes    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 289422

 

Director of Engineering and Technical Services' REPORT

Attached herein is the report and recommendations of the Works Committee meeting of Cabonne Council held on 5 December, 2011.

 

Recommendation

 

THAT the report and recommendations of the Works Committee held on 5 December, 2011 of Cabonne Council be adopted.

 

 

 

 

ITEM 12 - INTEREST RATES FOR ADVANCES

REPORT IN BRIEF

 

Reason For Report

To determine the method for calculating interest rates on Advances

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Finance

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291830

 

Finance Manager's REPORT

 

Council, from time to time, provides advances to individuals and groups within the Council area.  Interest is charged on these advances.

 

Previously, the interest rate used was the Housing Loan rate published in the Financial Review, plus one percent.  However, this rate is no longer published.

 

Council undertakes the bulk of its day to day banking through the Commonwealth Bank.  It is therefore proposed that the base rate to be used should now be the ten year fixed rate published on the Commonwealth Bank website.  The rate to be charged on Council advances would then be the ten year fixed rate plus one percent.

 

 

Recommendation

 

THAT the interest rate to be charged on Advances be calculated by adding one percent to the Commonwealth Bank ten year fixed home loan rate.

 

 

 

 

ITEM 13 - Abolishing Ward Boundaries

REPORT IN BRIEF

 

Reason For Report

Report on advice recieved from the Minister

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Governance

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292008

 

Director of Finance and Corporate Services' REPORT

 

At its Extraordinary Meeting held 7 November 2011 Council resolved:

 

“THAT Council apply to the Minister for Local Government for approval to abolish wards in the Cabonne Council area.”

 

Council has received advice from the Minister for Local Government, Hon Don Page, that Council’s application has been approved with the Instrument of Approval to be published in the NSW Government Gazette of 9th December 2011.

 

The abolition of wards will take effect on and from the date appointed for the next ordinary election of Council in September 2012.

 

It will be important that Council promotes the abolition of ward boundaries within its communities, particularly in the lead up to the 2012 elections.

 

 

Recommendation

 

THAT:

 

1.    Council write to the NSW Electoral Commission and issue a media release advising of the Ministerial approval to abolish ward boundaries.

 

2.    Councillors promote the issue within their communities.

 

 

 

ITEM 14 - DEPARTMENT OF PREMIER & CABINET  REGIONAL COORDINATION NETWORK - RENEWAL AND DEVELOPMENT

REPORT IN BRIEF

 

Reason For Report

Advising Council of changes being made to the Department of Premier & Cabinet (DCP) Regional Coordination Network.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Government Relations

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292021

 

General Manager's REPORT

 

Councillors may be aware that the Deputy Premier of NSW chairs a Rural & Regional NSW cabinet sub-committee, whose members comprise other ministers with key regional responsibilities.

 

The Director General, NSW Department of Premier & Cabinet, recently commissioned an independent review of the DPC Regional Coordination Program to provide advice on what kind of regional coordination network would best serve the new Government’s agenda.  The review found that while current arrangements were highly valued in the regions, there were opportunities for refocus and improvement.  As a result, significant changes will be made to refresh and renew the DPC regional coordination network.

 

The key changes will be:

 

·     Returning the regional coordination network much closer to the core workings of the NSW Government, so that regional coordinators can inform and assist regional agency staff to deliver Government priorities and to escalate issues that require core DPC attention for their resolution.

 

·     Improving the connection to (and support for) Regional Ministers, helping them to advocate for the interests of their region in Cabinet, based on effective strategic networks and being a visible public ‘face’ of the NSW government in their region.

 

·     Adopting a clear focus on formal and informal coordination, with project or program delivery only being undertaken by Regional Coordination staff in exception circumstances.  In the new model, projects and programs will generally be undertaken by the clusters and their line agencies.

 

Further advice regarding Regional Coordination staff and changes to management process will be provided when they are complete.

 

In the meantime, the DPC is encouraging Council to continue to collaborate with Regional Coordinators.

 

 

 

Recommendation

 

THAT:

 

1.      Council continue to forward relevant concerns and issues to the DPC Regional Coordinator.

 

2.      Request CENTROC to invite the DPC Regional Coordinator to address the next CENTROC meeting.

 

3.      Further advice be reported to Council as it comes to hand.

 

 

 

 

ITEM 15 - Rural Fire zone service agreement- amendment

REPORT IN BRIEF

 

Reason For Report

Seeking Council's approval to Sign an amendment to the Rural Fire zone service agreement

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Emergency Services

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292592

 

Director of Finance and Corporate Services' REPORT

 

The New South Wales Rural Fire Service have successfully negotiated with the New South Wales Treasury Managed Fund, to provide insurance cover for the RFS Red Fleet Program.

 

This will mean that responsibility for indemnity becomes that of the Treasury Managed Fund and Council will no longer be required to take out insurance cover for Rural Fire Service vehicles such as tankers.

 

Council’s current Rural Fire Zone service agreement with the Canobolas Rural Fire Service requires Council to be responsible for compulsory third party and comprehensive insurance in relation to Rural Fire Service brigade equipment known as the “Red Fleet”.

 

The Rural Fire Service have now written to Council seeking to amend the agreement to require that the Rural Fire Service, through the Treasury Managed Fund provide indemnity for these vehicles.

 

This will provide a saving to Council in that the insurance cover will now be funded from the Bush Fire Fighting Fund.

 

The Rural Fire Service have written to Council requesting an exchange of letters to enable the Rural Fire Service Zone agreement to be amended to reflect this change.

 

 

Recommendation

 

THAT Council authorise signing of the amendment to the Rural Fire Zone agreement, to provide for coverage of the “Red Fleet” to be through the New South Wales Treasury Managed Fund. 

 

 

 

 

ITEM 16 - SHIRES ASSOCIATION - 2012 E-DIVISION CONFERENCE

REPORT IN BRIEF

 

Reason For Report

To provide advice of the 2012 E-Division Conference to be held in Forbes on Friday 17 February 2012 and invite submission of Motions.

Policy Implications

Yes - depending upon Motions presented to E Division and carried at the Annual Conference of the Shires Association.

Budget Implications

Yes - depending upon Motions presented to E Division and carried at the Annual Conference of the Shires Association.

Area of Responsibility

Government Relations

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291553

 

General Manager's REPORT

 

Council has received advice from the Secretary of the E Division of the Shires Association of NSW that the 2012 Conference will be held in Forbes on 17 February 2012.

 

At present Council has not received information regarding the agenda however, as always, time will be devoted to the consideration of Motions to be submitted to the Annual Conference of the Shires Association which will be held in Sydney in June.

 

Councillors are asked to give consideration to any Motions that may be appropriate to submit to the E Division Conference.  Issues that Council may wish to consider include:

 

·    RFS Funding;

·    Road Funding;

·    Country Towns Water & Sewage Scheme;

·    True impacts of Carbon Tax on local government;

·    Commencement of investigations for 2016 local government elections.

 

 

Recommendation

 

THAT:

 

1.  Council representatives attend the E Division Conference to be held in Forbes on Friday 17 February 2012.

2.  Council give consideration to the formulation of any appropriate Motion/s to be submitted to the E Division Conference.

 

 

 

 

ITEM 17 - DESTINATION 2036 DRAFT ACTION PLAN

REPORT IN BRIEF

 

Reason For Report

Advising that the draft Destination 2036 Action Plan has been released by the Implementation Steering Committee (ISC) for stakeholder consultation.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Government Relations

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291798

 

General Manager's REPORT

 

Councillors have been emailed the DLG Circular 11-40 “Release of the draft Destination 2036 Action Plan” and draft Action Plan.   The DLG are encouraging consideration of this draft and are requesting that it be widely promoted within local communities.

 

The Destination 2036 program is one of the largest ever undertaken in NSW.  The involvement of all Councils at the summit earlier this year in Dubbo and the promotion of the plan since then has been quite extensive.  The Minister and the Division of Local Government are committed to the project and have identified a range of issues which has been on the local government agenda for many years.  The opportunity provided to local government should not be allowed to be lost.  Cabonne Council, through its WBC Alliance partners, has been active in reform for a number of years and it is pleasing that the reform model adopted by the WBC is one that has been identified in the Action Plan.  There are still many other issues to be addressed, such as constitutional recognition of local government, funding of local government, roles and responsibilities, review of the local government act, inter-governmental agreements, etc that need to be not only discussed but addressed and actioned.

 

While comments can be made on any matters relating to the draft plan, the ISC is particularly interested in receiving feedback on the following:

 

1.   What do you like about the draft Action Plan?

2.   In what ways could the Action Plan be improved?

3.   Are there other key activities you believe should be included under any of the initiatives?

4.   Do you have any suggestions regarding the proposed process for advancing the Action Plan?

5.   Are you aware of any activities (eg research) currently underway that could directly contribute to the achievement of any of the initiatives or key activities?

 

The draft Action Plan will be open for consultation until Wednesday 15 February 2012.

 

 

 

Recommendation

 

THAT Council:

 

1.   Conduct a workshop on February Committee Day to enable a response to be formulated to the Destination 2036 Action Plan.

 

2.   Issue a media release promoting the Draft Action Plan.

 

 

 

 

 

ITEM 18 - ONE ASSOCIATION DRAFT CONSTITUTION

REPORT IN BRIEF

 

Reason For Report

Seeking Council's input into the One Association Draft Constitution.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Government Relations

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292034

 

General Manager's REPORT

 

Councillors have received numerous reports and held workshops in relation to the One Association proposal and would be aware that the Local Government Association of NSW and the Shires Association of NSW have agreed in principle to form One Association to represent Local Government in NSW based on the 27 principles agreed to by the two Associations.

 

The LGSA have now provided the draft constitution for One Association and councillors were emailed this document on 22 November for consideration and input.  The LGSA are seeking general comments, or any further issues or concerns, from councils regarding the draft constitution by 16 December, however an extension has been requested and was granted due to the timing of Council’s December meeting.

 

It should be noted that Council voted against the draft constitution on the basis of it not having Divisions, however most Councils in NSW are supportive of it.

 

Following feedback from Councils, the two Associations will resolve any differences which may still exist and then proceed to a final draft of the rules for a new Association.  The Associations have advised that the new constitution does not have to be adopted by a Conference (Annual or Special) of each Association as the approval of the amalgamation and the new constitution occurs through a secret ballot under the auspices of Fair Work Australia and the Australian Electoral Commission.  Each Association is yet to decide whether a Conference is required.

 

 

 

Recommendation

 

THAT Council consider the draft constitution for One Association and advise if it wishes to provide comment to the LGSA.

 

 

 

 

ITEM 19 - ENHANCEMENT OF MOUNT CANOBOLAS STATE CONSERVATION AREA

REPORT IN BRIEF

 

Reason For Report

To update Council on activites undertaken.

Policy Implications

Nil

Budget Implications

Yes - to be considered and dependant on external funding secured.

Area of Responsibility

Economic Development

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292118

 

Economic Development Manager's REPORT

 

Cabonne Council Economic Development staff have been working in collaboration with Orange City Council and NSW National Parks and Wildlife Service to maximise economic and community opportunities in and around the Mount Canobolas State Conservation Area.  This collaboration has been underway since late 2010.

 

Mount Canobolas is an important landscape icon within the Central West region.  It is the highest point in a straight line between the Blue Mountains and Perth at 1,397 meters.  The State Conservation Area boasts over 300 plant species (including 2 rare species), 60 fauna species, 1,672 hectares of natural bushland, camping grounds, bush walks and waterfalls.  It also contains a number of aboriginal sites including occupation sites, an axe grinding groove and a rock carving.

 

At present the summit of Mount Canobolas is uninviting and difficult to access all year round.  Minimal to no tourism infrastructure is in place.  The current condition does not assist Cabonne and Orange Councils to attract visitation to this natural environment and build on the economy of each local government area and the greater Central West region.  Photographs below of the summit and access road illustrate the need for improvement to Mount Canobolas State Conservation Area.

 

Access Road                                                    Eroding footpath at Summit

     

 

 

 

Mount Canobolas Summit Viewing and Parking Area

          

 

As advised by Council’s Director of Engineering and Technical Services, the road to the summit has recently been reclassified to “local” from “regional”.  Council has not been provided with an explanation of this change, given the national significance of this State Conservation Area.  Council does not have the upgrade and sealing of this road in its short to medium works program.

 

NSW National Parks and Wildlife Service have a Management Plan for the State Conservation Area.  Using the outcomes of this Plan, regular meetings have been held with all 3 stakeholders. 

 

From this, Cabonne Council has submitted 3 funding applications and or expression of interest with:

·    TQUAL Strategic Tourism Investment Grant

·    FORTO Regional Tourism Product Development Program

·    RDA Fund – Round 2

Funding is being sought to assist with the cost of redeveloping the summit, improving access road surface and safety and signage. These applications are being assessed.

 

The enhancement of Mount Canobolas has recently been in the local media with multiple stories of interest.

 

Cabonne Council staff will continue to progress this important community and tourism infrastructure project with the identified stakeholders.  It will also include identifying relevant funding opportunities.

 

 

 

Recommendation

 

THAT Council:

1.  Lobby for the upgrading of the access roads to Mount Canobolas and redevelopment of the summit.

2.  Seek support of local Federal Member, Hon John Cobb, and the local State Member, Hon Andrew Gee, for Council’s application.

3.  Write to Orange City Council and NSW National Parks and Wildlife Service thanking them for their cooperation and support.

 

 

 

 

 

ITEM 20 - EVENTS ASSISTANCE PROGRAM

REPORT IN BRIEF

 

Reason For Report

For Council to consider two applications for funding under the Events Assistance Program.

Policy Implications

Nil

Budget Implications

Yes - funded through the Events Assistance Program

Area of Responsibility

Ecomonic Development

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292498

 

Economic Development Manager's REPORT

 

Council has received 2 funding applications under the Events Assistance Program.

 

These requests are normally reviewed at the ED & T Committee meeting with a recommendation made to Council for endorsement.  Both of these applications were received by Council after the December ED & T Committee meeting was held.  As there is no January meeting and with both events occurring early in 2012, the submissions are being presented to Council December Ordinary meeting for consideration.

 

Application 1

Organisation

Australian National Field Days

Event

Central West Garden & Lifestyle Expo 2012

Event Dates

Saturday 24th & Sunday 25th March 2012

Requested Amount

$5,000.00

To be funded for

Advertising

Description of the Event

Is a 2 day family event held at the Australian National Field Day site at Borenore.  The Expo enables exhibitors the opportunity to showcase garden and lifestyle products to the general public.  It also includes an educational component with seminars being held on a range of topics over the 2 days.

 

Application 2

Organisation

Canowindra Challenge Incorporated

Event

Canowindra Balloon Challenge 2012

Event Dates

From 14th to 21st April 2012

Requested Amount

$6,000.00 and inkind support from Council

To be funded for

Advertising, event management (ie: traffic management assistance, DA fee, cleaning of toilet blocks, skip bin hire, etc) and staffing assistance to be located at the Age of Fishes Museum.

Description of the Event

Following the success of 2011, Canowindra Balloon Challenge is an 8 day competitive ballooning event with additional community events, including Balloon Glow Spectacular, Family friendly evening food and wine market, photographic competition and rugby match.

 

Assessment

 

Both applications meet the criteria for Events Assistance Program Funding.  In the past they have both received funding under this program. 

 

 

 

Recommendation

 

THAT Council fund the following projects under the Events Assistance Program and that all proponents provide a full report on outcomes following the event:

 

1.  In line with previous years, that the Australian National Field Day Committee receive $1500.00 in EAP funding, subject to the receipt of an acquittal form for the 2011 event.

2.  Canowindra Challenge Incorporated receive up to $6,000.00 in EAP funding.  This funding is to be firstly allocated to all inkind expenses associated with the event and staff wages of a trainee to provide assistance from the Age of Fishes Museum.  Any funding remaining of the $6,000.00 is to be allocated to event advertising.

 

 

 

 

ITEM 21 - WALUWIN MOLONG HEALTHONE HEALTH SERVICES ADVISORY COMMITTEE

REPORT IN BRIEF

 

Reason For Report

Providing draft Terms of Reference and seeking nomination for Council delegate to the Committee.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Community Services

Annexures

1.  healthone-advisory committee-terms of reference    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 290664

 

Director of Finance and Corporate Services' REPORT

 

As a key partner with Molong HealthOne, Council has been invited to become a Committee Member of the Waluwin Molong HealthOne Advisory Committee.

 

The key role of the Advisory Committee is to set the strategic direction for primary and community health and health related services for the community of Molong and the surrounding towns.  The Advisory Committee will oversee the HealthOne Molong Service to ensure the safe, appropriate and strategic conduct of the service occurs.  Objectives of the Committee will include:

 

·    Promote integration & coordination of care to achieve improved health for clients.

 

·    Develop and maintain synergistic relationships.

 

·    Support strategies that improve models of care using evidence based principles/practices.

 

·    Support the development of strategies to reduce avoidable hospital admissions.

 

·    Support strategies that improve the coordination of those with chronic conditions utilising strategies including early intervention, risk factor identification & self management programs.

 

·    Ensure the delivery of client centred care.

 

·    Ensure that health programs/strategies address health issues as identified in the HealthOne Molong Service Plan.

 

·    Ensure that the focus of health care includes the National Health Priority areas and their risk factors.

 

Attached are the draft Terms of Reference for the Committee.

 

 

Recommendation

 

THAT Council nominate a representative to the Waluwin Molong HealthOne Health Services Advisory Committee.

 

 

 

 

ITEM 22 - March Rural Fire Service Brigade Station

REPORT IN BRIEF

 

Reason For Report

Seeking bridging funding for March Rural Fire Service Brigade station

Policy Implications

Nil

Budget Implications

Bridging loan of $90,000

Area of Responsibility

Emergency Services

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292631

 

Director of Finance and Corporate Services' REPORT

 

Council received correspondence from the Canobolas Zone Rural Fire Service, indicating that no funding was provided for construction of Rural Fire Brigade stations in the 2011/12 financial year.

 

Construction of the March Brigade station has an estimated construction cost of $255,000. Available funding in the Rural Fire fighting fund from previous years was $165,000, leaving a short fall of $90,000 in the current year.

 

The Rural Fire Service is seeking Council support to underwrite $90,000 to enable completion of the station in the current year, with a reimbursement to be made in the 2012/13 funding allocation. Similar arrangements have been made in  the past when the Regional Office has agreed to repay the funds from the future year’s allocation.

 

 

 

Recommendation

 

THAT Council agree to fund the short falling funding of $90,000 for construction of the March brigade station subject to a letter of commitment being received from the Regional Manager of the Rural Fire Service Region West for $90,000 to be made available from the Rural Fire Fighting Fund, future allocations, with funding to be provided from the Bushfire Infrastructure Reserve.

 

 

 

 

ITEM 23 - Borenore Rural Fire Service Brigade station

REPORT IN BRIEF

 

Reason For Report

Advising on meeting held in relation to the Borenore Rural Fire Service station location

Policy Implications

Nil

Budget Implications

To be funded from future Council budgets

Area of Responsibility

Emergency Services

Annexures

1.  Borenore Rural Fire Service Proposed Layout    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292636

 

Director of Finance and Corporate Services' REPORT

 

Council’s November meeting resolved

“THAT:

1.     This item be deferred until the December Council meeting allow the matter to be raised at an upcoming with the Rural Fire Service

2.     The letter for the ARTC requested by Clr Duffy be provided to all Councillors in confidence as requested by the ARTC”

 

On the  28th November 2011 a meeting was held with representatives from the Rural Fire Service, Borenore Bush Fire Brigade and Council.

 

The Meeting discussed possible sites for the future Borenore Rural Fire Service Brigade station, with the preferred site being identified as near the intersection of Borenore Road and Escort Way.

 

Some concerns were discussed in relation to the preferred site, in particular this being the positioning of the overhead power lines that cross the site and any possible cost implications that this may involve. At the meeting it was resolved that Councillor Dowling talk to Council’s Planning and Engineering staff, about the suitability of the Borenore Road- Escort way site, particularly the positioning of power lines across the site.

 

Enquires made by Council’s Engineering Services staff, indicated that the location of the proposed station on the site would require either relocation of the power pole or underground electricity to the Telstra hut in the vicinity of the proposed location, cost indicated were in the vicinity of $7,000 for a new power pole or $4,000 for undergrounding the electricity.

 

Attached is a copy of the preferred site and in order to proceed with the proposal it will be necessary for Council to resolve to sub-divide the area indicated on the attached plan and to classify the land as being operational and authorising the a fixing of the Council seal to the necessary documentation.

 

 

Recommendation

 

THAT Council:

1.  As a matter of urgency pursue the acquisition of the block of land situated at the Borenore railway crossing (being at the corner of the Escort Way and Borenore Roads) as the stated preferred site by the Borenore Rural Fire Service Brigade for the construction of their shed to be used for operational and training purposes.

2.  Classify the land as operational

3.  Authorise the a fixing of the Council seal to the necessary documents for the proposed sub-division

 

 

 

 

ITEM 24 - Notice of Motion - Proposed Boundary Adjustment

REPORT IN BRIEF

 

Reason For Report

Notice in Motion

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Governance

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292642

 

Director of Finance and Corporate Services' REPORT

 

A Notice of Motion has been received, duly signed by Clr Duffy which reads:

 

That Council hold a workshop on Monday the 6th February 2012 at 9.30am to address and discuss the Boundary Adjustment proposed between Orange City Council and Cabonne Council

 

The Scope to include but not limited to:

1.   The process of the submission and defining Community of Interest

2.   Sustainability of Cabonne.

3.   The number of ratepayers and rate notices within the proposed Boundary adjusted area.

4.   The number of rate categories and the number of rate notices within each category in the proposed Boundary adjusted area.

5.   The amount of General Rates collected in the 2011/12 financial year within the proposed Boundary adjusted area, including farmland, business, rural residential, residential and mining.

6.   The road classifications within the proposed Boundary adjusted area and their distance, sealed and unsealed.

7.   The size of the proposed Boundary adjusted area (sq kilometres)

8.   The amount of Waste Management charge and Waste Management upgrade fee collection in the proposed Boundary adjusted area in the 2011/12.

9.   Details of all Council assets in the proposed Boundary adjustment area.

 

Clr Kevin Duffy

 

In order for the Notice of Motion to be considered on the day it will be need to be moved and seconded.


         

 

 

Recommendation

 

THAT the Notice of Motion be considered.

 

 

 

 

ITEM 25 - Local Government Remuneration Tribunal

REPORT IN BRIEF

 

Reason For Report

To advise Council that the Local Government Remuneration Tribunal (the Tribunal) has commenced its review for the 2012 determination.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Councillors

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 290354

 

Administration Manager's REPORT

 

The Tribunal is required to make an annual determination on the fees payable to Councillors and Mayors.  The purpose of this report is to advise that the Tribunal has commenced its review for the 2012 determination.

 

Fees

The Tribunal will be undertaking a review of the minimum and maximum fee levels for each Category.  Please note that the Local Government Act (LG Act) has been amended and, in accordance with section 242A, the Tribunal in determining the minimum and maximum of fee levels for each category is now required to give effect to declared government policy on remuneration for public sector staff.

 

Categorisation

In accordance with the LG Act, and as foreshadowed in the 2011 Report and

Determination, the Tribunal will undertake a review of the categories as part of the 2012 review.  Section 239 of the LG Act requires the Tribunal to determine the categories of councils and mayoral offices at least once every 3 years.

 

The Tribunal last undertook a fundamental review of the categories of councils and mayors in 2009.  Following that review the Tribunal determined that there be no change to the groupings of councils.  The Tribunal did however introduce descriptive titles to more accurately reflect the nature of differences between the different groups.

 

The Tribunal is now seeking comment on any significant changes that have occurred in the activities of Councils since that review - in particular the impact any such changes have had on the duties and responsibilities of elected representatives and any other matters considered relevant.

 

Submissions should address the following matters.

 

1.     Whether the existing categories should be reduced or expanded and if so on what basis.

 

2.     Whether the current categorisation is appropriate for your council.  If not, how you consider it should be categorised and on what basis you consider this recategorisation should be granted.

 

3.     Any significant changes in the role and responsibilities of councillors and mayors since 2009.

 

4.     Other matters you may wish the Tribunal to consider as part of this review.

 

In any response to the Tribunal noting any changes that have taken place since the last review in 2009 (point 3 above), you should specifically relate those changes to the categorisation criteria set out in section 240 of the LG Act.

 

The Tribunal would welcome the opportunity to interview those Mayors and Councillors who wish to address the Tribunal with regard to categorisation matters.

 

Interviews will be held in Sydney and, depending on the number of submissions received from rural councils it may make arrangements to attend meetings in regional centres.

 

Submissions should be received by no later than 1 February 2012.

 

Please note that your submission may be made available to any member of the public under the Government Information (Public Access) Act 2009.

 

 

Recommendation

 

THAT Council:

1.   Determine if it wishes to make a submission to the Local Government Remuneration and; if so,

2.   Advise the General Manager of any matter that it wishes to include in such a submission to the Tribunal prior to the closing date of 1 February 2012.

 

 

 

ITEM 26 - Code of Meeting Practice Policy

REPORT IN BRIEF

 

Reason For Report

Advising of rewrite and additions to code of Meeting Practice for adoption

Policy Implications

Yes - will update Council's current Code of Meeting Practice policy

Budget Implications

Nil

Area of Responsibility

Policy

Annexures

1.  Draft Code of Meeting Practice Policy    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291857

 

Administration Manager's REPORT

 

Background

 

The current Code of Meeting Practice policy was rewritten based on DLG Practice Note 16 and adopted after advertising at Council’s February 2010 meeting.

 

Some amendments have been made since, including:

 

·         Provision for Acknowledgement of Country to be recited on some occasions

·         Requirement for Mayoral Minute reports (other than a report re appointments) to be distributed to all Councillors prior to further consideration

·         Additional clarification added re adoption of “Questions for Next Meeting”

·         Added definition of “Matter of Urgency”

·         Removed reference to delegated authority for the Mayor, (or Deputy Mayor in the Mayor’s absence) to call an Extraordinary Meeting

·         Added provision (after 6 month trial) that the deadline for all tabled documents be 5pm on Friday preceding the monthly meetings, and these late documents be emailed to all Councillors and relevant staff by this time

·         Updated with a reference to the prescribed Form to be used to request the calling of an Extraordinary meeting

Despite being based on the DLG Practice Note (in effect a model template) Council has received legal advice that it could be argued that the ‘narrative’ parts of the Code of Meeting do not actually form part of the Code and therefore if not abided with it could be difficult to action a breach.

Accordingly the Code of Meeting has been rewritten to remove the narrative and is now clearer that any non compliance is a breach of the Code.

 

Noted non-compliance

Whilst reviewing the Code it was noted that Council is currently technically not complying with its Code in relation to the calling of a division.

The current practice of a single councillor requesting a division is contrary to the Regulation. 

Councillors should be voting by a show of hands.  On the basis of the hand count by the Chair a resolution is deemed to be ‘Carried’ or “Lost”.

A division (other than that required for planning matters under Section 375A (3) of the Local Government Act) can be requested by two (2) councillors who must stand to do so, who believe that the Chair has miscounted.  The Chair will then ask for a further show of hands and call out the names which will be recorded in the minutes.

When considered in the context that the Regulation requires that when a  councillor abstains from voting it is meant to be counted as a vote against the motion - under Council’s current process of verbal voting many decisions could have been recorded as Lost.  A show of hands is required to make it clear which way councillors have voted (or abstained).

If a councillor wishes to have their name recorded in the minutes as voting against the motion that is permissible on request to the Chair.

Update

Additionally, the Code has been updated to keep up with technology, a section has been added prohibiting the use of mobile phones and internet use during a Council or Committee meeting.  A provision has been included that on request the Chair may allow a councillor to keep their phone on in silent mode under exceptional circumstances.

 

 

Recommendation

 

THAT the updated Code of Meeting Practice Policy be adopted.

 

 

 

 

ITEM 27 - Review of Council Occupational Health and Safety Policies to comply with the Work Health and Safety Act 2011.

REPORT IN BRIEF

 

Reason For Report

Council has five (5) Policies that need upgrading to reflect the changes brought about by the Work Health and Safety Act 2011 that commences on 1st January 2012. The policies have been amended to ensure compliance.

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Risk Management

Annexures

1.  Work Health and Safety Policy

2.  Health and Safety Committee-Formation Policy

3.  Management of Workplace Risk Policy DRAFT

4.  Volunteer's Policy

5.  Work Health and Safety and Workers Compensation Policy    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291887

 

Risk Management Officer's REPORT

 

Council has in place five (5) policies that either are based on the Occupational Health and Safety Act 2001 or cite the OHS Act in the Policy.

 

These policies are;

1.   Occupational Health and Safety Policy

2.   Occupational Health and Safety Committee-Formation of Policy

3.   OHS Safety Rehabilitation and Worker’s Compenastion Policy

4.   Work Place Safety Audits and Inspections Policy

5.   Volunteers Policy

 

Each of these Policies have been reviewed and amended, included necessary title changes where required, so that each Policy reflects the requirements of the Work Health and Safety Act 2011. This Act commences on 1st January 2011.

 

By having the Policies approved and in place prior to the commencement of the new Act, Council will be well on the way towards achieving basic compliance. This will be further enhanced when the Work Health and Safety Regulations are enacted and appropriate procedures are put in place.

 

 

Recommendation

 

THAT:

1.  The Work Health and Safety Policy be adopted.

2.  The Health and Safety Committee – Formation Policy be adopted.

3.  The Work Health and Safety and Workers Compensation Policy be adopted.

4.  The Management of Workplace Risk Policy be adopted.

5.  The Volunteers Policy be adopted.

 

 

 

 

ITEM 28 - ORANGE CITY COUNCIL - EUCHAREENA ROAD UPGRADE

REPORT IN BRIEF

 

Reason For Report

Advise Council of the proposed scope of works and apportionment of costs

Policy Implications

Nil

Budget Implications

Council's apportionment for the up-grade

Area of Responsibility

Roads and Bridges

Annexures

1.  Euchareena road report - December 2010    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 290773

 

Director of Engineering and Technical Services' REPORT

Orange City Council have indicated intent to begin up-grade works on the section of Euchareena Road from the 50 Km/h speed limit sign to the intersection with Back Saleyard Road intersection in early to mid 2012.

Council would be aware Orange City Council’s approval for the Resource Recovery Centre on Euchareena Road contained a number of conditions relating to Euchareena road. This report considers the Minister’s approval and the conditions referred to in Schedule 6, Transport, Upgrade Works 2. Which states;

Prior  to the commencement of operations on the Euchareena Road site, the Proponent shall ensure that the recommended measures marked as high and medium priority in the report titled Euchareena Road Resource recovery Centre – Road User & Operational Assessment, prepared by Winning Traffic Solutions and dated November 2009, are implemented to the satisfaction of Council. (Council refers to Cabonne Council)

The section of Euchareena Road that rates as high and medium priority in the Winning Traffic Solutions road safety audit 2009 and the subject of this report is from the 50/100 Km/h signs to the intersection of Back Saleyards Road, a length of 1.8 Kms. 

The relevant part of the Minister’s conditions for apportionment of cost is given in “Road Maintenance Contributions 3. And 4. This section states:

During operations, the Proponent shall pay Council a quarterly contribution of 4 cents per kilometre per tonne of material trucked either to or from the Euchareena road site along 5.6 kilometre section of Euchareena Road. The contribution amount shall be adjusted every 3 years from the date of this approval to account for the effects of inflation (Consumer Price Index).

With the approval of the Director-General, the Proponent may reduce its road maintenance contributions for the project (see above), to ensure there is a fair apportionment between the Proponent and Council for the upgrade works referred to above.  

The “fair” apportionment refers to the condition of the road and residual value indicating council is not entitled to gain a new asset for old without consideration of apportionment of cost.

The recent condition rating carried as part of the road asset revaluation process found this section of road to have a pavement condition of P5 or very poor and has a sealed width of 5.5m.

Council may also be aware the section of road from the 50/100 Km/h sign to the entrance to the proposed east Molong subdivision (a distance of 900m) is also subject to Section 94 contributions for the proposed development.

Council considered a report to the 20 December meeting outlining the Minister’s conditions of approval and responsibilities relating the works on the Euchareena Road. A copy of that report in included in the annexure to this report.

Consideration of apportionment of Cost – Orange City Council and Cabonne Council – Euchareena Road.

Discussions held between OCC and Cabonne Council staff to date have agreed on the following general principles;

1.   Agreement that the Winning report identifying the subject section of road as a HIGH priority due to inadequate road seal width is appropriate.

2.   The existing pavement is in poor condition.

3.   The Section 94 contributions for the 900m section of Euchareena Road should be included in the apportionment calculations.

4.   The improvements to the bend in Euchareena Road at the intersection with Back Saleyard road in not in the scope of works and is a separate item for OCC to address.

5.   The preferred formation and seal is an 8m wide formation with an 8m seal.

6.   The existing seal is 5.5m wide.

7.   The nominal pavement depth (for estimating purpose) is 300mm lime stabilised.

Note: the nominal pavement for rehabilitation works on Council’s local road is 250mm.

8.   Based on the pavement material quantities and area, the apportionment of cost for the reconstruction and widening of 1.8 kms of Euchareena road is 73% Orange City Council and 27% Cabonne Council.

9.   The estimated cost per km is $260,000 per km (based on OCC estimates).

10. The section 94 contributions received for this section of Euchareena Road to be distributed to Orange City Council and Cabonne Council for reimbursement for the capital works on the same apportionment of 73% and 27% with the upper limit of reimbursement being the actual cost of upgrade works.

 

Recommendation

THAT Council;

1.   Agrees in principle with the consideration of general principles, 1 to 10 as noted in the report.

2.   Approve the proposed upgrade works based on the apportionment of cost 73% to Orange City Council and 27% Cabonne Council.

3.   Fund the estimated cost for Cabonne Council of $126,000 from Financial Assistance Grants (FAG).

 

 

 

ITEM 29 - 52ND FLOODPLAIN MANAGEMENT ASSOCIATION CONFERENCE

REPORT IN BRIEF

 

Reason For Report

To nominate a representative to attend a 1 day conference session in Batemans Bay on the 24 February 2011

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Flood Mitigation

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 290839

 

Director of Engineering and Technical Services' REPORT

 

The 52nd Floodplain Management Association Conference will be taking place in Batemans Bay on the 21-24th of February 2012. 

The Floodplain Management Association (formerly the Floodplain Management Authorities) was established to promote sound and responsible floodplain management, and to make representations on behalf of Local Government at State and Federal levels. The FMA is accepted by government agencies as representing the interests of NSW floodplain communities and those authorities responsible for managing the floodplains to reduce future flood losses. The FMA holds its Annual General Meeting at the conference (an alternative workshop is offered for non-members), and Quarterly Meetings are held each May, August and November.

 

This is a four day conference and covers a wide range of issues relating to floodplain risk management.

 

The sessions on day two of the conference have particular interest and connection to Cabonne and include;

 

Ø Flood recovery

o Rebuilding

o Insurance

o Economic impact

Ø New Technologies

Ø Interaction of flood insurance, mapping and mitigation.

 

 

Recommendation

 

THAT Council approve the Director of Engineering and Technical Services and a councillor (to be nominated) attendance of the second day sessions of the Floodplain Management Association Conference.

 

 

 

 

ITEM 30 - MOLONG FLOODPLAIN RISK MANAGEMENT STUDY

REPORT IN BRIEF

 

Reason For Report

Advise Council of funding to extend the study and to windup the existing consultants contract

Policy Implications

Nil

Budget Implications

Council has recieved $40,000 from Office of Heritage and Environment for the extension of the study, council's contribution to the project is included in the current budget.

Area of Responsibility

Flood Mitigation

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291209

 

Director of Engineering and Technical Services' REPORT

Consultants URS have submitted the amended Draft Floodplain Risk Management Study for Molong. Council may recall a report to the September Council meeting advising the draft was to be reviewed following a meeting of the Molong Floodplain Risk Management Committee, the review has now been completed. A copy of the comments from the Committee meeting is included in the annexure from councils reference.

It is now proposed to exhibit the draft document for public comment. It is recommended that the period for exhibition and comment be extended to allow for the Christmas/New Year holiday period.

There were a number of issues raised at the meeting that require an extension of the study. The main areas of concern requiring further investigation includes:

1.   Investigation of the existing waterway under the railway bridge and options to improve the waterway.

2.   Investigation of the extension of the stormwater drainage in Molong including design, and

3.   A more detailed investigation and benefits of providing floodgates to outlets to Molong Creek.

While the Draft study covers these topics in a general form, the detailed investigation required to address the issues raised by the Committee does not fall within the brief for the current study. In discussing this matter with URS and the Office of Environment and Heritage it was mutually agreed that the additional investigation works would be scoped as a separate study.

It was also mutually agreed that as the level of detail required in the additional investigation would require considerable “on-site” time, URS would not be expressing an interest in the extension of the study. OEH  will assist council staff in preparing the brief for the additional works. It is noted that funds have already been approved for the additional works.

URS have also asked that, as there is to be an extension of the study in which they will not be involved to “wind-up” the current study. OEH have indicated support for this to happen and would include any finalisation of the study to be included in the new brief.

The original Molong Floodplain Risk Management Study was funded by Council and OEH with an upper limit of $108,025. This was increased in 2010 to extend the overland flow modelling, council approved an increase of $30,000 for this work. To date the total expenditure is $110,308. A final invoice is understood to be raised by the end of this calendar year. 

Council would also be aware OEH have approved funding of $40,000 in the 2012/13 budget for the extension of the Molong Floodplain Study to cover those areas noted previously in the report.

 

Recommendation

THAT Council;

1.   Exhibit the Draft Review of Molong Floodplain Risk Management Study for a period of 9 weeks commencing 22 December 2011 to 23 February 2012.

2.   Approve the extension of the study to include;

i)          Investigation of waterway under the railway bridge and options to improve waterway.

ii)         Investigate extension of the stormwater drainage

iii)        Investigate provision of floodgates on outlets to Molong Creek.

3.   Conclude the contract with URS on completion of the Draft document.

 

 

 

ITEM 31 - MACQUARIE PIPELINE - OFFICE OF WATER RURAL LANDHOLDER SUB-COMMITTEE

REPORT IN BRIEF

 

Reason For Report

Council to nominate a delegate for the committee

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Water Supply

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291874

 

Director of Engineering and Technical Services' REPORT

The NSW Office of Water has established a Landholder Sub-committee to provide a consultative process for feedback to the Taskforce on various matters relating to the project.

The membership will consist of;

Taskforce Executive Officer (Chair)

·    Representative of NSW Office of Water (as required)

·    Representative of Orange City Council

·    Representative of Cabonne Council

·    Rural representative of Orange Pipeline Concerned Citizens Committee

·    Rural representative of Orange Community Pipeline Liaison Committee

·    Representative with interest in Rural Environmental issues.

The terms of reference;

1.   To provide advice to the Taskforce through the Executive Officer on matters associated with the planning, design, construction and monitoring of the pipeline as they affect rural landholders including but not limited to:

a.   General weed control

b.   Animal Health matters

c.   Farm operations

d.   Environmental issues including feral animals and soil erosion

e.   Protocol for property entry as developed by Orange City Council

 

2.   Coordinate a survey to establish existing weed infestations in the area of the proposed pipeline route

3.   Liaise with the Orange Pipeline Community Liaison Committee and Orange Pipeline Concerned Citizens Committee as required on matters that affect rural Landholders.

4.   Act as a point of liaison between the Taskforce and Rural Landholders.

5.   Any other matters as requested by the Taskforce.

 

 

Recommendation

 

THAT Council nominate a delegate to sit on the NSW Office of Water Rural Landholder Sub-Committee.

 

 

 

 

ITEM 32 - EFFLUENT DUMP STATION - CANOWINDRA

REPORT IN BRIEF

 

Reason For Report

Seek Council's approval for the installation of a "Dump Ezy" in Canowindra

Policy Implications

Nil

Budget Implications

Cost of installation not included in the current budget.
Subject to approval to be funded from Cabonne Sewerage Fund

Area of Responsibility

Sewerage

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 291951

 

Director of Engineering and Technical Services' REPORT

The Works Committee considered a report for the installation of an effluent dump station in Canowindra. The Committee requested further investigation to find a suitable site.

The matter is brought to the full Council meeting due to the urgency in approving the location to enable the facility to be functional for the balloon festival to be held in Canowindra March 2012.

Council staff have investigated a number of sites, including;

Ø Wenz Lane (old sale yards near the STP site).

Ø Adjacent to Morris Park and Rec Grounds

Ø Caravan Park environs.

The Campervan and Motorhome Club of Australia guidelines for the installation of these facilities are:

·    Should be installed away from high traffic areas

·    Side access roads are ideal

·    Must be accessible for all RV’s

·    Drive through (if not have a turning circle of 35m min.)

·    Be on a level plane.

·    Must have a tap within the immediate area

·    Public dump points should be free of any charges and open during normal business hours.

The configuration of Motorhome and Campervans range from 19.5m (big Rigs) to 8m, 12.5 m (C Class) Motorhomes.

In assessing suitable sites there are a number of issues/risks that need to be considered, they include;

1.   Adjoining land use, ie nuisance to neighbours

2.   Risk of vandalism

3.   Risk of illegal dumping

4.   Connection to existing infrastructure

5.   Access into and out of the site to the main thoroughfare

6.   Signposting and visibility

In assessing suitable sites in Canowindra the remoteness of Wenz Lane was considered a significant risk for illegal dumping and would also be difficult for travellers to locate/access.

The Morris Park, Recreation Grounds provided good access, however it was considered would have a negative impact on the amenity of the area as this was an area where travellers often stopped to enjoy the open park area and gardens.

Installing a dump station in the caravan park would address most of the issues referred to above. However works would be required to provide a suitable area to accommodate the motor homes and larger vans using the facility.

ENTRANCE TO THE CANOWINDRA CARAVAN PARK

A site investigation of the caravan park found the preferred location to be near the entrance to the park and adjacent to the Mens shed. Sites within the park area were found to be too restrictive in area and would also have a negative impact on the amenity of existing van and camping sites.

To proved the necessary vehicle manoeuvring and access areas widening of the roadway would be required. It would also be necessary to provide a verge and screening to separate the access to the caravan park to the dump site.

 A preliminary estimate for the road widening and associated works is $29,000 AND INCLUDES;

Ø Earthworks (widening of the entrance to the south)

Ø New pavement (450m2)

Ø Kerbing (30m)

Ø Drainage

Note: costs based on gravitation to existing mains.

 

 

 

 

Recommendation

 

THAT Council approve the installation of a dump station in the caravan park and that funds for the associated works to come from the Sewer Fund.

 

 

 

 

ITEM 33 - Modification of DA 2011/110 Lot 2 DP 533199, 321 Mandagery Road, Mandagery.

REPORT IN BRIEF

 

Reason For Report

Rquest for modification of D.A 2011/110

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Development

Annexures

1.  Applicant's Submission for Modification    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292083

 

Senior Town Planner's REPORT

 

ADVISORY NOTES

Record of voting

In accordance with s375A of the Local Government Act 1993, a division is required to be called when a motion for a planning decision is put at a meeting of Council or a Council Committee.  A division under s375A of the Act is required when determining this planning application.

 

Political Disclosures

In accordance with s147(4) of the Environmental Planning and Assessment Act 1979, a person making a planning application to Council is required to disclose political donations and gifts made within 2 years prior to the submission of  the application and concluding when the application is determined.

 

In accordance with s147(5) of the Environmental Planning and Assessment Act 1979, a person making a public submission to Council in relation to a planning application made to Council is required to disclose political donations and gifts made within 2 years prior to the submission being made and concluding when the application is determined.

 

Political donations and gifts (if any) to be disclosed include:

·    All reportable political donations made to any local councillor or Council,

·    All gifts made to any local councillor or employee of the Council.

 

Nil planning application disclosures have been received. 

 

Nil public submission disclosures have been received. 

 

 

INTRODUCTION

 

The following report was considered by the Environmental Services Committee at its meeting held on 5 December 2011.  The committee resolved to refer the application to Council for determination.

 

 

 

 

 

The committee was addressed by the applicant’s wife Mrs S Mackay, who spoke in support of the modification application. The applicant is seeking the deletion of three conditions of development consent relating to the proposed 2 lot subdivision of a 375ha rural holding at Mandagery.

 

The subdivision seeks to divide the existing allotment into two lots – Lot 114 having an area of 124.1ha being vacant grazing land, and Lot 113 having an area of 250.9ha containing agricultural land and two existing dwellings.

 

Proposed Lot 114 does not have access to a formed road. It does have access to an unformed lane. Access to the allotment is not adequate in its current arrangement.

 

The developer is seeking to have waived standard conditions of consent requiring a s94 contribution towards bushfire equipment provision and a s94 contribution to road upgrading. Both contributions are generated by the creation of proposed lot 114. An offer of a reduced development contribution has been made.

 

The developer also seeks deletion of the standard access requirement that places the onus on the subdivider to provide an all-weather access road to service the newly created allotment. The subdivider argues that the 125ha allotment is to be acquired by a neighbour for the purpose of agriculture. However once the lot is legally created council has no control over its ownership and the lot can legally be sold to another party. Council has an obligation when considering a subdivision proposal to ensure safe and adequate vehicular access is provided to each allotment created.

 

Council staff has previously suggested to the proponents that the consolidation of the 125ha area of land with the adjoining neighbours holding would not attract the development contributions or the road access requirement. This suggestion has not been accommodated by the parties.

 

Council’s Environmental and Sustainability Committee has requested investigation of alternate options to address the issues. The following comments are provided to assist council in its consideration of the modification application:

 

1)   Council must consider the provision of adequate and safe access to allotments created in accordance with the LEP. The conditions of consent have been applied in accordance with the LEP, DCP and Contributions Plans.

 

2)   Council may consider a request to vary the contribution plans – however it should be noted that the contributions are applied consistently to all rural subdivisions. The contribution plans have been in force since 1993.

 

 

 

 

3)   The s94 development contributions plans have been capped by the State Government to a maximum of $20,000 per allotment where a dwelling is permissible. The subdivision has gained a benefit of this decision with a $4,000 discount to the calculated contribution rate.

 

4)   Contributions apply generally at the stage of subdivision. Conditions of consent should not be deferred and imposed upon a later occupier of the land. The committee has however raised the idea of a s88b restriction as to user being placed upon Lot 114 to prohibit the use of the land for any purpose other than agriculture. While this addresses the potential for the future development of the land for a dwelling it does not address the issue of adequate vehicular access to the lot.

 

 

5)   Council cannot require proposed lot 114 to be held in conjunction with the neighbouring land, as the latter does not form part of the development application.

 

6)   Council’s options are to require the retention of the three standard conditions of consent, to vary the development contributions applicable to this subdivision, to waive the full payment of the development contribution conditions and to accept the offer of $5,000, to consider the request to vary all three conditions.

 

 

The following report outlines the subdivision and the modification request in further detail. The recommendation is to retain the standard conditions of consent as applied to the application. A copy of the proponents modification request and accompanying site photos are also attached for the information of the council.

 

SUMMARY

 

The following report provides an assessment of the development application submitted for modification on Lot 2 DP 533199, Mandagery Road, Mandagery.

The application has been referred to the Environmental Services and Sustainability Council for determination as the proposed modification seeks a variation in the amount of S94 Contributions required to be paid and the deletion of Condition 8 (Provision of Private Access) of the Notice of Determination.

 

It is recommended that the application be refused.

 

Applicant: James Willis Mackay c/o: Kenny Spring Solicitors

Owner:      James Willis Mackay

Proposal:  Modification of DA 2011/110

Location:   Lot 2 DP 533199, 321 Mandagery Road, Mandagery

Zone:         1(a) General Rural   

 

THE PROPOSAL

The proposal is for the two (2) lot subdivision of land on Lot 2, DP 533199, 321 Mandagery Road, Mandagery for agricultural purposes.

 

The proposed modification seeks to review Conditions 6, 7 and delete Condition 8 of the Notice of Determination.

 

Condition 6 requires:

 

          BUSH FIRE CONTRIBUTIONS

 

Objective

 

To make an equitable contribution towards improvement of Bush Fire Services and Amenities for the specified Brigade.  The contribution has been levied in accordance with Council’s Bushfire Services Contributions Plan, February, 1993.

A copy of the Plan is available for inspection at Council’s Department of Environmental Services, Bank Street, Molong during business hours.

 

Performance

 

Prior to release of the Linen Plan the applicant is required to make a contribution of $938.30 towards the improvement of bushfire services and amenities for the Mandagery Bushfire Brigade (Income No: 15080013).

 

The applicant after consideration of Clause 2.7.8 of DCP No.5 – General Rural Zones states that “.. there is no nexus demonstrated or disclosed within the development application that would warrant a contribution being levied upon the applicant for bushfire services in accordance with Section 94 of the Act”.

 

Condition 7 requires:

 

          ROAD IMPROVEMENT CONTRIBUTION (SUBDIVISION)

 

Objective

 

To make equitable contribution to address the impacts of development on Council roads.  The contribution has been levied to make improvements to the stated road in accordance with Council’s Road Contributions Plan dated April 2007, (General Rural Zone).

 

Performance

 

The applicant is required to make a road improvement contribution of $5337.26 towards the improvement to Reedy Creek Road (Income Number 15085126), a road improvement contribution of $7243.45 towards the improvement to Mandagery Road (Income Number 15085127) and a road improvement contribution of $6480.99 towards the improvement to Buronga Road (Income Number 15085130).

In the submitted documentation for the modification the applicant disputes the nexus that would warrant a contribution being levied for roads.

 

Condition 8 requires:

 

           PROVISION OF PRIVATE ACCESS

 

Objective

 

To ensure that safe and practical access is provided to the subject land.

 

Performance

 

Access must be provided to proposed lot 114 in accordance with Councils’ Provision of Private Access Specification (attached) that is current at the time of application. The existing access to proposed Lot 113 ( “Willow Farm”) satisfies Councils current specifications.

 

An Access Construction Certificate must be obtained prior to commencement of construction of any access or accesses to the property from the adjoining road.

 

A joint inspection with the Principal Certifying Authority is to be held prior to commencing construction of the access.  Please telephone Council’s Development Engineer on 6392 3271 to arrange a suitable date and time for the inspection.

 

A Compliance Certificate for the access must be submitted to Council before a Final Subdivision Certificate can be issued.

 

The applicant states that to comply with Condition 8 and in particular comply with Council’s provision of private access specification is “…neither necessary or appropriate”. The applicant further states in the original Statement of Environmental Effects “…that the owners of the abutting parcels of land are likely to use their property as the means of accessing the new proposed lot. Even on this remaining scenario, its only remaining utility would be as thoroughfare for the owners passing from one allotment to the proposed lot”.

 

In summary the modification submission states “…that the financial contributions identified in clauses 6 and 7 of the Notice of Determination of Development cannot be sustained and ought to be removed. The applicant further submits that clause 8 in requiring provision of private access in accordance with Council’s specifications cannot be sustained and should be removed as a condition of development consent”.

 

The Applicant wishes to offer a contribution of $5000, on the basis that the remainder of the S94 contributions are waived, and the requirements for private access specifications are removed from the conditions of consent. The sum of $5000 roughly equates to 77% of the initial contribution levied for the improvements to Buronga Road.

 

THE SITE

The subject site is located in the county of Ashburnham and the parish of Terarra. The site is situated on the southern side of Mandagery Road approximately 20 km west of Manildra.  The site has a total area of 375 hectares and is irregular in shape.  The site is gently undulating with the land being already cleared or partly cleared. The area is characterised by agricultural land used for copping and grazing. The site is Zoned 1(a) General Rural under the provisions of the Cabonne Local Environmental Plan 1991. 

 

Development Site – Lot 2 DP 533199

 

BACKGROUND

The subject lot (Lot 2, DP 533199) was created by subdivision 1968/14 and registered 7/3/1969 with the Land Titles Office. The subject lot has not been subsequently subdivided. No other applications for development are noted.

A Development Application was initially lodged for a two (2) lot subdivision in March 2011. The development was identified as Integrated Development and was subsequently referred to the NSW Rural Fire Service for assessment. In addition the proposal was neighbour notified for a period of 14 days with no submissions being received. Internal referrals were undertaken by Health & Building and Development Engineering. The DA was approved and consent issued on 16 May 2011.

 

Correspondence was received from Kenny Spring Solicitors in July 2011 requesting details as to why the S94 Contributions imposed in Conditions 6 and 7 have been imposed and how they were calculated. Council responded by detailing how and why S94 contributions were applied and the reason for requiring the condition for the provision of private access.

 

Further correspondence was received in September 2011 requesting a separate review of the determination pursuant to Section 82A of the Environmental Planning and Assessment Act. In particular the request sought to waive S94 Contributions for roads and bushfire services (Conditions 6 and 7) in addition to deleting the requirement for access provisions (Condition 8). Council responded to the request by advising that under Section 82A of the Environmental Planning and Assessment Act, 1979 Council was unable to undertake such a review as the development was deemed to be Integrated Development. Advice was given to submit a modification application.

 

On 11 November 2011 Council received a modification application (subject application) seeking a review of Conditions 6, 7, and 8 of the Notice of Determination.

 

MATTERS FOR CONSIDERATION

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

 

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

 

Cabonne Local Environmental Plan 1991 (Amended)

The subject land is zoned 1(a) General Rural under the provisions of the Cabonne Local Environmental Plan (LEP) 1991. The two (2) lot subdivision on land zoned 1(a) General Rural is considered to be permissible with consent from Council under the provisions of Clause 9 of the Cabonne LEP 1991. The proposed modification will not have any adverse impacts, and does not affect the previous site assessment.

 

Objectives of the 1(a) zone

The objective of the zone is “to promote the proper management and utilisation of resources”.

 

The proposal is for the subdivision of agricultural land only. The proposal does not include any application for dwellings however, proposed Lot 114 is excess of the 100 hectare minimum and therefore has the ability for a dwelling at any time subject to Council consent. The proposal does not include any change in the existing or potential use of the land.

 

The proposed modification is not considered to be inconsistent with the provisions of the LEP or the objectives of the 1(a) zone.

 

Clause 10- General considerations for development within rural zones

The subdivision of the subject land will not have an adverse impact upon the subject land or adjoining land. The proposal will not adversely impact on the agricultural use of either proposed lot, its mineral or timber reserves.

 

Clause 12- Subdivision for the purposes of agriculture in Zones 1(a) and 7(c)

The subject site is zoned 1(a) General Rural and the proposal complies with the requirements of the clause for subdivision. The proposed modification does not impact upon any of the requirements of this clause.

 

Clause 18-Dwelling houses in Zones 1(a) and 7(c):

Proposed Lot 113 (Willow Farm) has an area of 250.9 hectares and has two (2) existing dwellings on the site. No dwelling entitlement is permissible for this lot as the site is not vacant land.

 

Proposed Lot 114 has an area of 124.1 hectares and is agricultural land. No dwellings currently exist on the proposed lot. This clause however, does allow for the erection of a dwelling if the land has an area greater than 100 hectares. This proposal does not seek this dwelling entitlement. It should be noted that a separate Development Application for a dwelling would be required to be submitted to Council and assessed.

 

The proposed modification does not seek to change any of the details of the proposed subdivision layout. As such, the proposed modification is consistent with the previous site assessment.

 

Clause 23- Bushfire Hazard:

The subject site includes a portion of the lot that is identified as being subject to bushfire hazard. Existing Lot 2 has an area of 376.2 hectares with an approximate area of bushfire prone land being 4182m². This equates to approximately 11% of the existing allotment being identified as bushfire prone land. As such, the proposal was deemed to be Integrated Development and was referred to the RFS for additional assessment. The proposed modification does not change any of the proposed lot layout or details. As such, the proposed modification was not required to be referred to the RFS.

 

Clause 24 – Access:

Access to the existing site is currently gained via an access point off Mandagery Road. Access to proposed Lot 113 (“Willow Farm”) will remain via Mandagery Road.  Access to proposed Lot 114 will be via Buronga Road. Both Mandagery Road and Buronga Road are classified as ‘local’ roads under the control of Cabonne Council.

 

The proposed modification seeks to delete the requirement for private access specifications from the Notice of Determination of Development based on the adjoining owner purchasing the proposed southern lot of the subdivision. Development Engineering has been consulted in regards to the proposed modification and states that Proposed Lot 113 will require a legal and physical access to be created and constructed as per DCP 5. The recommendation is for Condition 8 to remain as a condition of consent.

 

REGIONAL ENVIRONMENTAL PLANS

 

There are no Regional Environmental Plans that apply to the subject land.

 

 

STATE ENVIRONMENTAL PLANNING POLICIES

 

State Environmental Planning Policy No.44 (Koala Habitat Protection) applies to the land. Cabonne Council is identified within the SEPP 44 schedule as having koala habitat.  The applicant has not addressed the SEPP; however, the subject land is generally cleared and the proposed development will not impact upon any existing vegetation.  There are no known sightings of koalas in the locality, or sources of koala habitat.

 

State Environmental Planning Policy (Rural Lands) 2008 also applies to the land and the proposed development.

Clause 7:

The proposal is not considered to be unsympathetic with the principles listed in part 2 of the SEPP.

 

Clause 8:

The proposal is consistent with the Rural Planning Principles listed in Part 3 of the SEPP.

 

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

There are no draft environmental plans that relate to the subject land or proposed development.

 

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

 

Development Control Plan No 5 – General Rural Zones applies to this development. The proposal is not inconsistent with the provisions of the DCP.

 

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

The proposal does not contravene the relevant provisions of the regulations.

 

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

 

Context and Setting:

The subject land is located within an established rural/agricultural area. The proposal is considered to be compatible with the surrounding land uses (agricultural) within the locality. The proposed modification will have no adverse impacts on the surrounding area, its character or amenity. The proposal does not affect the previous site assessment.

 

Access, Transport and Traffic:

Access to the “Willow Farm” (proposed Lot 113) site is currently gained via an existing driveway located off Mandagery Road.  Proposed Lot 113 (Willow Farm) will continue to use access of Mandagery Road.  

 

The original application noted that proposed Lot 114 will be via Buronga Road. As such a condition of consent (Condition 8) was included to address access provision and construction. In Development Engineering’s assessment of the proposed modification, Condition 8 should remain to provide a legal and physical access to the lot. 

 

Public Domain:

The proposal is not considered to have a detrimental impact on the public domain.

 

Utilities:

No additional requirements are needed for the provision of essential services.

 

Heritage:

The subject land is not listed as a heritage item in Schedule 1 of the Cabonne LEP 1991, and is not identified as an area of heritage conservation.

 

Other land resources:

The proposal is not considered to have any impact on other land resources.

 

Water:

The proposed modification does not impact on the sites’ previous assessment.

 

Soils:

The proposal is not considered to have any impact on soil conservation.

 

Air & Microclimate:

The proposal is not considered to have any impact on air quality.

 

Flora and Fauna:

The proposal is not considered to have any impact on flora or fauna. The proposal does not include the removal of any existing vegetation on the site.

 

Waste:

The proposal will not result in the generation of additional waste.

 

Energy:

The proposal is not considered to be inefficient in terms of energy demand.

 

Noise & Vibration:

The proposal is not anticipated to result in a significant increase in the amount of noise generated from the site that is likely to affect surrounding residential receptors.

 

Safety, Security and Crime Prevention

The proposal is not considered to generate any significant safety or security issues.

 

Social Impact:

The proposal is not considered to have a detrimental social impact on the locality.

 

Site Design and Internal Design

The proposed modification does not change the site or internal design of the proposal. The proposal does not effect the sites’ previous assessment.

 

Construction

No construction works are associated with the development proposal.

 

Cumulative Impacts

The proposal is not considered to have a negative cumulative impact on the locality.

 

Amenity and Privacy

The proposed modification will not impact on the previous assessment, and is considered to be adequate.

 

THE SUITABILITY OF THE SITE s79C(1)(c)

 

Physical Attributes and Hazards

There are no known technological hazards that would affect the proposed development, however natural hazards do exist. The site is identified as land being subject to bushfire prone land, however the proposed modification will not have any further impact on the land. The modification relates only to the calculation of the S94 Contributions applicable to the site.

 

DEVELOPMENT CONTRIBUTIONS

 

Development contributions (S94 Contributions) do apply to the proposed development. A contribution of $938.30 towards the improvement of bushfire services and amenities for the Mandagery Bushfire Brigade is in accordance with Council’s Bushfire Services Contribution Plan, 1993 (Condition 6).

 

Road Improvement Contributions for subdivisions is also applicable to this application. The contributions have been levied in accordance with Council’s Road Contribution Plan, 2007. They include $5337.26 towards the improvement to Reedy creek Road, $7243.45 towards the improvement to Mandagery Road and $6480.99 towards the improvement to Buronga Road (Condition 7).

 

These levies were included as conditions of consent and are reflected in Condition 6 and 7 of the Notice of Determination.

 

The modification proposal partly included a request for Council to reconsider the S94 contributions for both roads and bushfire services for the development. Both S94 contribution plans have been adopted by Council and have been consistently applied to all subdivisions within Cabonne. The proposed modification was referred to Development Engineering for further comment and re-assessment and is as follows: 

 

“Whether the Development is Integrated Development”

The applicant develops his argument around a matter of jurisdiction pursuant to section 45 (1)(i)(b) of the Rural Fires Regulation. Lot 2 DP 533199 is 376.2 Ha in area and the area of bushfire prone land on Lot 2 DP 533199 is 4182m2. This equates to 11% of the existing allotment is bushfire prone.

This development should be assessed as integrated development pursuant to S 91 of the EP&A Act 1979.

“Section 96 modification”

The applicant argues the s 94 road contribution is “onerous and simply unnecessary”. The April 2007 Section 94 road contribution plan provides a nexus to address the applicants claim the contribution is “unnecessary” and a basis for calculating contributions to address the onerous argument. Is the applicant stating the contribution is onerous to his client in paying the contribution or onerous to the rate payers of Cabonne if his client does not pay the contribution?

The April 2007 Section 94 road contribution plan has been consistently applied to all subdivisions  within Cabonne and should not be waived in this case, nor should the Section 94 Bushfire contribution plan. Proposed Lot 113 will require a legal and physical access to be created and constructed as per DCP 5.

Although the initial SOE did state proposed Lot 113 will be transferred to the owners of Lot 80 DP 750180. The application was for the subdivision of Lot 2 DP 533199. Should the applicant wish to avoid the Section 94 road contribution based on this argument then the applicant will need to lodge a new development application for the subdivision of Lot 2 DP 533199 and the consolidation of proposed Lot 113, Lot 80 DP 750180, Lot 93 DP 657435, Lots 110 & 61 DP 750180 and Lots 1 & 2 DP 1064151. Should this application be approved then a condition of consent would be needed to say proposed Lot 113 is to have a restriction to user in the form of an 88b. instrument with no dwelling to be built on it until such time Council removes the restriction. Council will only remove the restriction to user once the consolidation has been completed.

For the purpose of this modification the Clients commercial offer should be rejected. Conditions 6, 7 & 8 should stay on the consent.

 

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

 

The proposed development is not advertised development.

 

Whilst the initial development proposal was required to be neighbour notified, the modification was not required to be re-notified as it only related to S94 Contributions and the provision of private access.

 

Public Authority Consultation

The subject application was not required to be referred to the NSW Rural Fire Services for further assessment as the modification related to S94 contributions only with no changes proposed for the subdivision layout.

 

PUBLIC INTEREST s79C(1)(e)

 

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. 

 

 

CONCLUSION

The proposed development relates to the two (2) lot subdivision on Lot 2 DP 533199, Mandagery Road, Mandagery for the purposes of agriculture. The proposed modification seeks Council to reconsider the S94 Contributions that are applicable to this proposal (Conditions 6 & 7) and delete the requirement for access to proposed Lot 114 (Condition 8). In return the Applicant has made a commercial offer for a set payment amount of $5000. Based on the recommendation of the Development Engineer in relation to the required S94 Contributions and the provision of private access, Council should refuse the modification and uphold the requirements of Conditions 6, 7 & 8 of the Notice of Determination (DA 2011/110). Alternatively, Council may accept the Applicant’s commercial offer of $5000 and the deletion of Condition 8 (Private Access).

 

Recommendation

 

THAT modified Development Application 2011/110 for Lot 2 DP 533199, Mandagery Road, Mandagery be Refused and the requirements for Conditions 6, 7 & 8 be upheld.

 

 

 

 

 

ITEM 34 - MODIFICATION APPLICATION DA 2008/153 - 22 LOT SUBDIVISION, LOTS 13 TO 22 DP 1131133, FOREST ROAD, SPRING HILL

REPORT IN BRIEF

 

Reason For Report

Request for Modification of D.A. 2008/153

Policy Implications

Nil

Budget Implications

Nil

Area of Responsibility

Development

Annexures

1.  Draft Conditions of Consent

2.  Modified Plans    

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 290732

 

Director of Environmental Services' REPORT

 

ADVISORY NOTES

Record of voting

In accordance with s375A of the Local Government Act 1993, a division is required to be called when a motion for a planning decision is put at a meeting of Council or a Council Committee.  A division under s375A of the Act is required when determining this planning application.

 

Political Disclosures

In accordance with s147(4) of the Environmental Planning and Assessment Act 1979, a person making a planning application to Council is required to disclose political donations and gifts made within 2 years prior to the submission of  the application and concluding when the application is determined.

 

In accordance with s147(5) of the Environmental Planning and Assessment Act 1979, a person making a public submission to Council in relation to a planning application made to Council is required to disclose political donations and gifts made within 2 years prior to the submission being made and concluding when the application is determined.

 

Political donations and gifts (if any) to be disclosed include:

·    All reportable political donations made to any local councillor or Council,

·    All gifts made to any local councillor or employee of the Council.

 

Nil planning application disclosures have been received. 

 

Nil public submission disclosures have been received. 

 

SUMMARY

 

The following report provides an assessment of a modification application submitted for a rural residential subdivision relating to the creation of 22 rural residential allotments upon land described as lots 13 – 24 DP 1131133, Forest Road, Spring Hill. (The land at the time of issue of development consent was described as Lot 1 DP 804164, Lots 43 and 44 and pt 46 DP 750387 and Lot 45 DP 653474).

 

The modification application has been referred to the Council for determination as the original approval was determined by the Environmental Services Committee.

 

It is recommended that the modification application be approved subject to conditions of consent.

 

Applicant: Peter Basha Planning and Development

Owner:      R & P Davis

Proposal:  Modification of approved subdivision of 22 lots

Location:   Lots 13 to 24 DP 1141144, Forest Road, Spring Hill

Zone:         1(c) Rural Small Holdings (Amendment 20) Cabonne LEP 1991

 

THE PROPOSAL

 

The subject land was formerly used, in part, for an intensive dairy. The area was rezoned in February 2008 from rural to rural residential land to permit development of the area for a 22 lot subdivision. The dairy was subsequently closed and relocated away from the subject area.

 

The Environmental Services Committee at its meeting of 7 July 2008 approved the subdivision subject to 28 conditions of consent. The approval was subsequently amended to reflect a two stage release of the development. The subdivision has proceeded and the initial stage of the subdivision plan was registered in April 2009. The developer is now seeking to progress the second stage of the development. This will result in Lot 24 DP 1131133 being divided into 11 allotments ranging in size from 2ha to 13ha.

 

Approval is sought to facilitate the following modifications to the second stage development:

 

·    Delete the proposed public road proposed to service proposed Lots 4, 9 and 10

·    Create proposed Lot 10 as a battleaxe lot with access to Carcoar Road

·    Create proposed Lot 9 as a battleaxe lot with access from Strachan Road

·    Amend proposed Lots 3, 4 and 11 to accommodate the above changes

·    Amend condition 25 to enable certain demolition material to be buried on site

 

The above variations will modify four of the eleven proposed lots as follows:

 

Lot and area

Revised area

Lot 4 – 4.76ha

4.29ha

Lot 9 – 2.79ha

3.1ha

Lot 10 – 2.1ha

2.93ha

Lot 11 – 3.4ha

3.32ha

 

 

 

 

The modification as requested by the developer will require council to review a range of conditions of development consent as summarised below:

 

Condition No.

Purpose

8

Road contributions

15

Road design and construction

16

Street name signs

18

Bitumen seal access

19

Engineering design

20

Maintenance liability period

21

Temporary cul de sac

22

Intersection design

24

Public liability insurance

25

Demolition

 

These matters will be addressed in the report below.

 

 

5001973

 

Site Map

 

MATTERS FOR CONSIDERATION

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

 

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

 

Cabonne Local Environmental Plan 1991 (Amended)

The subject land is zoned 1(c) Rural Small Holdings by the Cabonne Local Environmental Plan 1991 (amended by LEP 20).  Subdivision of land is permissible within this zone, subject to Council’s development consent.

 

 

 

Objectives of the 1(c) zone

The proposal is not contrary to the aims of the LEP or the objectives of the 1(c) zone.  The development relates to and is consistent with the zone objective which seeks to “promote development of land identified as suitable for rural residential or hobby farm development".

 

Clause 10 General considerations for development within rural zones

The modification is not inconsistent with this clause.

 

Clause 11 Subdivision of land generally

The modification does not alter the original proposal to create a maximum of 22 rural residential allotments upon the subject land.

 

Clause 16 Subdivision for the purpose of dwellings in zone 1(c)

The modification is consistent with clause 16. In particular the modification does not contravene clause 16(1C) as that the total lots created by this development remains at 22 and each allotment has an area of 2ha or greater.

 

The proposed modification does not contravene clause16(2) as the proposed amendments will not have an adverse impact upon land capability, servicing, standard or capacity of the road system, impact upon other land or the amenity of the area.

 

REGIONAL ENVIRONMENTAL PLANS

 

There are no Regional Environmental Plans that apply to the subject land.

 

STATE ENVIRONMENTAL PLANNING POLICIES

 

The modification is not inconsistent wit the objectives of the Rural Lands SEPP. The development does not have an adverse impact upon SEPP 44 – Koala Habitat.

 

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

 

There are no draft environmental plans that relate to the subject land or proposed development.

 

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

 

Development Control Plan No 6 applies to this development. The proposed amendments are not inconsistent with the objectives of the DCP.

 

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

The proposal does not contravene the relevant provisions of the regulations.

 

 

 

 

 

 

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

 

Lot size and shape

The proposed amendments to the areas of proposed lots 4, 9, 10 and 11 will not alter the overall character of the approved development. Each lot satisfies the minimum lot size requirements as specified by the LEP.

 

Each allotment contains a building envelope suitable for the accommodation of future development.

 

Access and traffic

The modification will result in the deletion of a proposed public road that was proposed to provide access to proposed lots 4, 9 and 10.  The deletion of the road will reduce the development cost to the developer in the first instance, and will not require transfer of the access to council.

 

The variation will result in two lots being redesigned as battleaxe lots, one having frontage to Carcoar Road, the other to Strachan Road. The Development Engineer has no objection to the proposal. It is also noted that there was previously local resident objection to the location of the proposed road. The removal of the road and the redesign of the allotment layout addresses the traffic and amenity issues previously raised.

 

To facilitate the modification and the subsequent deletion of a proposed cul-de-sac road the following modifications are required to the current development consent:

 

Deletion of Conditions 15, 16, 18 – 22 as they relate to the design and construction of the proposed roadway and will not apply to the revised proposal.

 

Demolition materials

Condition 25 of the current consent requires the removal of all site demolition material. A review of the modification application and the condition of consent has been carried out and it is suggested that the condition of consent be amended to include wording “All inert building material can be used for road making activities, building, landscaping and construction works. All other refuse is to be removed from the site”.

 

The applicant has sought approval to bury demolition material on-site. Council has received a complaint from an adjacent resident concerned that on-site burial of waste may be proposed and that site contamination may occur within a water catchment area. The revised condition of consent enables the developer to recycle inert material as part of the subdivision construction and development phase while requiring all other demolition material to be removed to appropriate waste facilities.

 

 

 

 

 

 

 

THE SUITABILITY OF THE SITE s79C(1)(c)

 

Physical Attributes and Hazards

There are no known technological or natural hazards that would affect the proposed modified development.

 

DEVELOPMENT CONTRIBUTIONS

 

Condition 8 of the development consent relates to road improvement contributions and should be amended to require a road contribution of $2689 towards the improvement of Strachan Road.

 

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

 

The proposed modification is not advertised development. The proposed modification was not neighbourhood notified as the scale of the subdivision remains unchanged. 

 

PUBLIC INTEREST s79C(1)(e)

 

The proposed modified development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. 

 

CONCLUSION

 

The proposed modified development is permissible with the consent of Council. The development complies with the relevant aims, objectives and provisions of the LEP.  A section 79C assessment of the modified development indicates that the development is acceptable in this instance.  Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the modified development proceeds in an acceptable manner.

 

 

 

 

Recommendation

 

THAT Modification Application DA 2008/153 for a 22 lot subdivision of land described as Lots 13 to 24 DP 1141144, Forest Road, Spring Hill

be granted consent subject to the following amendments to the notice of consent:

(1)          Amend condition 8 to include a s94 road contribution of $2689 towards the improvement of Strachan Road,

(2)          Deletion of conditions 15, 16, 18 to 22 and 24, and

(3)          Amend condition 25 (b) to permit the use of inert building material for road making activity, building, landscaping and construction works, with all other refuse to be removed from the site.

 

 

 

 

 

ITEM 35 - RELOCATING THE GRIDER STRUCTURE OF THE OLD GASOMETER TO RAILWAY LAND AT MOLONG

REPORT IN BRIEF

 

Reason For Report

To gain Council's support for the relocation of the gasometer.

Policy Implications

Nil

Budget Implications

$8,470 in total (about $6,000 immediately, the balance over five years).

Area of Responsibility

Environmental Services

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292593

 

Director of Environmental Services' REPORT

 

Council at its meeting of 17 October (a) noted that a community consultation meeting chaired by the Deputy Mayor resulted, inter alia, in the suggestion that the visually-prominent gasometer girder structure could be relocated from its present site to vacant railway land located between the swimming pool and the gatekeeper’s cottage, (b) agreed that a lease for this railway land be investigated with the Australian Rail and Track Corporation (ARTC).

 

Council has received $500,000 from the Environmental Trust for the remediation of the Gasworks site, where pollutants risk contaminating groundwater.  Tenders for the remediation works will be considered at the 20th February meeting with a view to the actual excavation and remediation works being done in the cooler months of April, May and June so that work is done before 30 June.

 

The first step in any remediation work will be removal of the gasometer girder structure.  This fairly simple job, involving a large crane, can be performed by Council at a cheaper cost (estimated circa $5,000) and much sooner than if this work would be included in the tender.

 

Discussions have occurred with the ARTC, who are prepared to lease the vacant railway land block of 2,193 square metres in size, located between the swimming pool and the gatekeeper’s cottage to Council for a rental of $550 per year (going up by 3% per annum), with an initial application fee of $550, making a total of $3,470 over five years. 

 

This is considered cost effective so that this land may be brought from being vacant wasteland into community use as a tourist attraction.  The visual prominence of the girder structure would be the basis of a tourist attraction at the start of the walking track.

 

 

Consultation with the RTA resulted in their letter of 24 October, which gives in principle agreement, provided that there be no motor vehicle access to the site, with visitors parking near the Molong train station, and that No Stopping signs be erected along the relevant portion of the highway.  There are thus almost no cost implications in regards to traffic and the highway.

 

 

 

Recommendation

 

THAT:

 

1.          Council, enter into a lease agreement with the ARTC, at a total cost of $3,470 over five years.

2.          As soon as is practical after the lease is finalised, Council staff clean up the railway site and relocate the gasometer girder structure.

 

 

 

 

 

ITEM 36 - DEVELOPMENT APPLICATION 2012/65 - SUBDIVISION (TWO LOT BOUNDARY ADJUSTMENT) - LOT 108 DP 876024 AND LOT 2 DP 884022, 523 GRIFFIN ROAD, BORENORE

REPORT IN BRIEF

 

Reason For Report

For the determination of council

Policy Implications

SEPP 1 Development Standards - objection to cl12(3) Cabonne LEP 1991

Budget Implications

Nil

Area of Responsibility

Development

Annexures

1.  Site Maps     

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292653

 

Director of Environmental Services' REPORT

 

ADVISORY NOTES

Record of voting

In accordance with s375A of the Local Government Act 1993, a division is required to be called when a motion for a planning decision is put at a meeting of Council or a Council Committee.  A division under s375A of the Act is required when determining this planning application.

 

Political Disclosures

In accordance with s147(4) of the Environmental Planning and Assessment Act 1979, a person making a planning application to Council is required to disclose political donations and gifts made within 2 years prior to the submission of  the application and concluding when the application is determined.

 

In accordance with s147(5) of the Environmental Planning and Assessment Act 1979, a person making a public submission to Council in relation to a planning application made to Council is required to disclose political donations and gifts made within 2 years prior to the submission being made and concluding when the application is determined.

 

Political donations and gifts (if any) to be disclosed include:

·    All reportable political donations made to any local councillor or Council,

·    All gifts made to any local councillor or employee of the Council.

 

Nil planning application disclosures have been received. 

 

Nil public submission disclosures have been received. 

 

 

 

SUMMARY

Council’s approval is sought for a subdivision of Lot 108 DP 876024 and Lot 2 DP 884022, 523 Griffin Road, Orange for the purpose of a boundary adjustment between the allotments.

 

The applicants are Mr AG Green and Mrs BJ Green, who are also the landowners.

 

The development application is referred to council for determination as the proposal doesn’t comply with the provisions of the Cabonne LEP 1991. The application is supported by a submission under State Environmental Planning Policy 1 – Development Standards and required the concurrence of the Department of Planning and Infrastructure.

 

It is recommended that the application be refused. Council may however give consideration to the SEPP 1 objection and support the proposal, subject to obtaining the concurrence of the Department of Planning and Infrastructure.

 

Development background

The subject land comprises two rural allotments located at the termination of Griffin Road, approximately 8km north-west of Orange. Lot 2 DP 884022 has an area of 75.47ha and is agricultural land containing a farm shed. The allotment created is an agricultural allotment through subdivision (DA 98/79).

 

The development application provided a two stage development for a dwelling upon the ‘existing holding’ and a two lot subdivision of the ‘existing holding’ to create a vacant 7.3ha concessional allotment and a 75.4ha agricultural allotment. Although the dwelling was approved, no structure was erected. The subdivision to create the two lots, and the subsequent sale of the smaller concessional lot, split the ‘existing holding’.  The 1998 approval provides that the concessional allotment was created under clause 14 of the Cabonne LEP 1991 while the file notes indicate Lot 2 was created by clause 12(2) for the purpose only of agriculture.

 

Commencing in 2009 enquiries have been made to council seeking permissibility to construct a dwelling upon the agricultural lot. As the lot is below the 100ha standard there is no ability to approve a new dwelling upon the site. The planning provisions did permit the construction of the previously approved cottage however there is no ability to consider a subsequent application for a different house plan now that the existing holding has been split by subsequent subdivision.

 

Lot 108 DP 876024 has an area of 73.23ha and was created in 2008 as part of a 7 lot subdivision of a 266ha existing holding (DA 97/59). A dwelling exists upon the allotment.

 

 

The proposal

The proposed subdivision (boundary adjustment seeks to vary the allotments as follows:

 

Existing lot

Area

Lot 2

 75.47

Lot 108

 73.23

Total

148.70ha

 

                  

Proposed Lot

Area

Lot 10

112.4ha

Lot 11

  36.3ha

Total

148.7ha

 

Proposed Lot 11 would contain an existing dwelling and the holding would be used to operate a small scale grazing property.

 

The essential aim of the proposed boundary adjustment appears to be to increase the area of the existing agricultural lot to enable a dwelling to be constructed upon the land. To effect this an area of approximately 37ha is to be transferred from one holding to an adjoining holding.

 

SITE PLAN

The subject land is undulated to hilly country that has been cleared for grazing purposes. Drainage of the land is split between two water catchments being the Molong Creek Catchment and the Bell River Catchment. Molong Creek forms the western boundary of both Lots 2 and 108.

 

Site plan

 

MATTERS FOR CONSIDERATION

Section 79C of the Environmental Planning and assessment Act 1979 requires council to consider various matters, of which those pertaining to the application are listed below.

 

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

 

Cabonne Local Environmental Plan 1991 (Amended)

The subject land is zoned part 1(a) General Rural and part 7(c) Environmental Protection Water Catchments by the Cabonne Local Environmental Plan (LEP) 1991. Subdivision (Boundary Adjustment) is permissible within the 1(a) and 7(c) zone subject to council’s development consent.

 

Objectives of the 1(a) zone

The objective in part is to promote proper management and utilisation of resources by protecting, enhancing and conserving agricultural land in a manner which sustains its efficient and effective agricultural production potential.

 

The subject land is identified as class 3 prime crop and agricultural land by the Department of Agriculture Land Classification map for Cabonne. The proposed subdivision (Boundary adjustment) will further fragment the agricultural landuse pattern by the creation of a 36ha allotment. Currently each holding has some agricultural potential that will be affected by the transfer of land from one allotment to the other.

 

 

Objectives of the 7(c) zone

 

The zone objectives are:

 

(a) to protect and conserve the catchments of the Molong and Borenore Dams so that water quality is maintained and enhanced in order that the water is fit for human consumption

 

(b) to maintain the scenic quality of the Towac Valley

 

(c)  to promote the proper management and utilisation of agricultural resources by

 

(i)         protecting, enhancing and conserving:-

 

agricultural land in a manner which sustains its efficient and effective agricultural production potential

 

soil stability by controlling and locating development in accordance with soil capability

 

forests of existing and potential commercial value for timber production

 

Valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits

 

Trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is significant to the scenic amenity or natural wildlife habitat or is likely to control land degradation

 

Water resources for use in the public interest

 

Areas of significance for nature conservation, including areas with rare plants, wetlands and significant habitat and

 

Places and buildings of archaeological or heritage significance, including the protection of Aboriginal relics and places

 

(ii)        preventing the unjustified development of prime crop and pasture land for purposes other than  agriculture

(iii)       ensuring that any allotments created for intensive agricultural purposes is potentially and physically capable on its own of sustaining a range of such purposes or other agricultural purposes as a commercial operation suitable to the locality

(iv)       facilitating farm adjustments

(v)        minimising the cost to the community of fragmented and  isolated development of rural land and providing, extending and maintaining public amenities and services

(vi)       providing land for future urban development, for rural residential development and for development for other non-agricultural purposes in accordance with the need for that development

(vii)      providing for a range of rural living styles in appropriate locations within the area to which the plan applies

(viii)     encouraging the establishment of rural and related industries within the area to which the plan applies

 

The applicant states that the development is consistent with the stated objectives. The proposal is generally in accordance with the provisions however it is inconsistent with the aims to protect and maintain prime agricultural land and to enable sustainable agricultural enterprise. The current allotment arrangement provides for two lots of approximately 70ha – each having potential for small scale grazing operations. While the proposal seeks to increase the area of one lot, the reduction of the second lot to 36ha significantly reduced its agricultural capability. The area is further reduced by the presence of existing infrastructure being a dwelling.

 

Clause 10 – general considerations for development within rural zones

 

Council must take into account the effect of the development upon:

(a) the present and potential use of the land for the purpose of agriculture

(b) vegetation, timber production, land capability, water resources

(c)  future recovery of known or prospective areas of valuable deposits of minerals, coal, petroleum, sand, gravel or other extractive materials

(d) the protection of areas of significance for nature conservation or of high scenic or recreational value, and places and buildings of archaeological or heritage significance, including Aboriginal relics and places,

(e) the cost of providing, extending and maintaining public amenities and services to the development,

(f)  future expansion of settlements in the vicinity

and the council is satisfied that the development will not have an adverse impact  on the long term use, for sustained agricultural production of any prime crop and pasture land.

 

The area is identified as class 3 prime crop and pasture land by the Department of Agriculture Land Capability maps.

 

The existing lots are utilised for grazing purposes. It is proposed to retain similar activities upon the proposed lots, however it is noted that the holdings are reduced from two lots of 70ha with the result of a 36ha allotment being created that will have limited sustainable agricultural opportunity.

The subdivision will not impact upon vegetation, timber production, mineral resource recovery, natural or scenic conservation areas or impact upon settlement strategies or land servicing capabilities.

 

Clause 11 – subdivision of land generally

Proposed Lot 10 is to be utilised for agriculture. A dwelling does not exist upon the land however it is proposed that a future dwelling may be constructed.

 

Proposed Lot 11 is to be utilised for a small scale grazing operation. An existing dwelling is to be included upon this allotment.

 

Clause 12 – subdivision for the purposed of agriculture in zone 7(c)

Clause 12(2) permits the creation of an allotment of any size for the purpose of agriculture. Proposed lot 10 is to have an area of 112.4 ha and is to be created for the purpose of agriculture (with potential for a dwelling).

 

Clause 12(3) prohibits the creation of an allotment for the purpose of agriculture if the allotment has an area of less than 100ha and a dwelling is already located upon the land.  Proposed Lot 11 has an area of 36ha and is to contain an existing dwelling. The proposal does not satisfy the provisions of the LEP. Accordingly the proponent has submitted an objection to the development standard by way of lodgment of a SEPP 1 application.

 

 

REGIONAL ENVIRONMENTAL PLANS

There are no regional environmental plans that apply to the subject land.

 

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 44 – Koala Habitat applies to the subject land.


Cabonne Council is identified within the SEPP 44 schedule as having known koala habitat. The subject land is not identified as containing core koala habitat or populations. The development will not have an adverse impact upon koalas or habitat.

 

State Environmental Planning Policy (Rural Lands) 2008 applies to thee subject land.

The SEPP requires council to consider the existing and approved uses of land in the vicinity of the development (when the development involves subdivision or dwellings), and whether or not the development is likely to have a significant impact upon the predominant or preferred land uses.

 

The surrounding landuses consist of grazing land. The development is unlikely to have an adverse impact upon the adjoining rural land holdings.

 

State Environmental Planning Policy No 1 – Development Standards applies to this development.

 

SEPP 1 – Development Standards was gazetted on 17 October 1980 and has been amended on a number of occasions since. The policy sets out the general principle that a development standard may be avoided where strict compliance can be shown to be unreasonable or unnecessary or would tend to hinder the attainment of the objectives specified in s5(a)(i) and (ii) of the Environmental Planning and Assessment Act.

 

SEPP 1 is an administrative rather than a policy making tool and this needs to be kept in mind. The discretion provided by SEPP1 should only be used in special circumstances of a compelling kind.  SEPP 1 objections cannot be used as a means to effect general planning changes throughout a Council area. SEPP 1 should not be used where approval under the policy is likely to lead to other similar applications being made in the locality. Council must consider if the cumulative effect of similar approvals will undermine the objective of the standard or the planning objectives of the locality.

 

The SEPP aims to provide flexibility in the application of council’s planning controls by virtue of the operation of planning standards in circumstances where strict compliance with those standards would be unreasonable or unnecessary. A proponent may object to a development standard when satisfactory evidence is provided and where council is of the opinion that granting consent would be consistent with the aims and objectives of the zone.

 

Council may exercise its delegation granted by the Director of the Department of Planning where the variation of the development standard does not exceed 10%, and only one lot does not satisfy the standard.

 

In certain boundary adjustments the Department of Planning has approved assumed concurrence arrangements where both allotments are already below the minimum allotment size for the zone, subject to the following conditions,

 

          i         that no additional allotments are created

          ii        that no additional dwelling entitlement is created, and

iii         the council is satisfied that any existing or potential agricultural use of the land will not be compromised

In this regard, the proposal satisfies the first requirement. However there is some argument as to whether the second requirement is satisfied as the permissibility for a dwelling upon the existing Lot 2 was negated when the previous two lot subdivision was effected. The proponent argues that there is no increase to dwelling entitlements based upon the theoretic dwelling potential that was available to the earlier ‘existing holding’. It is noted that the holding was subject to a concessional lot subdivision that permits a dwelling on the 7.5ha lifestyle Lot.  In correspondence to planning consultants Terra Sciences at the time of the 1998 DA Council advised that:

 

‘The existing holding itself is entitled to a dwelling pursuant to Clause 18(1)(b)(l) of Cabonne Local Environmental Plan 1991. However, when the existing holding is split no right of a dwelling is transferred to proposed Lot 2. It is therefore suggested that development consent be obtained for a dwelling on the existing holding prior to any subdivision proceeding.’

 

With regard to the third requirement – the reduction on area from a 73ha allotment to a 36ha allotment would have a significant impact upon that lot’s agricultural potential. The proponent argues that Lot 108 was established through clause 12(4) of the Cabonne LEP which permits subdivision of less than 100ha in area for rural land containing an existing lawfully established dwelling. The proponent suggests the 73ha allotment could have been created with a lesser area and still been compliant. This argument seems irrelevant as the allotment has been lawfully created.

 

It is considered that the application does not satisfy two of the three above requirements and as such the concurrence arrangements do not apply in this instance.

 

There are three main considerations that must be satisfied when resolving to support an objection under the provisions of SEPP 1:

 

1.         That the standard is not a prohibition and may be varied

2.         That the development complies with the object of the Environmental Planning and Assessment Act 1079, the objectives of the Cabonne LEP and the underlying objectives of the development standard to be varied, and

3.         The application of the standard is unnecessary or unreasonable.

 

The proponent seeks approval to subdivide two existing allotments by way of a boundary adjustment to enable creation of an allotment of 112.4ha capable of a dwelling entitlement, and a 36.3ha lot containing an existing dwelling. The proposed 36.3ha lot is acknowledged as being below the minimum area of 100ha required for subdivision of rural land where a dwelling exists upon the land. This represents a 64% variation below the standard.

 

The 100ha requirement is considered to be a development standard that may be varied rather than a strict prohibition.

 

The proponent submits that compliance with the 100ha standard is unreasonable or unnecessary in this circumstance due to the following:

 

The applicant claims that the 100ha standard is unreasonable because:

 

·    Lot 108 DP 876024 has an area of 73.23 has and is already less than the 100ha minimum  

·    Lot 108 was created pursuant to clause 12(4) and theoretically could have been created as a smaller holding  - for example 36ha

·    The transferred land will continue to be used for grazing

·    Council is able to consider a boundary under SEPP 1 assumed concurrence

·    The boundary adjustment would improve the planning situation by the creation of one 100ha lot

·    The rural character and function of the area won’t be adversely affected

·    Both lots are below the 100ha minimum

·    Previous subdivision within the Griffin Road area has fragmented the area into smaller rural properties and the 100ha standard has been abandoned.

 

Comment

The grounds for the objection to the 100ha minimum dwelling lot standard for this zone should demonstrate that compliance with the standard is unreasonable or unnecessary and that approval of the proposal will not compromise the underlying objective of the standard.

 

That both lots are less than 100ha in area is not a relevant consideration as each lot was lawfully created by subdivisions under the Cabonne LEP 1991. In each subdivision 100ha was not the prescribed minimum lot size for the establishment of either lot.

 

The proponent states that new owners of proposed lot 10 may bring off-farm income to the enterprise while noting the holding may be capable of increased productivity. Currently both lots are held in single ownership. Clearly the subdivision has the potential to further fragment the agricultural holding, reduce the current viability of a holding and to increase potential landuse conflict by the introduction of an additional dwelling upon the landscape.

 

The objective of the rural zone is to maintain land for agricultural use. There are limited opportunities within the LEP to enable a dwelling to be constructed upon rural land. The plan encourages farm build up and consolidation of holdings rather than fragmentation of properties.

 

While it is acknowledged that the boundary adjustment will provide for an increased rural lot size for one lot from 75 ha to 112.4ha and an improvement in viability. However the reduced lot size of 36ha for the second lot is not in accordance with the intent of clauses 10 and 11 of the Cabonne LEP.

 

The justification submitted with this proposal has not adequately demonstrated that compliance with the standard is unreasonable or unnecessary.

 

Approval of the reduced allotment size is likely to create a precedent for similar proposals across the shire. It is considered that the above grounds for objection to the subdivision standard contained in the Cabonne LEP 1991 are not sufficient to allow for a variation to the provisions. It is considered that council may either:

 

1.   Refuse the application on the grounds that

(a) The proposed subdivision (Boundary Adjustment) will diminish the potential of one of the allotments to be used for agriculture (Clauses 10 and 11)

(b)      The proposal is contrary to the intent of the zone

(c)      It will alter the function and use of the land

 

2.   Approve the application

 

If council is of the view to determine the application, then a copy of council’s report and the application will be required to be forwarded to the Department of Planning and Infrastructure for its concurrence.

 

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HASS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

DCP 5 – General Rural Zones applies to this development

 

The objectives of DCP 5 include:

 

·    Promote guidelines which are sufficiently flexible to encourage innovative building and development while at the same time conserving the important natural assets of the General Rural zone, and preserving the ‘right to farm’ of existing agricultural establishments

 

The proposed subdivision in generally consistent with this aim

 

·    Ensure that residents and developers are well informed of Council’s requirements relating to the General Rural zone

 

The development was neighbourhood notified with no submissions being    received by council.

 

·    Ensure that adequate documented development applications are lodged and which substantiate the manner in which the proposed development has been designed to fit the particular site conditions and the development principles and the standards in this DCP

 

Adequate information was provided with the development application

 

·    Provide reasonable and clear guidelines for the provision of services to small holdings, including guidelines on disposal of waste, provision of water supply, provision of other utility services, without placing a financial burden on other residents as a result of the development proceeding

 

Utility services are available within the area. The provision of the services to the site would be the responsibility of the developer. Ongoing maintenance of infrastructure may be a community cost.

 

The subdivision will not require provision of additional services.

 

·    Protect and conserve land which has been identified  as environmentally sensitive

 

The land has not been identified as environmentally sensitive.

 

 

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(b)

 

The proposal does not contravene the relevant provisions of the regulations.

 

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

 

Context and setting

The subject site is surrounded by agricultural land which is predominantly used for grazing. There are a number of allotments within the area that appear to have been created as concessional lots, however most remain vacant lots.

 

Access and traffic

The development proposal will not substantially increase traffic along to and from the lots. It is considered that Griffith Road is adequate to accommodate any minor increase of traffic generated by the subdivision.

 

Council’s Development Engineer has indicated that access to service each proposed lot will require upgrading and / or relocation to provide safe and adequate vehicular assess points.

 

Dwelling entitlement

A dwelling is located upon proposed Lot 11. A building envelope has been identified upon proposed Lot 10. Adequate setbacks from the boundaries can be achieved.

 

It is noted that there is no dwelling currently located upon proposed lot 11. DA 98/79 granted approval to a dwelling on the former allotment having an area of 82ha. The same Development Consent also approved a subsequent subdivision of the holding into two lots being a 7ha concessional lot having a building entitlement and a 75ha agricultural holding. The initial dwelling proposed for the existing holding did not proceed, however by virtue of the development consent applying to a dwelling and a subdivision, and that the subdivision proceeded, the consent would appear to remain valid.

 

Services

Proposed Lot 11 contains an existing dwelling and is connected to all relevant services.  Extension of similar services to proposed Lot 10 is possible and is unlikely to be an economic burden to the community.

 

Flora and fauna

There have been no identified threatened species on the subject land based upon a search of the NSW National Parks and Wildlife Atlas.

 

Natural Hazards

The subject land is not identified as being bushfire prone land, flood liable land, nor are there any known hazards affecting the area.

 

THE SUITABILITY OF THE SITE s79C(1)(c)

The subject land is situated in a rural area. The proposed subdivision (boundary adjustment) will not cause any impact upon the physical environment, generate traffic or cause a demand for additional services. The subject land is not identified as having any known technological or natural hazards that would affect the proposed development.

 

DEVELOPMENT CONTRIBUTIONS

No section 94 contributions apply to the development.

 

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

The proposed development is not advertised development under the provisions of the LEP and as such no formal exhibition of the application was required. The proposed development was neighbourhood notified. No submissions were received by council by the close of the exhibition period.

 

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be of minor interest to the wider public due to its relatively localised nature of the potential impacts.

 

CONCLUSIONS

The proposed development (boundary adjustment) is inconsistent with the Cabonne LEP 1991 and is contrary to the minimum lot size provisions contained in clause 12(3) of the Cabonne LEP. However council may agree to vary the minimum lot size subject to the adequate application of SEPP 1. An assessment of the grounds for the objection for a variation of the minimum lot size standard as submitted has been carried out above. It is considered that the grounds of objection are insufficient to allow council to approve it without compromising the intent of the LEP in relation to the zone.

 

COMMENTS

It is recommended that the application be refused. As stated above, should council consider supporting the application, the proposal and the planning report will be referred to the Department of Planning and Infrastructure for its concurrence.  Council will be further advised of the department’s decision in regard to this matter.

In considering the application council may determine to either:

 

1.         Support the SEPP 1 application and approve  the subdivision, subject to the concurrence of the Department of Planning

2.         Not support the application and refuse consent on the basis that the application is inconsistent with the Cabonne LEP clause 12(3).

 

Council in determining the application must be satisfied that it is reasonable and appropriate to support the SEPP 1 variation. As discussed above the underlying objective of the zone is to protect prime crop and pasture land from fragmentation and to encourage sustainable agriculture. The 100ha standard has been adopted based on it being an appropriate minimum area for the Cabonne Local Government Area whereby agriculture may be sustainable and an ancillary dwelling be supported.

 

The applicant has not provided adequate information in support of the specific circumstances that warrant consideration of the development variation. It would appear likely that approval of such an application could set a precedent for further similar applications thereby undermining the key objectives of the LEP. 

 

Summary

The proposed subdivision is contrary to the min lot size provisions contained in clause 18 of the Cabonne LEP 1991. However Council may agree to vary the minimum lot size subject to support of a SEPP 1 objection. As assessment of the grounds for objection to relax the minimum lot standard as submitted has been carried out. It is considered that the grounds of objection are sufficient to allow Council to approve it without compromising the intent of the LEP in relation to this zone.

 

 

 

Recommendation

 

THAT council refuses development application DA 2012/65 for proposed subdivision (two lot boundary adjustment) at Lot 108 DP 876024 and Lot 2 DP 884022 – 523 Griffin Road, Borenore on the following grounds:

 

(a) creation of this subdivision will diminish the potential of one of the allotments to be used for sustainable agriculture (Clauses 10 and 11 – Cabonne LEP 1991)

(b) the proposal is contrary to the intent for the zone, and

(c)  the proposal will alter the existing rural function of  the land

 

 

 

 

 

 

 

ITEM 37 - Report on request for donation

REPORT IN BRIEF

 

Reason For Report

For the determination of Council

Policy Implications

NIl

Budget Implications

Requires contribution of funds from Council's s 356 vote

Area of Responsibility

Environmental Services

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 292705

 

Director of Environmental Services' REPORT

 

Council is in receipt of a request for donation to refund a not for profit charitable organisation an amount equivalent to the fees incurred in lodging a Development Application with Council.

 

In August 2011 Council received a Development Application for an amenities block and septic system (DA 2012/24). The applicant was Karma Yiwong Samten Ling (Tibetan Buddhist Centre Incorporated). The fees paid when submitting the Development Application totalled $505.25, being $110.00 DA fee, $200 inspection fee, $67.35 Construction Certificate fee and $127.90 Septic Tank application.

 

Whilst Council has no specific policy which deals with such requests, it is understood that refunds to not for profit organisations have been granted in the past as donations under Council’s Section 356 discretionary fund.

 

Whilst Council staff time has been allocated to the assessment of this application, it would appear reasonable for Council to donate the equivalent of the Development Application fee which amounts to a total of $110.00.

 

 

 

Recommendation

 

THAT Council donate an amount of $110.00 as an amount equivalent to the fees paid for Development Application 2012/24.

 

 

 

 

ITEM 38 - Questions For Next Meeting

REPORT IN BRIEF

 

Reason For Report

To provide Councillors with an opportunity to ask questions/raise matters which can be provided/addressed at the next Council Meeting.

Policy Implications

Consistent with Council's Meeting Practice Policy

Budget Implications

Nil

Area of Responsibility

Council Meetings

Annexures

Nil   

File Number

\My Workspace\Business Paper Report Directory\Working Reports InfoCouncil 2011 - 289423

 

Administration Manager's REPORT

 

A call for questions for which an answer is to be provided if possible or a report submitted to the next Council meeting.

 

 

Recommendation

 

THAT Council receive a report at the next Council meeting in relation to questions asked / matters raised where necessary.

 

   


Item 6 Ordinary Meeting 19 December 2011

Item 6 - Annexure 1

 




























Item 8 Ordinary Meeting 19 December 2011

Item 8 - Annexure 1

 




Item 9 Ordinary Meeting 19 December 2011

Item 9 - Annexure 1

 





Item 10 Ordinary Meeting 19 December 2011

Item 10 - Annexure 1

 






Item 11 Ordinary Meeting 19 December 2011

Item 11 - Annexure 1

 






Item 21 Ordinary Meeting 19 December 2011

Item 21 - Annexure 1

 




Item 23 Ordinary Meeting 19 December 2011

Item 23 - Annexure 1

 


Item 26 Ordinary Meeting 19 December 2011

Item 26 - Annexure 1

 

DRAFT Code of Meeting Practice

Policy - revised

1 Document Information

Version Date
(Draft or Council Meeting date)

[November 2011 review]

Author

Administration Manager

Owner

(Relevant director)

Director of Finance & Corporate Services

Status –

Draft, Approved,  Adopted by Council, Superseded or Withdrawn

DRAFT

Next Review Date

Within 12 months of Council being elected

Minute number
(once adopted by Council)

Tba

2 Summary

The Meeting Code was developed to help councillors and staff conduct Council meetings in accordance with best practice standards.

Approvals

Title

Date Approved

Signature

Director of Finance & Corporate Services

tba

 

3 History

Minute No.

Summary of Changes

New Version Date

17/10/94

Previous version originally adopted by Council

October 1994

 

Draft prepared based on DLG Practice Note 16 for initial consideration by Council and public exhibition inviting submissions before adopting it (s.361 and s.362 of the Act)

December 2009

09/12/06

Provision for Acknowledgement of Country added at 2.1.1 in accord with December Council resolution.

22 December 2009

10/02/20

Adopted by Council

15 February 2010

10/04/39

Additional note added to Mayoral Minute section (2.7) requiring same to be distributed to all Councillors prior to further consideration.

19 April 2010

10/05/10

Additional Note added (1.4.7) undertaking a six (6) month trial during which the deadline for all tabled documents will be 5pm on the Friday preceding the monthly meetings and these late documents shall be emailed to all councillors and relevant staff by this time.

17 May 2010

10/06/10

Additional clarification added at 2.5 Questions at Council Meetings re adoption of “Questions for Next Meeting”.

21 June 2010

10/08/13

Added definition of “Matter of Urgency”

23 August 2010

10/09/09

Removed reference to “Council has delegated (Delegation G2 refers) the Mayor, (or Deputy Mayor in the Mayor’s absence) to call an Extraordinary Meeting where circumstances are such that a Council decision is required on a matter prior to the next Ordinary meeting.” at 1.1.2.  Delegation was not renewed at September 2010 Council meeting (calling of Extraordinary meetings can not be delegated).

20 September 2010

10/12/15

Council resolved to continue with the policy that the deadline for all tabled documents be 5pm on Friday preceding the monthly meetings, and these late documents be emailed to all Councillors and relevant staff by this time.

20 December 2010

11/02/16

Updated with a reference to the prescribed Form to be used to request the calling of an Extraordinary meeting.

21 February 2011

 

November 2011 – reviewed to remove narrative content and make statements affirmative.  Non Use of Mobile phones and internet access during meetings added.

 


 

4 Reason

The Meeting Code explains the provisions of the Local Government Act 1993 and the Local Government (General) Regulation 2005 as they relate to council meetings and decision-making processes.

5 Scope

All councillors, staff and community members participating in council meetings must act with good intentions and behave to the standard of conduct expected by the community.  Meeting procedures contribute to good public decision-making and increase council’s transparency and accountability to its community.  Councillors are accountable to their communities for the decisions that they make.  Those decisions should be based on sound and adequate information.  The conduct of effective meetings is an indicator of good governance.  Well run meetings reflect an effective partnership and relationship between the governing body of council and council administration. (Sections 232 and 439 of the Act).

6 Associated Legislation

The revision has taken into account legislative changes that have occurred since the Department of Local Government’s Practice Note was first published on 31 January 2006.

The Government Information (Public Access) Act 2009

The Privacy and Personal Information Protection Act 1998

7 Definitions

Matter of Urgency” - Any matter which requires a decision prior to the next meeting or a matter which has arisen which needs to be brought to Council’s attention without delay such as natural disasters, states of emergency, or urgent deadlines that must be met.

 

Emergency” – Includes but is not limited to things such as natural disasters, states of emergency, or urgent deadlines that must be met. 

 

GIPA Act” – The Government Information (Public Access) Act 2009

PPIPA” - The Privacy and Personal Information Protection Act 1998

8 Responsibilities

8.1 General Manager

The General Manager is responsible for the overall control and implementation of the policy.

8.2 Directors and Managers

Directors and Managers are responsible for the control of the policy and procedures within their area of responsibility.

8.3 Employees

Employees are responsible for adhering to the policy when report writing.

8.4 Councillors

Councillors are responsible to adhere to the policy where relevant.


 

 

9 Related Documents

Document Name

Document Location

Access to council information policy

Policy database

Code of Conduct

Policy database

Request to the Mayor to hold an Extraordinary meeting of Cabonne Council Form

InfoXpert Doc ID 200525

Mobile Phone Policy

Policy database

 

10 Policy Statement

TABLE OF CONTENTS

PART 1 - BEFORE THE MEETING.. 6

1.1.       Holding Meetings. 6

1.2.       Notice of Meetings. 7

1.3.       Times of Meetings. 7

1.4.       Agendas and Business Papers. 8

1.5.       Order of Business. 12

1.6.       Public Access to Agendas and Business Papers. 13

PART 2 - AT THE MEETING: GENERAL.. 14

2.1 Coming Together. 14

2.2 Addressing Councillors. 15

2.3 Councillor Accountability - Open Decision-making.. 15

2.4 Business at Council Meetings. 16

2.5 Questions at council meetings. 16

2.6 Committee of the Whole. 17

2.7 Mayoral Minutes. 18

2.8 Voting.. 19

2.9 Divisions. 19

2.10 Casting Vote of Chairperson.. 20

2.11 Decisions of Council 20

2.12 Defamatory Statements. 21

2.13 Formalising Mayoral Actions. 22

2.15 Public Questions and Addresses. 23

2.16 Audio or Visual Recording of Meetings. 24

2.17 Use of Mobile Phones and Accessing the Internet during Council meetings prohibited   24

PART 3 - CONFLICTS OF INTERESTS.. 24

3.1 Pecuniary Conflicts of Interests. 24

3.2 Non Pecuniary Conflict of Interests. 25

PART 4 - QUORUM AND ATTENDANCE.. 26

4.1 Attendance at Meetings. 26

4.2 Quorum at Meetings. 28

4.3 Adjourning Meetings. 29

PART 5 - MOTIONS AND AMENDMENTS.. 30

5.1 Terminology. 30

5.2 Motions. 30

5.3 Amendments to Motions. 32

5.4 Foreshadowing Another Motion.. 33

PART 6 - RESCISSION MOTIONS.. 33

6.1 Changing earlier decisions. 33

6.2 Lodging rescission motions. 34

6.3 Dealing with rescission motions at meetings. 35

PART 7 - CLOSED PARTS OF MEETINGS.. 37

7.1 Who decides?.. 37

7.2 Subject matter of closed meetings. 37

7.3 Procedure. 38

PART 8 - ORDER AT MEETINGS.. 40

8.1 Standards of conduct. 40

8.2 Maintaining order. 41

8.3 Sanctions. 42

PART 9 - COMMITTEES, THEIR MEMBERS AND FUNCTIONS.. 43

9.1 Forming committees. 43

9.3 Meeting procedures. 45

9.4 General Manager’s role. 48

PART 10 - AFTER THE MEETING.. 48

10.1 Acting on council decisions. 48

10.2 Public availability of decisions. 49

PART 11 - MINUTES.. 49

11.1 Contents of Minutes. 49

11.2 Signing Council Minutes. 51

PART 12 - CODE OF MEETING PRACTICE.. 52

12.1 Status of code. 52

12.2 Effect of Regulation change. 53

PART 13 - WORKSHOPS.. 53

13.1 Purpose. 53

13.2 Attendance. 54

13.3 Procedure. 54

PART 14 - REFERENDUMS.. 55

14.1 Constitutional referendums. 55

PART 15 - SEAL.. 55

15.1 Purpose. 55

15.2 Procedure. 55

PART 16 - SUSPENDED COUNCILLOR(S). 56

16.1 Circumstances. 56

16.2 Effect. 57

 

PART 1 - BEFORE THE MEETING

1.1.                   Holding Meetings

1.1.1 When are ordinary council meetings held?

Ordinary council meetings are held on a regular basis, as decided by the council.  Council must meet at least ten (10) times a year, with each meeting being in a different month (s.365 of the Act). 

Cabonne Council has decided to hold Council meetings on the third Monday and Committee meetings on the first Monday of each month commencing at 9:30am.  Council may resolve to not meet in January of each year.  At the time of this review Council is trailing (for 3 months from November 2011) that Committee meetings commence at 5:00pm.

When public holidays applicable to Local Government fall on a Monday, which would normally be a Council or Committee Meeting day, Council will hold the Meetings on the Tuesday after the Public Holiday.

 

1.1.2 When is an extraordinary meeting held?

At least two (2) councillors can make a written request to the mayor to hold an extraordinary council meeting.  Councillors are required to complete the prescribed Form for this purpose.

The mayor can be one of the two councillors, but the mayor cannot call extraordinary meetings by him or herself without having a written request with another councillor’s signature.  The mayor must then ‘call’ the meeting, which is to be held as soon as practical but within fourteen (14) days after the request is made (s.366 of the Act).

Extraordinary meetings are not only held in ‘extraordinary’ circumstances.  These meetings may be held to deal with special business or where there is so much business to be dealt with that an additional meeting is required (cl.242 of the Regulation).

 

1.1.3 Where are council meetings held?

Normally meetings will be held at the Council Chambers, Bank Street Molong with any variation to be advertised if resolved to be held elsewhere.

1.2.                   Notice of Meetings

1.2.1 What notice has to be given to the public of ordinary council and committee meetings?

Council must give public notice of the time and place of ordinary council and committee meetings (s.9 of the Act).  The notice must be published in a local newspaper, indicating the time and place of the meeting (cl.232 of the Regulation).  Notice can also be given in other ways if it is likely to come to the public’s attention — for example, by a list or poster at the council’s office or the library.  More than one meeting may be advertised in a public notice.

Enough notice will be given so that the public can find out when and where the council is meeting.

1.2.2 What notice has to be given to councillors of ordinary council and committee meetings?

At least three (3) calendar days before a council or committee meeting, council’s general manager must send each councillor a notice of the time, place and business on the agenda of the meeting (s.367 of the Act; cl.262 of the Regulation).

1.2.3 What notice has to be given of extraordinary council and committee meetings?

Public notice must be given of the time and place of extraordinary council and committee meetings (s.9 of the Act), but this does not have to be by publication in a local newspaper (cl.232 of the Regulation).

If an extraordinary meeting is called in an emergency, less than the usual three (3) days notice can be given to councillors (s.367 of the Act). 

Initially the general manager will decide what an ‘emergency’ is. 

Whilst the Act does not define ‘emergency’, a definition is provided in this policy.

1.2.4 Is a council decision invalid if proper notice was not given for that meeting?

A council decision will still be valid even if proper notice had not been given for the meeting in which the decision was made (s.374 of the Act), provided a quorum was present.  If the meeting does not follow the Act, the Regulation, the Model Code or council’s Meeting Code there may be a breach of the Act (s.672), but this does not mean that the decision is invalid (s.374 of the Act).

Any person concerned about the running of a meeting can apply to the Land and Environment Court to stop or fix a breach of the Act (s.674(1) of the Act).

1.3.                   Times of Meetings

1.3.1 What time should council meetings start?

This is not covered in the Act or the Regulation.  Council has set the time of its meetings (at the September 2011 meeting) as Council meetings to be held commencing at 9.30am and (at the October 2011 meeting that for a three month trial commencing December 2011) Committee meetings are to be held from 5:00pm.

Council allows meetings to be held at other times in special circumstances subject to the required public notice being given.

In setting these times for its meetings Council’s foremost consideration has been the convenience of councillors.  Matters to be taken into account included:

·    employment or business commitments;

·    carer responsibilities;

·    safety issues (eg long travel distances at night).

There are good arguments for daytime meetings, for example, in large rural areas where councillors may have to travel long distances to attend meetings.  There are also good arguments for early evening meetings, allowing councillors and members of the public with daytime jobs to attend the meetings.

Council may on occasions set the time and place of a meeting to suit a particular interest group which may be expected to attend.

1.4.                   Agendas and Business Papers

1.4.1 What must be in a meeting agenda?

The general manager must send each councillor notice of the business to be dealt with at the upcoming meeting (the agenda) (s.367 of the Act).  Copies of the agenda must be available for the public at the council’s offices and at the meeting, free of charge (s.9 of the Act).  In addition council will place agendas on its website.

The agenda must indicate all business arising from a former meeting; any matter that the mayor intends to put to the meeting; and any business of which ‘due notice’ has been given (cl.240 of the Regulation).  The amount of time that is ‘due notice’ is consistent with the latest notice allowed for tabled reports (see 1.4.7) which are to be emailed to councillors by 5pm on the Friday preceding a meeting.

The general manager must include in the agenda for a meeting of the council any business of which due notice has been given (eg notice of motion, question on notice) except business that is unlawful (cl.240 of the Regulation).

1.4.2 What must be in the meeting business papers?

Business papers are documents relating to business to be dealt with at a meeting, for example, correspondence and reports from staff.  Business papers should be provided as early before the meeting as possible.  This gives councillors time to consider the issues and prepare for debate.

The business papers of Cabonne Council are to be in the hands of all Council Members no later than the Wednesday preceding the Ordinary Meeting.  A copy of the business papers shall be placed on Council’s website on the Thursday preceding the meeting.

Business papers for Council Meetings regularly distributed to the press and public are to be posted from Council's Molong Office on the Thursday preceding the meeting or be available for collection from Council's Molong Office on Friday morning prior to Council Meeting Day.

In order to achieve this, the Agenda for council meetings will close one week before the meeting and any other business shall be brought forward as prescribed by this Code.

In the event of tabled reports, Council has set different time frames – see 1.4.7.

In the event of the calling of an Extraordinary Meeting, the above procedures will not necessarily be able to be followed and those business papers will be available on the day of the meeting at the latest.

Council staff should, when preparing business papers which will be open to inspection by the public, avoid including personal identifiers such as names and addresses unless such information is required by legislation.  An example of when such information would be required is a development application, in which case the name and address of the applicant must be provided.

1.4.3 Can payments made by council be included in council’s business papers?

These payments are often called ‘cheque warrants’ and will list the names of persons and amounts paid by council for various reasons.

Cheque warrants do not have to be included in council’s business paper.  The requirement in the Local Government Act 1919 that cheque warrants be included in council’s business paper was removed in the Local Government Act 1993.

Cheque warrants usually contain ‘personal information’ covered by the Privacy and Personal Information Protection Act 1998 (PPIPA).  As a result, the Local Government and Shires Associations of NSW and Privacy NSW (the agency that looks after the PPIPA) believe that cheque warrants should not be included in business papers.  The Division agrees with this position and covers this issue in its Circular to Councils No. 01/14 “Public Access to Council Documents”, available from the Division’s website at www.dlg.nsw.gov.au.

Payments made by councils can be found in council’s quarterly review of the management plan (s.407 of the Act).  Councillors may request access to warrants outside of council meetings, but may be refused on privacy grounds.

Council does not include payments in its business papers.

1.4.4 Should development plans be included in the business paper?

Applications for development consent, called ‘development applications’, must come with different types of plans under the Environmental Planning and Assessment Act 1979.

The Act does not require a council to make copies of these plans available in its business papers.  Because of privacy and copyright issues, development plans (being the internal floor plan of domestic residences) will not be included in the business papers.  Instead, interested members of the public should be allowed to view these plans at the council’s office.  The plans could also be brought to council and committee meetings by council staff.

Copyright raises some very complex issues for councils, particularly in the area of development applications.  Copyright in development plans (‘a work’) is usually held by the person who drew them.  Copyright may be breached when a document is copied and distributed, but not when it is viewed or placed on public exhibition.

The Environmental Planning and Assessment Act 1979 and other State legislation do not allow a council to ignore copyright law when it is dealing with development plans.  It would be unwise for a council to give out copies of plans unless the copyright owner has given permission to do so.

The Office of the Information Commissioner has provided guidelines in relation to information to not be released: Guideline 3: “local councils – personal information contained in development applications: what should not be put on council websites”.

1.4.5 Can additional information to that in the business papers be provided to councillors?

Yes.  A council may direct its general manager to provide its councillors with additional information.  If this is done, it is suggested that the additional papers be marked separately from the business papers so as to avoid any confusion.  Additional information won’t be automatically available to the public like the business papers.

Any information given to a particular councillor in the performance of that councillor’s duties must also be available to any other councillor who requests it in accordance with council procedures (Clause 10.4 Model Code).

1.4.6 Can Staff Reports be included in the business paper?

The only reference to staff reports in the Regulation is in clause 243(3), which states that a recommendation made in a report by a council employee is, so far as it is adopted by the council, a resolution of the council.  The procedure for presenting staff reports at council meetings is not covered by the Regulation - it is a matter for council’s Meeting Code. 

Council requires staff reports to be prepared on each agenda item before the meeting is held.  Staff reports are expected to contain sufficient information to enable the council to reach an informed decision.

1.4.7 Can a Tabled Report be submitted at a Council meeting?

Whilst Council does not generally support the use of late tabled reports because of the lack of opportunity for the elected Councillors to fully consider such material, as a general rule, where necessary and urgent, Council is prepared to consider matters by way of tabled reports.

It is noted this policy provides notice different to that required by s.367 of the LG Act (at least 3 days clear notice) and is adopted subject to being utilised in extenuating circumstances.

Following a six (6) month trial (from June 2010) Council resolved the deadline for all tabled reports (documented) to be 5pm on the Friday preceding the monthly meetings and these late reports shall be emailed to all councillors and relevant staff by this time.

1.4.8 Can council staff change the wording of a committee recommendation when including it in the agenda?

The general manager has to make sure that certain information is in the agenda (cl.240 of the Regulation).  The general manager can decide how this information is to be expressed.

Committee recommendations to the council are usually in the form of an Item in the Council’s Determination section of the agenda including a report of each committee as an attachment with a recommendation:

“THAT the report and recommendations of the [insert name of Committee] Committee Meeting of Cabonne Council held on [insert date] be adopted.”

The recommendation shown in the agenda should be the same as the one decided by the committee.  When the council discusses the recommendation at the council meeting, it can adopt, amend and adopt, or reject the recommendation (cl.269 of the Regulation).  A council amendment could alter the meaning or intention of the recommendation, or simply correct its wording.

It should be noted that the Environmental Services and Sustainability Committee is delegated to resolve the approval of Development Applications, inter alia.  Accordingly the recommendation to Council in relation to this committee’s report is:

“THAT the report and recommendations of the Environmental Services and Sustainability Committee Meeting of Cabonne Council held on [insert date] be adopted and carried Motions be noted.”

1.4.9 How should a matter be treated if its subject is confidential and the motion will probably be discussed in the closed part of a meeting?

Certain matters, because of their confidential nature, may be considered in closed meetings.  Parts of council meetings may be closed to the public to discuss the types of matters referred to in section 10A(2) of the Act.  Although a council decides whether the public is to be excluded from part of a meeting, the general manager must first decide whether an item of business is likely to be discussed in a closed part of a meeting.

Section 9(2A) of the Act directs the general manager to indicate on the agenda (without details) that an item of business is likely to be discussed in a closed part of the meeting.  For example:

“Item 5: Annual tenders for goods and services”

The agenda will also indicate the reason the item will be dealt with in the closed part of the meeting.  For example:

“Item 5: Annual tenders for goods and services

Reason: Information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business (section 10A(2)(c)).”

The general manager must make sure that any details of this item are put in a confidential business paper (cl.240(4) of the Regulation).  A council can disagree that an item should be discussed in a closed part of the meeting.  In this case, the item would be discussed during the open part of the meeting.

Sections 9, 10A and 664 of the Act and Section 10 of the Model Code deal with confidential information.

1.4.10 Can a council decide that notices of motion on its agenda will not have any supporting notes or comments from staff?

Yes.  While clause 240 of the Regulation sets out what must be included in the agenda, each council can decide how its business is to be stated in the agenda and whether supporting notes or comments should come with notices of motion.  

Council has considered the benefits for making well-informed decisions by having extra information or expert views provided in the notes or in the comments.  This additional information would be publicly available and may assist community members in understanding the reasons for, and effects of, council decisions. 

Notwithstanding, Council does not require notices of motion on its agenda to have any supporting notes or comments from staff.

(See also 5.2.3 of this Meeting Code)

1.4.11 Can an agenda include provision for questions from councillors?

Yes.  Council agendas contain an item “Questions for next Meeting”.  Councillors are provided with an opportunity to ask questions or raise matters which can be and answered as meeting if possible or addressed by way of a report to the next Council Meeting.

Questions provided in this way, and responses to those questions, would be considered council business and as such council’s Meeting Code covers this issue.  As responses to questions on notice would be considered council business, responses could form the basis for further motions on the same topic at that meeting.

Agendas and business papers (other than business papers for a confidential item) must be available for the public to look at or take away (s9 of the Act).  Any non-confidential questions included in the agenda or business papers would also need to be available to the public.

For information relating to asking questions about matters on the agenda during the meeting, see 2.5 of this Meeting Code.

1.4.12 Is it appropriate to have as an agenda item “Questions Without Notice”?

No.  Having an agenda item, “questions without notice” is inconsistent with the provisions of the Regulation that require notice to be given of matters to be discussed at council meetings (cl 241).

Allowing questions without notice would avoid the notice provisions of clause 241 of the Regulation.  That clause enables all councillors and the public to be aware, by reading the agenda, of matters that will be raised at each meeting.  It also enables councillors to give careful thought to any pecuniary interest or conflict of interest they might have in a matter, rather than having to hastily confront an issue during the meeting.

However, questions can be proposed by giving notice to the general manager in the usual way (see 1.4.11) and can be asked during the meeting in relation to business already before council (see 2.5).  If the matter is genuinely urgent, and the matter is not on the agenda, it could be dealt with under clause 241(3) of the Regulation.  Cabonne Council’s agenda provides for Matters of Urgency – which are defined in this policy.

For information relating to asking questions about matters on the agenda during the meeting, see 2.5 of this Meeting Code.

Further information on questions is contained in clause 5.2.8 of the DLG’s Meeting CodeNo. 16.

1.4.13 Can an item of business which is on the agenda be removed from the agenda prior to the meeting?

No.  Once the agenda for a meeting has been sent to councillors an item of business on the agenda should not be removed from the agenda prior to the meeting.

If it is proposed that an item of business which is on the agenda not be dealt with at the meeting council should resolve to defer that business to another meeting or resolve not to consider the matter, as the case may be.

1.5.                   Order of Business

The order of business for meetings (except for extraordinary meetings) is generally fixed by council’s Meeting Code (cl.239(1) of the Regulation). 

If the Council did not have a Meeting Code, then the order of business could be decided by council resolution (cl.239 (1) of the Regulation).

The Business of Council is conducted in the following format: -

1.   Open Ordinary Meeting

2.   Procedural Reports

3.   Consideration of Mayoral Minute and Other Councillors Reports*

4.   Consideration of General Manager's Reports

a.  Determination

b.  Called Notation items

5.   Matters of Urgency

6.   Resolve into Committee of the Whole

7.   Consideration of Closed Items

8.   Resumption of Open Meeting

9.   Adoption of Closed Committee of the Whole Report

The order of business can be changed by the passing of a motion (with or without notice).  Unlike other motions, only the mover of a motion to change the order of business can speak for or against it in the meeting (cl.239 (1) of the Regulation).

* - Councillors reports should be written/typed and submitted to the minute taker for inclusion in the minutes.

1.6.                   Public Access to Agendas and Business Papers

1.6.1 Who can access information that is available publicly?

The GIPA Act gives a right of access to certain documents to any interested person, not just people who are residents or ratepayers of the council area.  Access does not depend upon the reasons for the request being made.  Council publishes these documents on its website for easy access.

1.6.2 Which council meeting documents can a person have access to and inspect?

Access for inspection of all council documents relating to meetings of Council is allowed being only limited in that information or documents relating to meetings closed to the public as provided by s10A of the Act are not accessible.  (See Part 7 of this Meeting Code.)

1.6.3 Is a person entitled to inspect the agenda and minutes of an advisory council committee that includes staff members or the public?

The agenda and minutes of an advisory council committee which have been included in a council meeting agenda (excepting a closed meeting) can be inspected and are available as part of the business papers on council’s website.

Access to the agenda and minutes of an advisory council committee which have not been included in a council meeting agenda may be allowed unless inspection would be contrary to the public interest as defined by the GIPA Act.

1.6.4 Can a council charge a reasonable copying fee or postage for providing copies of its agenda and business papers?

Copies of the current agenda and associated business papers are made available to the public to look at or take away, and must be free of charge (s.9 of the Act).

GIPA legislation aims to foster and promote responsible and representative government that is open, accountable, fair and effective by encouraging proactive and informal release of information free of charge or at the lowest reasonable cost.  Accordingly, most government information should be available free of charge.  Under certain circumstances charges may be applied – refer to the OIC’s ‘GIPA Act fees and charges’ fact sheet.  In the first instance the requestor should be encouraged to download a copy of the business papers from Council’s website or receive an email version of the business papers.

1.6.5 Are papers created or received by councillors classified as council documents?

Council documents include those created or received in the course of the official duties by councillors.  Information generated by, in the possession of, or under the control of the councillors that concerns their civic or council duties under any Act is considered by the Division to be a document of the council.  These documents may include information that does not form part of the council’s official filing system.

1.6.6 Can councillors copy information additional to the business papers (such as plans and legal opinions from council files) and give it to the public?

Section 664(1) of the Act states that “a person must not disclose any information obtained in connection with the administration or execution of the Act unless that disclosure is made:

(a)   with the consent of the person from whom the information was obtained; or

(b)   in connection with the administration or execution of the Act; or

(c)   for the purposes of any legal proceedings arising out of the Act or of any report of any such proceedings; or

(d)   in accordance with a requirement imposed under the Ombudsman Act 1974 or the Government Information (Public Access) Act 2009 , or

(e)   with other lawful excuse.”

There is a maximum penalty of $5,500 for breach of this provision.

Provided the additional information is not part of the business paper and is made publicly available, it can only be given out in accordance with section 664(1) of the Act.  It is also important to remember copyright law when making copies of information.

Council has documented procedures for public access to documents as provided under the Government Information (Public Access) Act 2009 and subject to the Privacy and Personal Information Protection Act 1998

Section 10 of the Model Code talks about access to and use of personal, council and confidential information.  The general manager or public officer, rather than individual councillors, are the appropriate people to assist members of the public to access documents.

PART 2 - AT THE MEETING: GENERAL

2.1 Coming Together

2.1.1 How may council open its meetings?

A council may open its meetings with a prayer if it chooses.  This decision should be made after considering the religious beliefs and views of the councillors and the community.  This issue could be included in council’s Meeting Code.  Council has not determined to open its meetings with a prayer.

A council may also choose to include an Acknowledgement of Country.  Acknowledgement of Country is where people acknowledge and show respect for the Aboriginal Traditional Custodians of the land upon which the event is taking place.  It is a sign of respect.

Council will include an Acknowledgement of Country on special/formal occasions; at the September Council Meeting for the Election of Mayor & Deputy Mayor; and at other occasions at the discretion of the Mayor. 

2.1.2 Who can sit at the meeting tables?

The general manager can attend, but not vote at, council meetings.  The only exception to this is when the meeting is dealing with the general manager’s employment or standard of performance — then the council may resolve to exclude the general manager from the meeting (s.376 of the Act).

Sitting at a meeting table during a Council meeting, will be as follows:

The Mayor will occupy the central seat facing other councillors and the gallery.  To his immediate right will sit the General Manager and then the Director of Finance & Corporate Services.  To the Mayor’s immediate left will sit the Director of Engineering & Technical Services and then the Director of Environmental Services.

Councillors will sit in the ‘horseshoe’ arrangement of chairs at a seat determined by themselves at the first meeting following an election, and then remain in the same chair for the remainder of the term.

It is important to remember that if a councillor is anywhere in the room where the council meeting is being held, they are considered to be ‘present’ for the purposes of voting (cl.251(1) of the Regulation).  This means that if they are in the room but do not vote on an issue (for example, by staying silent) their vote is taken as against the motion (cl.251(1) of the Regulation).

2.2 Addressing Councillors

2.2.1 How should councillors be addressed at council meetings?

Councillors are to be addressed as “Councillor [surname]”, whether the councillor is male or female.

If a councillor has a title (for example the Honourable or the Reverend); and whether or not the councillor has a qualification (for example, Doctor of Philosophy) a councillor’s title or qualification will be included when addressing them (for example, ‘Councillor Doctor X’). 

2.2.2 How should the chairperson be addressed at council meetings?

If the chairperson is the mayor they are usually addressed as ‘Mr Mayor’ or ‘Madam Mayor’.  When the chairperson is not the mayor, they would be addressed as ‘Mr/Madam Chair’ or ‘Mr/Madam Chairperson’. 

2.3 Councillor Accountability - Open Decision-making

Open decision-making is an important part of local government and should be the rule rather than the exception.  The ability of the public and media to attend and watch council and committee meetings — seeing the deliberations and decisions of elected representatives — is essential for councillor accountability.  This is recognised by the legislation, which encourages open decision-making at council meetings.

Councillors should be prepared to state their views publicly on both controversial and routine issues.  Informed voting by electors is best achieved when they can observe the speeches, debate and voting patterns of their councillors.

Council decisions should be based on fairness, impartiality, objectivity and consideration of all the issues (Sections 4 and 6 of the Model Code).  Open decision-making helps achieve this, as well as preventing misunderstanding and unfounded criticisms from the public.

2.4 Business at Council Meetings

2.4.1 What business can be discussed and dealt with at council meetings?

Business which a councillor has given written notice of within the required time before the meeting (cl.241(1)(a) of the Regulation), and of which notice has been given to councillors (s.367 of the Act) can be dealt with at a meeting.

Business that is already before the council or directly relates to a matter that is already before the council (cl.241(2)(a) of the Regulation).  For example, business in a report made by council staff in response to an earlier council request for a report;

·    The election of a chairperson for the meeting (cl.241(2)(b) of the Regulation);

·    A matter raised in a mayoral minute (cl.241(2)(c) of the Regulation);

·    A motion to adopt committee recommendations (cl.241(2)(d) of the Regulation);

Business ruled by the chairperson to be of great urgency (cl.241(3) of the Regulation) but only after a motion is passed to allow this particular business to be dealt with.  This motion can be moved without notice.

Business which does not fall within any of the above categories should not be transacted at a meeting.

2.4.2 What business can be discussed at extraordinary council meetings?

In general, only matters stated in the meeting agenda may be dealt with at an extraordinary council meeting.  Other business ruled by the chairperson to be of great urgency may also be dealt with at the meeting, but only after the business in the agenda is finished (cl.242 of the Regulation).

2.5 Questions at council meetings

2.5.1 Can Questions be asked of councillors or staff concerning a matter on the council agenda?

A councillor may ask a question of another councillor or a staff member.  A question to a councillor must be put through the chairperson.  A question to a staff member must be put through the general manager.

Any person to whom a question is put is entitled to be given reasonable notice of the question so as to allow that person time to research the matter, for example by referring to documents or making enquiries of other persons.

Questions must be put succinctly and without argument.  The chairperson must not allow any discussion on any reply or refusal to reply to such questions (cl 249 of the Regulation).  It is considered that staff refusal to reply would be in circumstances where they require further time to research the response to the question.  In this case, it would be good practice for council and/or the general manager to identify a timeframe for the response so that the period to respond is not open-ended.

When further time is required to respond to a question asked during a council meeting, it would be good practice to record the question and responses in the minutes.

2.5.2 Can Questions be asked of councillors or staff concerning a matter that is not on the council agenda?

Allowing questions without notice is inconsistent with the provisions of clause 241(1) of the Local Government (General) Regulation 2005 which requires notice to be given of matters to be raised at council meetings.

The purpose of the notice requirement is to enable all councillors and the public to be aware, by reading the agenda for the meeting, of matters that will be raised at the meeting.  This in turn promotes openness and transparency in the conduct of council meetings.

The notice requirement also ensures that questions, when asked, are appropriately recorded and responded to.

If the subject matter of a question is genuinely urgent and the question is not on the agenda, the question could be raised under clause 241(3) of the Regulation.  That clause allows a matter to be raised before council, despite notice not having been given, if:

·    A motion is passed to have the matter brought before the meeting; and

·    The matter is ruled by the chairperson to be of great urgency.

The Division of Local Government considers that it is acceptable for a council to adopt a practice of allowing councillors, just prior to the end of a meeting, to raise questions on the understanding that the answers will be provided at the following meeting.

Council has adopted this practice (June 2010 meeting).   An agenda item “Questions for Next Meeting” has been added to each agenda, immediately prior to the conclusion of the Ordinary meeting.  This provides a means of giving notice of the question for the following meeting, provided that there is sufficient time between the two meetings to meet the notice requirements of clause 241.  When such questions are listed, there is nothing preventing an answer being given straight away, if it makes sense to do so.

2.6 Committee of the Whole

2.6.1 What is the committee of the whole?

During the course of a council meeting a council may resolve itself into the ‘committee of the whole’ under section 373 of the Act.  That part of the council meeting then becomes a committee meeting.  The only advantage of a council forming a committee of the whole is that by reason of clause 259 of the Regulation the limits on the number and duration of councillor speeches referred to in clause 250 of the Regulation do not apply.

If at the time council resolves itself into the “committee of the whole” the meeting was open to the public then the meeting will remain open to the public unless council resolves to exclude the public under section 10A of the Act. (see also 7.3.3 of this Meeting Code )

2.6.2 May council resolutions be made by the committee of the whole?

No.  The committee of the whole may not pass a council resolution.  It makes recommendations to council in the same way as any other committee of council.  Once the committee has completed its business and the council meeting has resumed council considers any recommendations made by the committee of the whole.

Cabonne Council’s procedure is to resume the Ordinary (open) meeting and then resolve to adopt the recommendations of the Closed session of the Committee of the whole.

2.7 Mayoral Minutes

2.7.1 What is a mayoral minute?

The mayor may put to a meeting (without notice) any matter which the council is allowed to deal with or which the council officially knows about (cl.243(1) of the Regulation).  This would cover any council function under the Act or other legislation, or any matter that has been brought to the council’s attention, for example, by letter to the mayor or the general manager.

This power to make mayoral minutes recognises the special role of the mayor.  A mayoral minute overrides all business on the agenda for the meeting, and the mayor may move that the minute be adopted without the motion being seconded.

Mayoral minutes should not be used to introduce, without notice, matters that are routine, not urgent, or need research or a lot of consideration by the councillors before coming to a decision.  These types of matters would be better placed on the agenda, with the usual period of notice being given to the councillors.

All Mayoral minutes must be tabled at the meeting and distributed to all Councillors prior to further consideration (May 2010 meeting).

2.7.2 Can mayoral minutes be introduced at council committee meetings?

A council committee consisting entirely of councillors must run its meetings as set out in the Meeting Code (s.360(3) of the Act).

2.7.3 Can a mayoral minute be amended?

While not addressed in the Regulation, mayoral minutes may be altered in practice.  Changes to mayoral minutes should avoid making changes that will introduce, without notice, matters which need research or a lot of consideration by the councillors before coming to a decision.


 

2.8 Voting

2.8.1 What are the voting entitlements of councillors?

Each councillor has one (1) vote (s.370 of the Act).  A councillor must be present (in person) at the council or committee meeting to vote (cl.235 of the Regulation).

2.8.2 How is voting conducted?

Voting at a council meeting is to be by ‘open means’, for example, by voices or show of hands (cl.251(5) of the Regulation).  The only exception is voting on the position of mayor or deputy mayor.

Councils may use an electronic device to record the votes cast by councillors, but the requirement that voting take place by ‘open means’ still applies.  It will depend on the type of device used as to whether it is voting is by ‘open means’.  Votes in writing are not permitted.

2.8.3 Can voting be by proxy or other means?

A councillor must be present (in person) at the council or committee meeting to vote (cl.235 of the Regulation).  Councillors cannot participate in a meeting by video-conferencing or tele-conference.  There are no ‘proxy’* votes at council or committee meetings.

*- A ‘proxy’ is a system where an absent councillor can cast his or her vote by giving their vote to another councillor.

2.8.4 Can a councillor choose not to vote on a motion?

Although a councillor does not have to vote, voting at council meetings is one of the responsibilities of a councillor and should be regarded seriously.

Councillors who are not present for the vote are not counted as having voted.  A councillor will be absent from voting if they have physically left the meeting room.  If in the room, but choose not to vote or say they are abstaining from voting, it is taken that the councillors has voted against the motion (cl.251(1) of the Regulation).  This will be the case even if a councillor is sitting away from the meeting table, such as in the public forum.

Councillors with a pecuniary interest in a matter cannot be present at, or in sight of, the meeting that is considering the matter or voting on it (s.451(2) of the Act).  The only exception to this is where the Minister has given permission for such a councillor to be present in the meeting and to vote on the issue (s.458 of the Act).

2.8.5 Can a councillor who votes against a motion have that vote recorded?

Yes.  A councillor can request to have their name recorded in the minutes to show that they have voted against a motion (cl.251(2) of the Regulation).

2.8.6 Can a council record votes on matters in its minutes?

Yes.  Council can choose to record the voting on all matters in its minutes.  Council records a division in relation to all Planning matters (see 2.9.2) and when requested by councillors (2.9.1).

2.9 Divisions

2.9.1 What is a Division?

A ‘division’ is a means by which the support or objection to a motion is easily seen and is recorded.

A minimum of two (2) councillors must rise and call for a division on a motion.  The chairman must then ensure that a division takes place immediately (cl.251(3) of the Regulations).

2.9.2 Are there any other occasions when a division is required?

Yes.  A division is always required whenever a motion for a planning decision is put to the vote at a meeting of council or a meeting of a council committee (section 375A of the Act).

2.9.3 How is a division conducted?

The general manager must ensure that the names of those who voted for the motion and the names of those who voted against it are recorded in the minutes (cl.251(4) of the Regulation).

The method of conducting a division is for the Chairperson to declare that a division is called (once at least 2 councillors rise and demand a division) or as required by section 375A of the act and then to ask for a show of hands of those voting in favour of the motion and call the names.  The Chairperson would then ask for a show of hands for those voting against the motion and call the names.  In this way, the meeting can both see and hear how councillors are voting on the matter.  This also enables the general manager to ensure that all councillors who are present at the meeting have their vote recorded.

2.10 Casting Vote of Chairperson

2.10.1 When can the chairperson exercise a casting vote?

Each councillor is entitled to one vote (s.370 of the Act).  If the voting on a matter is equal, the chairperson has a second or ‘casting’ vote (s.370 of the Act).  This is in addition to any vote the chairperson has as a councillor.

The Act uses the word ‘second’ vote, which indicates that the chairperson has already voted once before using their casting vote.  Usually the chairperson casts a vote, and if the votes are tied, the chairperson then uses a casting vote to decide the matter.

2.10.2 How should a casting vote be exercised?

There is nothing in the legislation saying how a casting vote is to be used.  It is a matter for the chairperson as to how they will vote, after taking into consideration all relevant information.  They do not need to vote the same way on their first and second vote.

Should the chairperson fail to exercise a casting vote the motion being voted upon would be lost.

2.11 Decisions of Council

2.11.1 What is a decision of a council?

Once a motion is passed by a majority of votes at a meeting at which a quorum is present, the motion becomes a decision of the council (s.371 of the Act).  This is sometimes termed a ‘resolution’.  A quorum is the minimum number of councillors necessary to conduct a meeting.

2.11.2 Are council decisions affected when councillors change?

In legal terms, a local council is a body corporate of the State with perpetual succession and the legal capacity and powers of an individual (s.220 of the Act).  This means that the council is legally separate from the councillors on it, and that council decisions are not affected by changes in its councillors.

2.11.3 Are there any limits on the decisions a council can make before an ordinary election is held?

The Act does not impose such limits.

While the Act does not impose such limits, like Commonwealth and State Governments, councils are expected to assume a “caretaker” role during election periods to ensure that major decisions are not made which limit the actions of an incoming council.

It is the Division’s practice, prior to ordinary elections, to issue a circular to councils reminding them of this caretaker convention.  Circular to Councils No. 08-37 “Council Decision-making Prior to Ordinary Elections” was issued prior to the 2008 ordinary elections and is available on the Division’s website at www.dlg.nsw.gov.au.

2.11.4 Are there any restrictions on a council making decisions after an ordinary election?

No. Although the decisions of a council do not lapse after an election is held, there will be some opportunities for the new council to review earlier decisions.

2.11.5 When do the councillors, including the mayor, start and finish holding office?

All councillors start holding office on the day the person is declared to be elected (s.233(2) of the Act).  All councillors, other than the mayor, stop holding office on the day of the ordinary election (s.233(2) of the Act).

The mayor holds office until his or her successor is declared elected (s.230(3) of the Act).  This applies to both a mayor elected by the public (popularly elected) and a mayor elected by councillors, even if the (outgoing) mayor has not been re-elected as a councillor.  It is expected that the outgoing mayor would only exercise the powers that can be exercised by the mayor during such periods.  For guidance on this issue, see Circular to Councils No. 08-46 “Mayor’s Role After Ordinary Election” available on the Division’s website at www.dlg.nsw.gov.au.

Council should treat its responsibility for electing a mayor seriously.  It should make sure that annual mayoral elections will be held as required under the Act.  This can be done through the early fixing (through a council resolution) of a date for mayoral elections, to ensure a quorum.

An election of the mayor by councillors must be held within three (3) weeks after an ordinary election (s.290(1)(a) of the Act).  The outgoing mayor would be entitled to chair the meeting until the new mayor is elected.  The outgoing mayor can do this even if he or she has not been re-elected as a councillor.

The procedure for electing a new mayor is set out in schedule 7 of the Regulation (cl.394 of the Regulation)

If the outgoing mayor chooses not to chair the meeting to elect the new mayor, the chairperson should be a councillor elected by the council (cl.236 of the Regulation).

2.12 Defamatory Statements

2.12.1 Can a councillor make defamatory statements at a council meeting?

The NSW Ombudsman publication Better Service and Communication for Councils, available at www.ombo.nsw.gov.au, provides information about defamation.  It states:

“A statement may be defamatory of a person if it is likely to cause an ordinary reasonable member of the community to think less of a person or to shun or avoid the person”.

Councillors, staff and members of the public can seek legal compensation, apology etc if they are defamed.

Councillors acting within their official capacity at meetings of council or council committees have a defence of ‘qualified privilege’ to actions in defamation.  This recognises that you may need to speak freely and publicly in carrying out your duties.  However qualified privilege needs to be treated with great caution.  It only covers statements made at a council or committee meeting when you are carrying out your duties and on business relevant to the council.  Statements also need to be made with good intentions, not malice.

A statement made outside a council or committee meeting will not be protected by qualified privilege, but may be protected under the Defamation Act 1974.  You should be guided by your own legal advice on defamation issues.

2.12.2 What happens if a councillor makes a possibly defamatory statement at a council meeting?

The chairperson of a council meeting is responsible for making sure that the council carries out its meetings in line with its Meeting Code and any relevant legislation.  One part of this is maintaining order at meetings.  This would include requiring a councillor to apologise for insults, personal comments, or implying improper motives with respect to another councillor.

The chairperson may call a councillor to order whenever he or she believes it is necessary to do so.  The chairperson may ask you to take back the statement and apologise.  If you refuse to do this, you may be expelled from the meeting for an act of disorder (cl.256(3) of the Regulation and s.10(2) of the Act).  This does not prevent legal action from being taken against you by the council or by another councillor, a member of council staff or a member of the public under the Defamation Act 1974 or the common law.

Council has authorised the chairperson of a meeting under s10 (2) of the Act and cl 258 of the Regulation.

2.13 Formalising Mayoral Actions

When necessary, the mayor may exercise the policy-making functions of the council between meetings (s.226 of the Act).  The mayor is to report his or her actions taken in this regard to the next available council meeting for “endorsement” during the Mayoral Minute.

2.14 Petitions

2.14.1 What procedure applies to petitions from members of the public?

The Act and the Regulation do not refer to the submission or tabling of petitions to a council.  The General Manager will submit a report to the next available council meeting any petition received.  However, a petition will not be tabled if, in the opinion of the General Manager:

1.   it does not contain the content details outlined below, or

2.   it is defamatory, or

3.   any action it proposes is unlawful.

Petitions must contain the following content detail:

a)   a heading on each page indicating the subject matter of the petition and the action sought from Council.

b)   a brief statement on each page of the subject matter and the action requested.

c)   name, address and signature of those people who support the petition.

2.14.2 What details of petitions should be included in agendas and business papers?

Care should be taken to follow the Privacy and Personal Information Protection Act 1998 (PPIPA) with respect to the use and communication of personal information contained in petitions.  Section 18 of PPIPA provides that a council may not communicate personal information unless it is directly related to the reason why the information was collected, and the council has no reason to believe that the person concerned would object.

Communication of the information can also take place if a person is likely to have been aware (or has been made aware in line with section 10 of PPIPA) that this type of information is usually told to another person or organisation.

The question of whether a petition may be published in council’s business papers can only be decided by reference to the subject matter and wording of the petition; how council advertises matters in its business papers; and what instructions council staff provide to people making a petition to council.

2.15 Public Questions and Addresses

2.15.1 Can the public ask questions or address the council at council meetings?

There is no automatic right under the Act or the Regulation for the public to participate in a council meeting, either by written submission or oral presentation.  This includes being able to ask questions or address council meetings, or to comment on matters during meetings.

However, providing some form of public participation in council meetings is good practice.  If participation is permitted, councils should consider giving basic guidance to potential speakers on meeting processes and practices. 

Council’s policy is that members of the public be given every opportunity to address Council.

Members of the public shall upon prior request be allowed to address Council and or Committee meetings which are open to the public and be allocated 5 minutes to do so.  A written request should be made to the General Manager by Monday 2 weeks prior to each meeting.

Speakers should be asked not to make insulting or defamatory statements, and to take care when discussing other people’s personal information (without their consent).

2.15.2 Can a councillor speak to the council as a resident or ratepayer in the public access section of a meeting?

Residents or ratepayers can speak to council if allowed by the chairperson of the meeting. 

Given the opportunities for a councillor to raise matters at a meeting through notices of motion and questions, there is no provision to allow a councillor to speak to the council from the public access section.

Councillors who aren’t allowed to take part in a discussion because of a pecuniary interest cannot escape this by addressing the meeting as a ‘resident’ or ‘ratepayer’.  Section 451(2) of the Act states that a councillor must not be present at or in the sight of the meeting of council at any time during which the matter (for which the councillor has declared a pecuniary interest) is being considered, discussed or voted on.  This has been interpreted as excluding councillors in both their official capacity and as a member of the public.

Exclusion from speaking to a matter which is the subject of conflict goes beyond discussions on a formulated motion or resolution - see (former) Department of Local Government Circular to Councils No. 05/17 “Codes of Meeting Practice - Councillors Invited To Speak After Declaring A Pecuniary Interest In A Matter” available from www.dlg.nsw.gov.au.

2.16 Audio or Visual Recording of Meetings

A person may only use a recording device to record the meeting of a council or its committees with permission (cl.273 of the Regulation).  A council could decide to record its meetings to ensure the accuracy of its minutes or for some other council function.

Council does not record its meetings for minute taking purposes, notwithstanding that the media may attend open meetings.

2.17 Use of Mobile Phones and Accessing the Internet during Council meetings prohibited

Councillors are required under the Act to exercise a reasonable degree of care and diligence in carrying out their functions (s.439 of the Act).  Accordingly full attention should be focused on the meeting and the matters at hand.  Use of mobile phones or accessing the Internet for email or other purposes during a meeting is not conducive to meeting this obligation. 

All mobile phones are to be turned off unless permission has been granted by the Chair to have the phone on silent mode due to exceptional circumstances.  The Chair shall decide if the circumstances advised by a councillor or staff member warrant the phone being on – “exceptional circumstances” could include receiving the results of a medical test, or such. 

All other persons present at a Council or committee meeting will have their mobile phones turned off.

Under no circumstances will a councillor access Internet for email or other purposes during a Council or committee meeting.

 

PART 3 - CONFLICTS OF INTERESTS

(PECUNIARY AND NON-PECUNIARY)

3.1 Pecuniary Conflicts of Interests

3.1.1 What is a pecuniary conflict of interests?

The Act, the Regulation, the Model Code and the Model Code Guidelines provide guidance on pecuniary (or money-related) conflicts of interests.  These place obligations on councillors, council delegates and council staff to act honestly and responsibly in carrying out their functions.  They require that the pecuniary interests of councillors, council delegates and other people involved in making decisions or giving advice on council matters be publicly recorded.  They also require councillors and staff not to deal with matters in which they have a pecuniary interest.

Section 442 of the Act defines pecuniary interest as:

“… an interest that a person has in a matter because of the reasonable likelihood or expectation of appreciable financial gain or loss to the person.”

Section 443 of the Act provides that a person has a pecuniary interest in a matter if the pecuniary interest is that of any of the persons listed in that section.  Those persons include spouses, de facto partners, relatives, partners and employers.

A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it is unlikely to influence that person’s decision-making (see s.442 of the Act), or if the interest is of a kind described in section 448 of the Act.

If a person is not aware of the relevant pecuniary interests of the other persons listed in section 443 then that person is not taken to have a pecuniary interest in the matter (s.443(3) of the Act).  Similarly, just because someone is a member of, or is employed by, a council, a statutory body or the Crown, they are not considered to have a pecuniary interest (s.443(3) of the Act).  This principle also applies to someone who is a member of a council, a company or other body that has or may have a pecuniary interest in the matter, so long as that person has no beneficial interest in any share of the company or body (s.443(3) of the Act).

3.1.2 What procedure must be followed if a councillor has a pecuniary interest in a matter before council?

A councillor or a member of a council committee who has a pecuniary interest in any matter before the council, and who is present at a meeting where the matter is being considered, must disclose and identify the nature of the interest to the meeting as soon as practical (s.451 of the Act).

A councillor must not be present at or in the sight of the meeting of council at any time during which a matter to which they have declared a pecuniary interest is being considered (s.451(2) of the Act).  This has been interpreted as excluding councillors in both their official capacity and as a member of the public.  Councillors barred from taking part in a discussion because of a pecuniary interest cannot escape this by addressing the meeting as a ‘resident’ or ‘ratepayer’.

This exclusion is from all discussions on the matter, not just discussions on a formulated motion or a resolution on the matter — see (former) Department of Local Government Circular to Councils No. 05/17 “Codes of Meeting Practice — Councillors Invited To Speak After Declaring A Pecuniary Interest In A Matter” available from www.dlg.nsw.gov.au.

A disclosure made at a meeting of a council or council committee must be recorded in the minutes of that meeting (s.453 of the Act).  However, proceedings will not be invalid just because a councillor or committee member does not identify a pecuniary interest at the meeting in accordance with section 451 of the Act.

Sometimes it is difficult to tell when one has a pecuniary interest that must be disclosed.  Judgments of the Pecuniary Interest and Disciplinary Tribunal specifically dealing with this issue are available from the Division’s website at www.dlg.nsw.gov.au to help in this process.

Part 4.2 of the Model Code Guidelines also provides guidance on conflicts of pecuniary interests.  Example scenarios are given in the Guidelines for issues such as club/organisation membership.

3.2 Non Pecuniary Conflict of Interests

3.2.1 What is a non-pecuniary conflict of interests?

Part 4.2 of the Model Code Guidelines also gives examples of non-pecuniary conflicts between public duty and private interest.  These conflicts exist where a reasonable and informed person would perceive that a councillor or designated person could be influenced by a private interest when carrying out one’s public duty (Clause 7.1 of the Model Code).

The Model Code recognises that because of their official status, councillors have the power to make decisions or act in ways that can benefit their own private interests.  Areas of potential conflict include: club/organisation membership, personal relationships, sponsorship, lobbying, caucus votes, dealings with former council officials, and political donations.  The Model Code Guidelines provide information and examples to assist one in identifying conflicts of interests. 

3.2.2 What procedure should be followed if a councillor has a non-pecuniary conflict of interests?

A non-pecuniary conflict of interests is a conflict between a councillor’s private interest in a matter being considered by the council, and his or her interest as a civic official.  The Model Code prescribes procedures to cover such conflicts, which need to be adopted and applied by councils.

There are three types of non-pecuniary conflicts of interests.  They are ‘significant’, ‘less than significant’ and ‘political donations’.  Clauses 7.13 - 7.25 of the Model Code describes the procedures that need to be followed in respect of each type.

If one has a non-pecuniary interest that conflicts with your public duty one must disclose that interest fully in writing even if it is not significant.  One must do this as soon as practicable (clause 7.13 of the Model Code).

The disclosure of a conflict must be recorded in the minutes of the meeting and a record kept by council.  The disclosure recorded in the minutes constitutes written disclosure as required by clause 7.13 of the Model Code.

If one is aware in advance of a meeting of a possible non-pecuniary conflict of interests in a matter but remain in doubt, one is encouraged to seek legal or other appropriate advice.

The Model Code and Model Code Guidelines have been developed to assist councils implement, review and enhance their Meeting Code and Code of Conduct in regard to conflicts of interests.  The Model Code Guidelines provide guidance, better practice suggestions, examples and a list of relevant resources.

PART 4 - QUORUM AND ATTENDANCE

4.1 Attendance at Meetings

4.1.1 Can a councillor participate in a council meeting by video or tele-conferencing?

No.  A councillor must be personally present in order to participate in a council or committee meeting (cl.235 of the Regulation).

4.1.2 What happens if a councillor misses too many council meetings?

If a councillor is absent from three consecutive ordinary meetings of the council without the leave of the council having been granted then the councillor automatically vacates office (section 234(1)(d) of the Act).  Leave can only be granted by council prior to the meeting or at the meeting concerned.

This does not apply if the councillor has been suspended from office by the Local Government Pecuniary Interest and Disciplinary Tribunal under section 482 of the Act.

4.1.3 I am a councillor and I can’t attend a council meeting.  What should I do?

You should seek leave of absence from the council.  Leave of absence may be granted to councillors at the discretion of the council (s.234(1)(d) of the Act).  It is expected that you will attend all council and relevant committee meetings.  However it is acknowledged that sometimes there are good reasons why you may miss a meeting.

Leave of absence may be granted by the council prior to the meeting, or at the meeting.  An application for leave does not need to be made in person and the council may grant the leave in your absence (s.234(2) of the Act).

It would be wise to make the application in writing and state the reasons for the leave so that the council may consider it.  Written applications should be lodged with the general manager.  You should identify (by date) the meetings from which you will be absent.

If you intend to attend a meeting from which you have been granted leave of absence you should if practicable give the general manager at least two days notice of your intention to attend (cl 235A of the Regulation).  You should not assume that the council will grant you leave.  The council has discretion whether or not to grant a leave of absence.  It is expected that in considering such an application the council will act reasonably given that there are consequences for failing to attend council meetings.  There may also be consequences in terms of the public’s perception of both the council and the applicant.

4.1.4 Is tendering an apology the same as applying for a leave of absence?

No.  The tendering of an apology is an accepted convention by which those present at a meeting are notified that the person tendering the apology will not be attending the meeting.  It is a form of courtesy to those attending the meeting.  Its purpose is also to aid the efficient conduct of meetings by informing the chairperson as to who will not be attending.  This avoids delaying the opening of a meeting pending the arrival of such persons.

The acceptance of an apology is a positive acknowledgement of the courtesy of the person who tendered it.  It does not amount to a grant of a leave of absence.

Although the practice of tendering of apologies is recognised as a component of good meeting practice, it has no recognition in either the Act or the Regulations.

By contrast, a leave of absence is a formal permission granted by way of council resolution to a councillor excusing that councillor’s attendance at a particular meeting.  It is sought by way of application to the council.  It is recognised in both the Act and in the Regulation.

4.1.5 Is a councillor required to remain at a council meeting while council business is conducted?

There is no requirement that a councillor remain at a council meeting while business is being conducted.  However, it is expected that a councillor would attend and remain at council meetings (unless prevented by illness or pressing circumstances) in order to responsibly perform the role of a councillor (s.232 of the Act) and to assist the council in complying with its charter (s.8 of the Act).

Councillors must follow the council’s Code of Conduct (s.440 of the Act).  The Act requires councillors to act reasonably and responsibly in the performance of their duties (Section 6 Model Code).  In addition, section 439 of the Act requires councillors to exercise reasonable care and diligence in carrying out their civic functions.  Attending and remaining at meetings is an important part of this.

4.2 Quorum at Meetings

4.2.1 What is a quorum?

A quorum is the minimum number of councillors necessary to hold a meeting.  This minimum is set so that decisions are made by an appropriate number of councillors.  Provided a quorum of councillors is present, council business can go ahead.  If a quorum is not reached and maintained, the meeting cannot be held.

4.2.2 What are the quorum requirements for council meetings?

A quorum is present if a majority of the councillors who hold office for the time being are present at the meeting (s.368 of the Act).

In determining the number of councillors for the purposes of calculating quorum any casual vacancies in councillor offices and any suspended councillors are not to be counted.

By way of example, in the case of a council with seven (7) councillors, four (4) councillors must be present to form a quorum.  If one of those councillors has been suspended from office and another has resigned then five (5) councillors hold office for the time being and the quorum will be three (3).

4.2.3 How do pecuniary interests affect quorum?

The case of Levenstrath Community Association Incorporated v Council of the Shire of Nymboida [1999] NSWSC 989, confirmed that a councillor who is not capable of voting on the business before the council (by reason of having disclosed a pecuniary interest in a matter) is regarded as being absent from a meeting for the purpose of determining whether or not a quorum is present.  In other words the councillor is regarded as holding office but not as being present at the meeting.

If so many councillors declare a pecuniary interest in a matter that the council is unable to form a quorum to deal with the business before it, the councillors concerned may apply to the Minister to allow them to participate in the discussion and vote on that matter (s.458 of the Act).  This recognises that council business must sometimes proceed even though the decision is being made by councillors with pecuniary interests declared.  The Minister does not grant such exemptions lightly.

4.2.4 What procedure must be followed if the meeting lacks a quorum?

A meeting may lack a quorum either by an insufficient number of councillors turning up to the meeting or by a councillor or a number of councillors leaving the room during the course of the meeting.

If a quorum is not present the meeting must be adjourned to a time, date and place fixed by the chairperson, or (in the chairperson’s absence) by a majority of the councillors present, or (failing that) by the general manager.

The general manager must record the absence of a quorum (including the reasons for the absence of a quorum) in the council’s minutes.  The names of the councillors present must also be recorded (cl.233 of the Regulation).

(See also 5.2.9 of this Meeting Code)

4.2.5 What is the effect of councillors meeting without a quorum?

Without a quorum the meeting is not a meeting of the council.  Resolutions cannot be made. Any action taken will have no legal validity.

4.2.6 Can a council later ratify a resolution made by councillors at a meeting without a quorum?

No.  A quorum of councillors must be present before a council decision can be validly made (s.371 of the Act).  If a resolution is purportedly passed when there is no quorum, it is invalid.  It cannot be made valid at a later meeting.  However the matter may be considered afresh at a later meeting with a quorum present.

4.2.7 What can a council do to maintain a quorum at meetings?

Sometimes councillors leave a meeting with the intention of removing the quorum so that business cannot proceed.  This is a political misuse of the meeting procedure and should be avoided.

If a council is unable to maintain a quorum because of disputes between councillors, negotiating the matters in contention outside of the meeting forum is suggested.  You should try to resolve your concerns (perhaps with the assistance of a mediator) and come to a position so that the business may be dealt with in the meeting.

Clause 239(2) of the Regulation allows for a procedural motion without notice to change the order of business at a meeting from that set out in the agenda.  In this way, controversial issues can be dealt with last (to avoid losing quorum) and the remainder of the current business can be dealt with.

4.2.8 Can a council abandon a meeting before the time set for the meeting because of an anticipated lack of a quorum?

There is no provision in the Act or the Regulation for a council meeting to be abandoned or cancelled.  If notice of a meeting has been given, it must be held or at least opened.  While a meeting without a quorum can be opened, it cannot make any decisions (s.371 of the Act).

Clause 233(1)(a) of the Regulation provides that a council meeting must be adjourned if a quorum is not present within half an hour after the meeting is due to start.

4.3 Adjourning Meetings

4.3.1 What is the effect of adjourning a meeting?

If a meeting is adjourned because it cannot be held, for example because of a lack of a quorum, it is postponed to a later time or date and, possibly, to a different place.

If, part way through a meeting, the meeting is adjourned (for example because a quorum ceases to be present or because of time constraints) the meeting will recommence at the time and place that it is adjourned to.

An adjourned meeting is a continuation of the earlier part of the same meeting, not a new meeting.

4.3.2 What notice should be given of an adjourned meeting?

If a meeting is adjourned to a different date, time or place, each councillor and the public should be notified of the new date, time or place.

4.3.3 What business can be conducted at a meeting that has been adjourned?

As an adjourned meeting is a continuation of the same meeting (not a new meeting), council does not need to issue a new agenda and business papers for the adjourned meeting.  The agenda and business papers already issued would be the proper documents from which you are to work.  Business not already on the agenda could be dealt with only if the urgency procedure in clause 241(3) of the Regulation is followed.

If the adjourned meeting is held on the same date as another council meeting (for example, the next ordinary meeting), the meetings should be kept separate, with separate agendas and business papers.  Which meeting is held first would depend on the circumstances.  For example, the earlier meeting might have been adjourned because of a lack of a quorum after councillors walked out over a certain item.  Because that item is still on the agenda, it is possible that the councillors might walk out again.  In this case, it would be better to hold the next ordinary meeting (without the controversial item) first so that current business can be dealt with.  The adjourned meeting could then follow.

PART 5 - MOTIONS AND AMENDMENTS

5.1 Terminology

5.1.1 What is a motion?

A motion is a proposal to be considered by council at a meeting.  It is a request to do something or to express an opinion about something.  A motion formally puts the subject of the motion as an item of business for the council.

5.1.2 What is an amendment?

An amendment is a change to the motion before the council, and takes place while that motion is being debated.  An amendment to a motion must be put forward in a motion itself.

5.1.3 What is a resolution?

A resolution is a motion that has been passed by a majority of councillors at the meeting.  While in practice it means the ‘council decision’, the word ‘resolution’ also indicates the process by which the decision was made.

5.2 Motions

5.2.1 How should motions be worded?

A motion should start with the word ‘that’, for example, ‘That Road X be closed’.  Motions should be clear, brief and accurate. A councillor may use sub-sections, numbered paragraphs or the like to make sure that the motion is easy to understand.  A councillor could submit more than one motion on the same topic.

Usually motions are written in a positive sense so that a ‘yes’ vote indicates support for action, and a ‘no’ vote indicates that no action should be taken.  A motion should be full and complete, so that when the motion or resolution is read in the future, its intention is clear.

5.2.2 Can a councillor explain uncertainty in the wording of a motion before it is seconded?

There may be situations in which the person moving a motion might be given the opportunity to explain uncertainties in its wording.  This is not covered by the legislation however council’s Meeting Code provides that it is a matter for the chairperson to decide.

Any explanation as to meaning should be limited to making clear the issue, not extending debate on the motion.

5.2.3 How does a councillor give notice of business for a council meeting?

A councillor gives notice of business for a council meeting by sending or giving a notice of motion to the general manager (cl.241(1) of the Regulation).  The council’s Meeting Code sets the timeframe for notice (see 1.4.1).  The general manager must not include any business in the agenda that is, in his or her opinion, unlawful (cl.240(2) of the Regulation).

All councillors are entitled to submit notices of motion to be included on the agenda in accordance with clause 241(1).

It is good practice that a general manager only provide factual information on the motion to assist in the discussion of the motion if requested by the councillor.  It is considered not appropriate for a general manager to comment on the merit of any notice of motion.

(See also 1.4.10 of this Meeting Code)

5.2.4 Can the number of motions put forward by a councillor be limited?

No.  As long as notice and other procedures are followed, a councillor can put forward as many motions as one may wish.  When putting forward motions, consideration should be given of the need to balance one’s civic responsibility for representing the interests of the community with one’s obligation to use council’s resources effectively and efficiently.

5.2.5 Can a councillor withdraw a notice of motion before it is put on the agenda?

A councillor may withdraw a notice of motion before it is placed on the agenda.

5.2.6 What is the usual order of dealing with motions?

A motion or an amendment cannot be debated unless there is a ‘mover’ and ‘seconder’ (cl.246 of the Regulation).  The mover puts forward the motion and if a second person agrees with it, debate on the motion can begin.

The mover has the right to speak first, and a general ‘right of reply’ at the end of the debate (cl.250 of the Regulation).  No new arguments or material should be argued during the ‘right of reply’.

The seconder of the motion speaks after the mover, but may choose to hold over their speaking rights until later in the debate.  However a procedural motion could be passed, putting an end to debate before the seconder has spoken.

Councillors are asked to speak for and against the motion, usually in the order of one speaker for the motion and one speaker against the motion.  Debate may end by completing the list of speakers who want to speak for or against the motion, the time allowed for debate finishing, the (limited) number of speakers allowed to speak on the motion having been reached, or where a procedural motion ‘that the question be put to the vote’ has been successful.

At the end of the debate, the chairperson puts the motion to the meeting for vote.  The chairperson will then declare the result of the vote.  If passed by the majority, the motion becomes a formal resolution of council.  The decision is final, unless it is immediately challenged by two (2) or more councillors who rise and demand a division on the motion (cl.251(3) of the Regulation).  Further information on divisions is contained in section 2.9 of this Meeting Code .

Council specifically allows a Chairperson of Council or Committees to move a motion from the Chair.

5.2.7 Can the time a councillor has to speak to a motion be limited?

Yes.  Clause 250(3) of the Regulation limits the length of speeches on each motion to five (5) minutes, unless the council gives extra time.  Extra time to speak may also be granted by the chairperson of the meeting when there is a need to explain a misrepresentation or misunderstanding (cl.250(3) of the Regulation).

5.2.8 Can a motion be moved following a question on notice?

Where an answer has been provided to a question on notice and a councillor seeks to have a matter arising from that question and answer considered by the council, notice should be given to the general manager in the usual way.  The general manager can include the item on the agenda for the next meeting, and make sure that the relevant staff prepare any necessary background documents or reports.  However if the matter is genuinely urgent, it could be dealt with under clause 241(3) of the Regulation.

Further information on questions is contained in paragraphs 1.4.10 and 2.5 of this Meeting Code.

5.2.9 When a councillor moved a motion at a meeting, a number of councillors left the meeting and there was no longer a quorum.  Should the motion be automatically placed on the agenda for the next meeting?

The Act and Regulation are silent as to the lapsing of motions.  The council may debate a motion that has been properly submitted.  If the lack of quorum continued and the meeting was adjourned, the motion could be debated later, when the meeting is reconvened.

If the motion was not put to the meeting, it would be dealt with at the reconvened meeting.

(See also paragraph 4.2.4 of this Meeting Code.)

5.2.10 If a notice of motion is given before a council election and the proposed mover is not re-elected to the council, can or must the council consider the motion?

The council can debate a motion that has been properly submitted.  What is important is that the motion was valid at the time it was put forward.  Whether the motion is actually debated will depend on whether another councillor moves and seconds the motion at the meeting.  If the motion does not have support at the council meeting, then it may lapse for failure to get a mover or seconder, or be defeated in a vote.

5.2.11 Are there any obligations on a councillor when considering a motion, amendment or resolution?

Councillors have an obligation to consider issues consistently, fairly and promptly (Clause 6.5 Model Code). All relevant facts known (or reasonably known) must be considered in terms of the merits of each issue (Clause 6.6 Model Code). Irrelevant matters or circumstances must not influence decision-making.

5.3 Amendments to Motions

5.3.1 How can a motion be amended?

An amendment to a motion requires a mover and a seconder to put it forward.  The amendment must be dealt with before voting on the main motion takes place (cl.246 and cl.247 of the Regulation).  Debate is allowed only in relation to the amendment and not the main motion — which is suspended while the amendment is considered.

If the amendment is passed, the motion is changed to include the amendment and this new motion is debated.  If amendment is not supported, the main motion stays in its original form and debate resumes.

There should only be one amendment to a motion before the council at any time (cl.247 of the Regulation).  If several amendments are proposed, each should be moved, seconded, debated and voted upon before the next.  The amendments should be put forward and debated in the order in which they affect the original motion, not in the order in which they were put to the meeting.

5.3.2 How should an amendment to a motion be worded?

Amendments may be in the form of additional words to a motion and/or the removal of words from the motion.  If the amendment is supported, the original motion is automatically changed by the addition and/or removal of words.  This becomes the amended motion.  If no further amendments are put forward, the amended motion is then put to the meeting.  If passed, the amended motion becomes the resolution.

Any amendment to a motion must not alter the motion to the extent that it effectively reverses the motion.

5.3.3 Can the chairperson rule an amendment to be new business and therefore out of order when discussing the current motion?

Yes.  While clause 238(1) of the Regulation requires a chairperson to put to a council meeting any lawful motion brought before the meeting, there is no requirement covering an amendment to a motion.  The chairperson can therefore rule an amendment to be new business and out of order.

Nevertheless, clause 248(1) of the Regulation allows a councillor, without notice, to move to disagree with the ruling of the chairperson on a point of order.  Only the mover of a ‘motion of dissent’ and the chairperson can speak to the motion before it is put.  The mover of the motion does not have a right of general reply (cl.248(3) of the Regulation).  It is then a matter for the councillors to decide by majority vote whether to carry the motion of dissent.

5.4 Foreshadowing Another Motion

5.4.1 Can another motion be foreshadowed?

Yes.  It is possible to advise the council of an intention to put forward a motion that relates to a motion currently before the council.  However, the chairperson cannot accept the new motion until the first motion is decided.

PART 6 - RESCISSION MOTIONS

6.1 Changing earlier decisions

6.1.1 How can councils change earlier decisions?

Councils are able to change their decisions by way of a later decision.  A motion to rescind or alter a resolution is the usual means of changing a council resolution.  These motions must be notified in accordance with the Act (s.372(1)) and council’s Meeting Code.  Section 372(4) of the Act requires notice of a rescission motion to have the signatures of three (3) councillors if less than three (3) months has passed since the original resolution was made.

However, the courts have held that it is not always essential that a council expressly alter or rescind a resolution prior to passing a later resolution which is inconsistent or in conflict with the earlier resolution.  In other words, alteration or rescission can be implied - Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369.

To make sure that council’s intention is clear, it is considered best practice to expressly state that a later resolution is to replace an earlier one.  In this way, the public, council staff and subsequent councillors can understand and act with certainty on council decisions.

6.1.2 Are there limits on when or how often decisions can be revisited?

Section 372(5) of the Act allows an original motion to be negatived (that is, lost) twice before a three (3) month ban is placed on any councillor putting forward another motion to the same effect.  However, to even bring the motion forward the second time will require three (3) councillors’ signatures if less than three (3) months has passed since the first time the motion was defeated (s.372(4) of the Act).

A motion to ‘rescind’ or undo an earlier resolution can only be lost once before a three (3) month ban is placed on any councillor ‘bringing forward’ another motion to the same effect (s.372(5) of the Act).  ‘Brought forward’ means moved at a council or committee meeting.  It is possible for notice of the motion to be given (but not for the motion to be moved) before the expiry of the three (3) month period referred to in section 372(5) of the Act.

6.1.3 Can a council rescind its decision not to pass a motion at an earlier meeting?

When a motion is not passed, this will result in no decision being made or no opinion being expressed by the council.  It does not mean that the council takes the opposite view or position to that expressed in the motion.

A second motion to the same effect as the original motion may, however, be debated (subject to due notice being given and the signature requirements of section 372(4) of the Act being met).  A third attempt cannot be made within three (3) months.

6.2 Lodging rescission motions

6.2.1 Can a council add extra time restrictions on the lodging of rescission motions?

No.  Section 372 of the Act contains two (2) time restrictions on the lodging of rescission motions. The first, in section 372(1), requires notice of a rescission motion to be given in accordance with the council’s Meeting Code.  The second restriction, in section 372(5), stops a similar motion being brought within three (3) months after a rescission motion has been defeated.

Any additional restrictions within a council’s Meetings Code that limit the lodging of rescission motions would be inconsistent with the Act and would have no effect.

6.2.2 Can a council require rescission motions to be lodged with, for example, five (5) supporting signatures?

Section 372(1) of the Act requires notice of a rescission motion to be given in accordance with the Act (s.360) and council’s Meeting Code. Section 372(4) adds the requirement that the notice must be signed by three (3) councillors if less than three (3) months has passed since the resolution was made.

A council’s Meeting Code cannot require notice of a rescission motion to be given in a manner that is inconsistent with section 372 of the Act (s.360).  This would include requiring more than three (3) signatures on the notice.  If a councillor moves a motion to require more than three (3) signatures on a notice of a rescission motion, the motion would be unlawful and the chairperson must rule it out of order.

However the signature requirements of section 372(4) of the Act only apply to notices of motion to rescind council resolutions.  If a council wants to allow its committees to rescind their resolutions, it could put this in its Meeting Code.

While it is expected that rescission procedures for council committees would be similar to the procedures for council itself, there is nothing to stop a council from having a different rescission procedure for its committees.

For committees consisting entirely of councillors, it would be best for rescission procedures to be added to the council’s Meeting Code, including consideration of any submissions received.

6.2.3 Can councillors avoid giving notice of a rescission motion by raising the motion without notice in a committee meeting and bringing it to the council meeting in a committee report?

Section 372 of the Act identifies procedures for lodging rescission motions.  Its predecessor was clause 25 of former Ordinance No.1.  It was generally thought, following the 1973 case of Shanahan v Strathfield Municipal Council (1973) 2 NSWLR 740, that clause 25(e) of the Ordinance provided an alternative to the rescission motion procedures where a recommendation was made as part of a report of a council committee.

However, section 372(6) of the Act is worded differently to clause 25(e) of the Ordinance.  It is this different phrasing which throws into doubt the applicability of the reasoning used in the Shanahan case.  The Division is of the view that section 372(6) of the Act does not provide an alternative to the rescission motion procedures.  Council committees must follow the requirements in the same way as individual councillors.  Until there is a court decision on this issue, all interpretation is a matter of opinion.  Councils should be guided by their own legal advice.

6.3 Dealing with rescission motions at meetings

6.3.1 If council passes a resolution and a rescission motion is lodged at the same meeting, can the rescission motion be dealt with at that meeting?

Section 372(1) of the Act requires notice of a rescission motion to be given in accordance with council’s Meeting Code.  A rescission motion can be dealt with at the same meeting at which the resolution is passed if thirty (30) minutes notice is given.

However, clause 241(2)(a) and clause 241(3) of the Regulation allow business to be transacted when due notice has not been given.  Some authorities believe that this clause should not be used for rescission motions.  Clause 241(3) should be used only when a matter is genuinely urgent.

6.3.2 Can a council rescind a part of a resolution if the part is discrete from other parts of the resolution?

While not specifically covered in section 372 of the Act, it would appear that a council could rescind part of a resolution (without rescinding the whole resolution).  This view would be subject to any determination of a court.

6.3.3 Can a councillor bring forward a motion and have it twice negatived (or lost) by the council so that it cannot be brought forward again within three (3) months?

The purpose of this action would be to prevent a motion being put forward again under more favourable circumstances.  This procedure would be in accordance with section 372(5) of the Act, but would not be in the spirit of your obligations under the Model Code.  This action would only be successful if the majority of the councillors were prepared to vote twice against the motion.

6.3.4 Can a resolution granting development consent be rescinded?

Under section 83 of the Environmental Planning and Assessment Act 1979 development consent has effect from the date endorsed on the written notification (subject to any appeal action).  It would be possible for a council to rescind a resolution giving consent if the applicant has not been formally advised of the consent.

In Townsend v Evans Shire Council [2000] NSWLEC 163, it was held that there was no effective development consent until formal notice of a determination was issued to the applicant and that “ … it is necessary that the communication of the consent have some formal character as being authenticated on behalf of the council”.  Verbal advice from the mayor at the council meeting that the consent had been given was not notice to the applicants so as to “tie the council’s hands”.  In this case, the rescission motion had been lodged with the general manager before the time required in the planning regulations for issuing a notice of determination.

Once the applicant has been formally advised of council’s decision, there may be issues of compensation to the applicant if consent is later rescinded.

6.3.5 Does a review of a development application (DA) determination under s.82A of the Environmental Planning and Assessment Act have to be accompanied by a rescission or variation motion?

Section 82A(9) of the Environmental Planning and Assessment Act 1979 states that if the council changes a determination, this will replace the earlier determination from the date of the review.  It is the Division’s view that a changed determination automatically replaces the earlier determination by virtue of section 82A(9) of that Act.  Because of this, there is no need for a council to also pass an alteration or rescission motion to change the earlier determination.

6.3.6 If a notice of a rescission motion is given before a council election and the proposed mover is not re-elected to the council, can or must the council consider the motion?

A rescission motion that has been correctly submitted under section 372 of the Act may be debated by the council, regardless of the current status of the signatories of the motion.  What is important is that the motion was valid at the time of its submission.

Whether the motion is actually debated will depend on whether other councillors move and second the motion at the meeting (cl.245 and cl.246 of the Regulation).  If the motion does not have support at the meeting, it may lapse for the want of a mover or seconder, or be defeated in a vote.

PART 7 - CLOSED PARTS OF MEETINGS

7.1 Who decides?

7.1.1 Who decides that part of a council meeting is to be closed to the public?

It is up to council to decide whether a matter is to be discussed during the closed part of a meeting (s.10A(2) of the Act).  In deciding this, the council would be guided by whether the item is in a confidential business paper.  However, even if the item is in a confidential business paper, the council could disagree with this assessment and discuss the matter in an open part of the meeting.

Council may allow members of the public the opportunity to make a statement as to why part of a meeting should be closed (section 10A(4) of the Act and cl. 252 of the Regulation).

7.2 Subject matter of closed meetings

7.2.1 What part of a meeting may be closed to the public?

Parts of council and committee meetings may be closed to the public only in the circumstances provided under section 10A of the Act.  Matters of a personal or confidential nature, which do not come within the grounds provided under section 10A, cannot be discussed in the closed part of a council or committee meeting.  (This applies only to those committees that are made up of councillors only).

7.2.2 Can a council discuss confidential matters not referred to in s.10A(2) of the Act, eg nominations for Australia Day awards?

No.  Such matters could be delegated to a committee made up of councillors and other persons.  Such committees are not bound by section 10A of the Act.

Council will delegate such matters to an “Australia Day” Committee comprising all councillors and the General Manager.

7.2.3 Can a council close a meeting to consider whether or not to commence litigation?

Yes, provided that council has grounds for closing that part of the meeting under section 10A of the Act

In Wykanak v Rockdale City Council and Anor [2001] NSWLEC 65, the council closed its meeting to discuss a confidential business paper relating to the recovery of legal costs from a person, relying on the grounds of section 10A(2)(b) of the Act (the personal hardship of any ratepayer).  The Court found that as the person was not a ‘resident’ at the time of the council meeting, the council had gone beyond its powers in closing the meeting to the public.  The Court noted “… the public importance of councils conducting their affairs at meetings that are normally open to the public”.  It ordered the council to reconsider the matter and provide the person from whom the legal costs were sought a reasonable opportunity to address the council at an open meeting.

7.2.4 Should the contractual conditions of senior staff be presented in an open or closed council meeting?

The annual reporting of contractual conditions of senior staff to council is required by section 339 of the Act.  In addition, section 428 of the Act requires a council to include certain senior staff details in its published annual report.

The contractual conditions of senior staff is public information and should be presented in an open meeting.  Following from this, if other information that is common to all senior staff employed by council is presented to the council, then it should also be presented in an open meeting.  This could include information on common contractual conditions, apart from salary.

This approach is consistent with section 10A(2) of the Act that allows a council to close part of a meeting to discuss personnel matters concerning particular individuals.  If a matter concerns the senior staff as a whole, section 10A of the Act does not apply.  If the council wishes to discuss, for example, the salaries of particular employees or consider the performance of the general manager, then section 10A powers would be available to close part of a meeting.

Closing part of a meeting is discretionary.  A council does not have to close part of a meeting even if the matters to be discussed fall within section 10A(2) of the Act.

In keeping with the general intent of the Act, and with the public nature of certain senior staff information (s.428 of the Act), a council should consider providing as much information as possible in open session.  While the general manager is responsible for senior staff employment, discipline and performance, there may be certain contractual matters that relate to individual senior staff that justify closure of part of a meeting on the grounds of privacy.

7.3 Procedure

7.3.1 What does a motion to close a meeting look like?

Council is required to state the grounds for closing the meeting and the reasons why it is not in the public interest to discuss the matter in an open meeting (s.10D of the Act).  A motion will be worded:

“THAT Council now hereby resolve into Closed Committee of the Whole for the purpose of discussing matters of a confidential nature relating to personnel or industrial matters, personal finances and matters the publicity of which Council considers would be prejudicial to the Council or the individuals concerned and that the press and public be excluded from the meeting in accordance with the conditions of Council’s Confidentiality Policy AND FURTHER that as reports to the Closed Committee of the Whole are likely to be confidential and their release prejudicial to the public interest and the provisions of Council’s confidentiality policy, that copies of these reports not be made available to the press and public.”

7.3.2 How can the public find out what has been decided at a closed part of a meeting?  Can the decisions be kept confidential?

Resolutions or recommendations made at a closed part of a council or committee meeting must be made public by the chairperson of the meeting as soon as practical after the closed part of the meeting has ended (cl.253 and cl.269 of the Regulation).  This would usually be done by a verbal or written statement.

If the meeting is a committee meeting, the resolutions or recommendations must also be reported to the next meeting of the council (cl.269 of the Regulation).  If the meeting is a closed meeting of the committee of the whole, its recommendations must be reported to open council, usually at the same meeting.  The council must ensure that a report of the proceedings (including any recommendations of the committee) is recorded in the council’s minutes.

While discussions in the closed part of a meeting remain confidential, the separate nature of a resolution or recommendation allows it to be made public immediately after the closed part of the meeting has ended.

The resolution or recommendation could be phrased in such a way as to protect a person’s identity or other confidential details (for example, stating an assessment number instead of the person’s name or giving the general locality of land to be purchased instead of the precise address).  This allows the public to know what the council or committee has decided at the closed part of the meeting without revealing confidential information.

The minutes should record sufficient details of the resolution to indicate the nature of the decision.  It is not sufficient, for example, to resolve to implement the committee’s recommendation or the general manager’s recommendation.  More specific information is required.

The meaning of ‘as soon as practical’ will depend on the circumstances.  In some cases, commercial or legal issues might effect how quickly a council makes public the details of a resolution or recommendation.  As a general rule, the public should be kept informed of closed session resolutions or recommendations in an adequate and prompt manner.

The latest time for informing the public of resolutions or recommendations made in the closed part of a meeting would be when the minutes containing the resolutions or recommendations are made available for public inspection.  Any person is entitled to inspect minutes containing resolutions or recommendations from the closed parts of meetings.  While a council cannot keep its decisions or recommendations confidential, it should be possible to discuss matters in the minutes in such a way as not to reveal confidential details.

7.3.3 What is the difference between ‘closed council’ and ‘committee of the whole’?

The closed part of a council meeting could be referred to as ‘closed council’ but not as a ‘closed committee’.  While the words ‘meeting in committee’ are sometimes used to refer to an organisational meeting in closed session, that is, with non-members and the public absent, this is not the case with councils.

Section 10A of the Act makes it clear that both councils and council committees (made up of councillors only) can close parts of their meetings.  If a council closes part of its meeting, it still remains part of the council meeting - with the rules of debate being the same as for open meetings.

If a council resolves itself into the “committee of the whole” under section 373 of the Act the council meeting becomes a committee meeting (consisting of all the councillors).  By reason of clause 259 of the Regulation this allows councillors to overcome the limits, set by clause 250 of the Regulation, on the number and duration of speeches.  The meeting remains open to the public unless council closes it under section 10A(2) of the Act.

7.3.4 Do the decisions of the closed part of a council meeting need to be adopted in open council?

There is no need for the council to re-make a decision by adopting it in open council.  The only matters a council would adopt are the recommendations made by the committee of the whole (cl.259 of the Regulation) or recommendations of another council committee (cl.269 of the Regulation).

7.3.5 Can a council invite a member of the public to be present at a closed part of a meeting?

There is nothing in the Act or Regulation to limit public attendance at closed parts of meetings if invited by the council.  However, the non-disclosure provisions of section 664 of the Act would apply to a person attending a closed part of a meeting.

Similarly, there does not appear to be any direct breach of the Model Code, although such invitations may affect a council’s appearance of impartiality and proper conduct in a matter.  The better practice would be to invite only those people whose presence at the meeting is necessary for the provision of advice, such as council’s solicitor.

7.3.6 What happens once business in a closed meeting has been completed?

Once council has finished business in a closed meeting it must formally resolve that the meeting be open to the public.

PART 8 - ORDER AT MEETINGS

8.1 Standards of conduct

8.1.1 How should councillors conduct themselves at meetings?

Councillors must act honestly and reasonably in carrying out council functions (s.439 of the Act).  In addition, councils must adopt a Code of Conduct to provide guidance on acceptable and unacceptable conduct (s.440 of the Act).  How councillors are to behave is outlined in the Model Code and Model Code Guidelines.  Failure to comply with the Act, the Model Code or council’s Code of Conduct forms misbehaviour under section 440F of the Act (see clause 11.2 of the Model Code).

Councillors have a responsibility to behave professionally in and out of council meetings.  Councillors should maintain good working relationships with each other and act in a manner appropriate to their civic status.  This would include orderly behaviour and complying with rulings from the chairperson at council meetings (Clauses 9.5 and 9.6 Model Code).  The Meeting Code and council’s Code of Conduct identify the standards and responsibilities imposed on councillors by the Act, the Regulation and the Model Code.

Acts of disorder committed by councillors during council or committee meetings may amount to misbehaviour, leading to censure by the council or suspension (Section 12 Model Code).  Section 12 of the Model Code and part 5 of the Model Code Guidelines provide information for managing complaints about breaches of the code of conduct and how misbehaviour is to be dealt with by the council, the Division of Local Government, the Independent Commission Against Corruption and/or the NSW Ombudsman.

8.1.2 What should be the relationship between councillors and council staff?

The Act makes the general manager responsible for the efficient and effective operation of the council’s organisation and for implementing decisions of the council (s.335 of the Act).  The general manager is, therefore, in charge of the council’s management.

Councillors are required (as a group) to direct and control the council’s affairs; allocate resources; and determine and review the council’s policy and performance (s.232 of the Act).   Councillors should not involve themselves in the day-to-day administration of council.  This is the responsibility of the general manager.

Councillors and staff have a responsibility to behave professionally and maintain constructive working associations.  This is based on the principle that all public officials have a duty to act with integrity, honesty, impartiality and in the public interest.

Councillors must not make personal attacks upon staff at meetings.  If a councillor has a complaint about a member of staff that complaint should be addressed in writing to the general manager.  If the complaint is about the general manager it should be addressed in writing to the Mayor.

Section 9 of the Model Code and part 4.4 of the Model Code Guidelines discuss the relationships between councillors and council staff, contractors or related persons.  Councillors should familiarise themselves with these provisions and use them to guide their conduct.

8.1.3 Should the Mayor use the council’s Code of Conduct against a councillor who criticises the Mayor?

Subject to the provisions of the Act, council’s Code of Conduct and defamation law, Mayors and councillors who operate in a political environment must expect criticism of their performance and views.  Mayors are able to correct the public record without having to use Code of Conduct powers, especially where there has not been a serious breach of the Code.

8.2 Maintaining order

8.2.1 Who is responsible for maintaining order?

A council must deal with any disorder of its members.  As a councillor you should take responsibility for your own behaviour and that of your colleagues.

In some situations it may be appropriate to consider counselling or mediation to determine the issues motivating a councillor’s behaviour.  Early attention to issues is often required to prevent problems becoming entrenched.

When disorder at a meeting occurs, the chairperson has both the responsibility and authority to bring the meeting to order, including expelling councillors and others who cause disorder.  Failure to effectively exercise this authority can result in a loss of order at meetings.

Council has authorised the chairperson of a meeting under s10 (2) of the Act and cl 258 of the Regulation.

8.2.2 What is the procedure for maintaining order?

The Act has a number of provisions which deal with the behaviour of councillors, including:

·    requirements to adopt and comply with a Code of Conduct (s.440);

·    provisions for a Meeting Code (s.360);

·    obligations to disclose pecuniary interests and provisions to deal with breaches of pecuniary interest requirements (ss.441–459);

·    regulation of the conduct of council meetings; and

·    the ability to exclude a person, including a councillor, from a meeting for disorder (s.10).

The Act imposes a duty on councillors to act honestly and exercise a reasonable degree of care and diligence in carrying out their functions (s.439 of the Act). Councils may use other techniques such as training, counselling and mediation to address councillor behaviour.  Any powers for dealing with disorder should not be used unfairly, for example, against councillors who may have a differing view.

Clause 257(1) of the Regulation authorises the chairperson to adjourn a meeting and leave the chair for up to 15 minutes if disorder occurs.  This clause does not preclude council from subsequently adjourning for further 15 minute periods should the circumstances so require.  A short suspension of business can be effective in dealing with disorder at meetings though this should not be over-used.

8.2.3 In what situations may a councillor be expelled for disorder?

Clause 256(1) of the Regulation defines acts of disorder at council and committee meetings. These include a councillor:

·    contravening the Act or any Regulation in force under the Act, or

·    moving or attempting to move a motion or amendment that has an unlawful purpose, or

·    assaulting or threatening to assault another councillor or person present at the meeting, or

·    insulting or making personal reflections on or imputing improper motives to any other councillor, or

·    saying or doing anything that is inconsistent with maintaining order at the meeting or is likely to bring the council into contempt.

Clause 256(2) of the Regulation authorises the chairperson to require a councillor to take back comments or to apologise without reservation for an act of disorder (see also Clause 12.25 Model Code).  If you do not act as requested by the chairperson, you may be expelled from the meeting.  This can be done by the council, committee, chairperson (if authorised to do so by a resolution of the meeting), or by a person presiding at the meeting (if the council has authorised exercise of the powers of expulsion under section 10(2) of the Act). 

Options available to council for breach of the Model Code or council’s Code of Conduct are detailed in sections 440A–440Q of the Act and in Clauses 12.25 and 12.27 of the Model Code.

You may be expelled from a meeting for refusing to apologise for an act of disorder that occurred at that meeting, or at an earlier meeting. This has effect only for the meeting at which the expulsion occurs. You can be expelled from a later meeting only if you again refuse to apologise for your earlier (or new) act of disorder.

Section 10(2) of the Act states that a person is not entitled to be present at a council or committee meeting if expelled.  If you refuse to leave a meeting immediately after being expelled, the chairperson may request a police officer or an authorised person to remove you from the meeting.  The police officer or authorised person may use necessary force to remove you and prevent your re-entry (cl.258 of the Regulation).

Council has authorised the chairperson of a meeting under s10 (2) of the Act and cl 258 of the Regulation.

8.3 Sanctions

8.3.1 What sanctions are available for councillor misbehaviour in a meeting?

The Model Code provides information on sanctions available to council to address councillor breaches of the Model Code and council’s Code of Conduct (Clauses 12.25 and 12.27 Model Code).  These include censure, apology, counselling, making a public finding of inappropriate conduct, and prosecution for the breach of any law.

8.3.2 How can a council formally censure a councillor for misbehaviour?

Through a resolution at a meeting, council can formally censure a councillor for misbehaviour (s.440G of the Act).  Consideration of all the issues and points of view should take place before a councillor is censured or sanction is sought for a significant breach of the Code of Conduct.  External factors such as political or other affiliations are irrelevant and must not influence any decision.  A decision to seek sanction against a councillor should reflect the concern of the overwhelming majority of councillors about the conduct of the councillor and its impact on council’s operations.

Note that any censure imposed by a council must not interfere with the councillor’s common law right to conduct his or her civic duties, including participating in meetings, but should send a clear message that the breach is unacceptable.

8.3.3 When may council request the Director General to suspend a councillor?

Under section 440H of the Act, council may request the Director General to suspend a councillor from civic office.  Suspension would only be considered where the councillor’s behaviour has been disruptive over a period of time (that is, more than one incident) and forms a pattern of misbehaviour serious enough to justify suspension or the councillor has been involved in one incident of misbehaviour that is sufficiently serious as to justify the councillor’s suspension (s 440I and Clauses 12.27-12.31 Model Code).

The Local Government Pecuniary Interest and Disciplinary Tribunal also has power to conduct disciplinary proceedings for councillor misbehaviour in accordance with chapter 14, parts 1 and 3.of the Act.

PART 9 - COMMITTEES, THEIR MEMBERS AND FUNCTIONS

9.1 Forming committees

9.1.1 How are council committees formed and what are their functions?

As a body corporate (s.220 of the Act), a council can form committees and determine their functions, powers, membership and voting rights.  Membership of a council committee is not restricted to councillors.

Objectives, Responsibilities and Terms of Reference for each of the previous Standing Committees have been developed.  Council has resolved, in addition to each committees specified function, that if a committee is giving an approval for a function, process or application, any member of that committee can request that the matter be referred to full Council for determination".

In regard to committees consisting entirely of councillors, a council can establish such a committee only by resolution (cl.260(1) of the Regulation).  This has the effect of stopping a council from delegating the function of establishing such committees (s.377(1) of the Act).

A council committee could be advisory or it could have decision-making powers as delegated by the council.  A committee may exercise a council function (s.355(b)) of the Act) and a council may delegate to the committee any of its functions other than those set out in section 377(1) of the Act, for example, the power to levy rates or borrow money.  The council should set out the functions of each committee when the committee is established. The council can change those functions from time to time (cl.261 of the Regulation).

However a committee can exercise a council’s regulatory functions under Chapter 7 of the Act only if all of its members are either councillors or council employees (s.379(1) of the Act).  So a committee with members of the public on it cannot exercise a regulatory function under Chapter 7 of the Act.

Advisory committees or sub-committees are common and usually have the power to make recommendations but not to make decisions.  Such committees often consist of experts, professional persons, government employees, community representatives, or council staff.  The recommendations of advisory committees can assist a council in making informed decisions on complex matters.  Alternatively, committees may be given power to spend council monies on certain matters, if a resolution to that effect has been previously passed by the council (s.377 and s.355 of the Act).

For information regarding the “committee of the whole” see paragraph 2.6 of this Meeting Code .

9.1.2 When are council committees elected or appointed?

There is nothing in the Act or the Regulation indicating when a council is to elect or appoint its committees.  The council decides when this is done.  It can also postpone election or appointment.  This power is subject to any meetings timetable set by the council in its Meeting Code.

Council appoints standing committees at the beginning of each Council term (September Council meeting) which are reviewed annually.  The Structure is basically as follows:

Standing Committees on a Panel system as follows:

Panel A

·   Works Committee

·   Community Services Committee

·   Audit Committee

·   Rate Review Committee

Panel B

·   Environmental Services and Sustainability Committee

·    Economic Development and Tourism Committee

·    Wards Review Committee

 

The quorum for each standing committee meeting shall be equal to a majority of Committee Members, i.e. half plus 1.

If a standing Committee is given an approval for a function, process or application, any member of that Committee can request that the matter be referred to full Council for determination.

Council’s Quarry Review and Land Development Committees meet on a bi-monthly basis; Audit, Rate Review and Wards Review as required and all other Committees meet monthly.

9.1.3 Does a councillor have to be present at the meeting to elect committee members in order to be nominated or elected for that committee?

There is nothing in the Act or the Regulation to require a councillor to be present at the council meeting at which he or she is nominated or elected as a member, deputy chairperson or chairperson of a council committee.  Therefore a councillor could be nominated or elected in his or her absence.  Council requires an absent councillor to have given their written consent to being nominated for a committee before that councillor is nominated at the meeting. 

9.2 Status of committees with non-councillor members

9.2.1 Do references to ‘committees of council’ in the Act and Regulation refer to advisory committees that include members of the public?

In almost all cases, the answer is ‘no’.  Most references to council committees in the Act specifically state “…a committee of which all the members are councillors”.  These can be ‘committees of the whole’ (that is, all councillors, including the mayor, only) or a committee established under clause 260 of the Regulation (the mayor and some councillors only).

Sections 355(b) and 376(2) of the Act refer to committees whose members include people who are not councillors.

9.2.2 What is the status of a local traffic committee?

Section 355 of the Act enables the functions of a council to be exercised by the council, by a committee of the council, or partly or jointly by the council and another person or persons.

There is a difference between a committee of a council (of which all members are councillors) and other committees that have representatives from the council and/or other organisations.  A local traffic committee falls into the latter category.  The Roads and Traffic Authority of NSW have established these committees as a condition of the council being given certain traffic regulation functions.

While a local traffic committee is not restricted in the same way that council committees are under the Act, such committees can adopt the meetings procedures and policies of other council committees if they want to.  For example, although a local traffic committee can close its meetings to the public, the committee may allow public access for reasons of openness and accountability.  This is a matter for each local traffic committee to determine.

9.3 Meeting procedures

9.3.1 What procedure is followed during meetings of council committees?

If a council committee consists of councillors only, the relevant meeting provisions of the Act, the Regulation and council’s Meeting Code govern its procedure.  These include notifying councillors and making agendas and business papers available.  The quorum for a committee made up entirely by councillors is to be a majority of the members of the committee, or such other number as the council decides (cl.260(3) of the Regulation).

If a committee includes people who are not councillors (that is, council staff and/or community representatives), the committee’s meeting procedure (including any notifications and agendas) is determined by the council.  It may, but does not have to, follow the procedure outlined in the Act and Regulation.

9.3.2 What is the position of the Mayor on council committees?

Clause 260(2) of the Regulation states that a committee comprising only of councillors is to consist of the Mayor and such other councillors as elected or appointed by the council.  While the Mayor (however elected) is automatically a member of each council committee consisting of councillors only, the Mayor has discretion as to whether he or she will attend the meetings of each committee (cl.268(1) of the Regulation).

The Mayor is automatically the chairperson of each council committee consisting only of councillors unless he or she does not wish to be (cl.267(1) of the Regulation).  In such a case, the council or committee will elect a chairperson.  If the chairperson is unable or unwilling to chair a committee meeting, the deputy chairperson or acting chairperson is to run it (cl.267(4) of the Regulation).

9.3.3 What are the rights of councillors to attend committees?

Each councillor, whether a member of a committee or not, is entitled to attend and speak at a meeting of a council committee.  However only councillors who are members of the committee are entitled to put business on the committee’s agenda, move or second a motion at the committee meeting, or vote at the meeting (cl.263 of the Regulation).  Voting at a committee meeting is to be by open means, such as by a show of hands (cl.265(3) of the Regulation).

9.3.4 What are the voting rights of committee members?

If a council committee is made up of councillors only, all the members have equal voting rights.  The committee can decide that, when voting is equal, the chairperson has a casting vote as well as an original vote (cl.265 of the Regulation).  Councillors who are not members of a particular committee are entitled to attend and speak at meetings of the committee, but cannot vote at those meetings (cl.263 of the Regulation).

If a committee includes people who are not councillors, it is up to the council to decide on the voting rights of committee members.  Usually all committee members have equal voting rights (other than the chairperson, who may have a casting vote as well as an original vote).  There could be special circumstances under which the members of a specific committee have different voting rights.  These voting rights should be granted with regard to principles in the Model Code and Model Code Guidelines.

9.3.5 When and how can a committee chairperson exercise a casting vote?

Clause 265 of the Regulation allows a committee consisting of councillors only to decide that, whenever the voting on a motion is equal, the chairperson is to have the casting vote (as well as an original vote).  Without such a decision of the committee, a casting vote cannot be exercised by the chairperson (or another committee member).

Council has determined that the Chairman of a committee be allowed a casting vote and, if the casting vote is used, it is to be recorded in the relevant minutes of the Committee meeting.

For clarification, should the Chairman fail to exercise their casting vote Clause 23 of the Meetings Regulation 1993 does not have the effect of making the failure of the Chairman to exercise a casting vote, a vote against the motion.

Once authorised, it is for the chairperson to decide as to how to exercise their casting vote, taking all relevant information into consideration.

In regard to a council committee including persons who are not councillors (for example, an advisory committee), the council can decide, when establishing the committee, whether the chairperson is to have a casting vote as well as an original vote. 

9.3.6 Can committee members fill absences on their committee so as to achieve a quorum?

Clause 260 of the Regulation permits committee members to be chosen only by the council at a formal council meeting.  A permanent vacancy on a council committee (caused by the resignation or death of a councillor) can be filled by the council electing or appointing a councillor to fill the vacancy.

For temporary absences, council’s Meeting Code could provide for an alternate councillor to act in the office of a committee member absent through illness, etc.  The Meeting Code would need to state that an alternate or acting member has the authority and role of the member.  Alternate members would be elected or appointed under clause 260 of the Regulation from among the councillors.  When acting as a committee member, an alternative member would form part of the committee’s quorum.

A council has various options to make sure that its committees have quorums.  These include: determining or altering the number of members on a committee to ensure that it is not too large; timetabling committee meetings to take account of the regular commitments of councillors; and reducing the quorum for a committee meeting, if necessary.

Council has opted to not nominate alternate councillors for temporary absences on council committee meetings.

9.3.7 Can a council remove a councillor from membership of a committee?

Clause 260 of the Regulation authorises a council to establish (by resolution) such committees as it considers necessary.  A committee is to consist of the mayor and such other councillors as are elected by the councillors or appointed by the council.

Under its general powers as a body corporate (s.220 of the Act), a council may (by resolution) change the composition of its committees whenever it chooses.  This can be done by removing a councillor from a committee and appointing another councillor as a member, or by changing the total number of councillors on the committee.  Changes in committee composition can come directly from the council or be recommended by the committee to the council.

In Yates v District Council of Penola (1997) 68 SASR 64, the Court held that the power to remove a councillor from a committee must be exercised lawfully, rationally and fairly.  It can’t be used for an external or ulterior purpose, for example, if motivated by punishment (even if this was not the sole or main reason for the action taken).

9.3.8 Can a council consider and adopt the recommendations of a committee before the committee’s minutes are confirmed?

There is nothing in the Regulation to stop a council from considering and adopting the recommendations of a committee before the committee’s minutes are confirmed.  An accurate record of the recommendations made at the committee meeting will ensure that the recommendations presented to the council for adoption will be the same as those later confirmed in the committee’s minutes.

Council adopts the recommendations of the Closed committee of the Whole on resuming the Ordinary Meeting prior to the closed committee’s minutes being confirmed.

9.3.9 How can a person find out information on council committees and/or complain about the operation of a committee?

Council minutes should reveal the membership, functions and powers of all council committees.  A council may also have a written policy on the running of its committees.  These documents should be available for inspection by the public in accordance with the GIPA Act.  A person unhappy with the way a committee is run can approach the mayor or another councillor to have the matter dealt with at a council meeting.

Objectives, Responsibilities and Terms of Reference for each of the Standing Committees have been developed and are attached as an annexure to the September Council meeting report at which time Committees are considered.

9.4 General Manager’s role

9.4.1 Can the general manager be delegated the power to appoint non-councillor members to a council committee formed under s.355 of the Act?

Section 377 sets out the matters that a council cannot delegate to the general manager or another person or body.  There appears to be nothing in section 377 to prevent a council delegating to the general manager the power to appoint new members to a committee (that is already established and given delegated functions by the council).

As a matter of good administrative practice, the council may require the general manager to report to the council whenever he or she has made an appointment.  The delegation to the general manager may be with other conditions, such as requiring the general manager to report proposed appointments to the council, or to appoint new members only from certain groups.

9.4.2 If the general manager is on a council committee, what is the general manager’s role?

If the general manager is a member of a council committee, he or she will not have a special function just because of their position.  Like all committee members, the general manager must accept the majority decision of the committee.  The council may, however, grant certain responsibilities to the general manager in relation to the committee.

PART 10 - AFTER THE MEETING

10.1 Acting on council decisions

10.1.1 Who makes and acts on council decisions?

The Act requires councillors as a group to direct and control the council’s affairs; allocate council resources; determine council policies and objectives; and monitor the council’s performance (s.223 and s.232 of the Act).

The general manager is responsible for the efficient and effective operation of council’s organisation and for acting on council decisions.  The general manager, not councillors, is responsible for the day-to-day management of the council and for the employment of council staff (s.335 of the Act).

10.1.2 When is a general manager required to act on council decisions?

Sections 335(1) of the Act states that the general manager is generally responsible for making sure council’s decisions are acted on without unnecessary delay.  Only a court can decide whether a specific delay was too long.

10.1.3 When is a general manager required to act on council decisions that are subject to a motion for rescission?

If notice of a rescission motion is given during the meeting at which the resolution is carried, the resolution cannot be put into effect until the rescission motion has been dealt with (s.372(2) of the Act).  The general manager is to ensure that when a rescission motion is received after the meeting, but where action on a resolution is expected before that rescission motion can be decided on by the council, that the resolution is not acted on.

10.2 Public availability of decisions

10.2.1 How can the public find out about council decisions?

Councils usually make decisions at open council meetings following the issuing of agendas and business papers to councillors and members of the public.  Usually each item of business to be dealt with at the meeting is on the agenda.  However, in cases of great urgency, business can be dealt with at a meeting without it being recorded on the agenda.

The public has the opportunity to review all council decisions, even those made at closed meetings, through the inspection of council’s meeting minutes.  The right of the public to inspect council’s meeting agendas, business papers, minutes of council and committee meetings, and the resolutions of any closed parts of those meetings, is expressly provided for under the GIPA Act.

PART 11 - MINUTES

Councils are encouraged to hold open council meetings as far as practical, and must almost always vote by open means (such as by show of hands).  In this way members of the public can witness the conduct of a council meeting.  They can also investigate the background to council decisions by inspecting the business papers of the meeting.  Through a combination of minutes, public attendance and open meetings, accountability is achieved.

11.1 Contents of Minutes

11.1.1 Why and how should minutes be kept?

Section 375 of the Act requires a council to keep full and accurate minutes of a council meeting.  A verified copy of the minutes should be kept for public inspection purposes (GIPA Act); for use in any court proceedings; and as a historical record.  Councils will also need to follow requirements under the State Records Act 1998 in regard to the keeping of minutes.

Council’s minutes and agenda are published on Council’s website.

11.1.2 What matters must be included in the minutes of council meetings?

The Regulation provides that the following matters must be included in the minutes of council meetings —

·    Details of each motion moved at a council meeting and of any amendments (cl.254(a)).

·    The names of the mover and seconder of each motion and amendment (cl.254(b)).

·    Whether each motion and amendment is passed or lost (cl.254(c)).

·    The circumstances and reasons relating to the absence of a quorum together with the names of the councillors present (cl.233(3)).

·    The dissenting vote of a councillor, if requested (cl.251(2)).

·    The names of the councillors who voted for a motion in a division and those who voted against it (cl.251(4)).  Note that a division is always required when a motion for a planning decision is put at a meeting of the council (Section 375A of the Act).

In addition Council records the names of the councillors requesting the division.

·    A report of the proceedings of the committee of the whole, including any recommendations of the committee (cl.259(3)).

·    The Act provides that the following matters must be included in the minutes of council meetings:

·    The grounds for closing part of a meeting to the public (s.10D).

·    The report of a council committee leading to a rescission or alteration motion (s.372(6)).

·    The disclosure to a meeting by a councillor of a pecuniary interest (s.453).

11.1.3 What matters should be shown in the minutes of the closed part of a meeting?

Minutes must include the details of all motions and amendments; the names of their movers and seconders; and whether the motions and amendments are passed or lost (cl. 254 of the Regulation)

These details are required for both the open and closed parts of council meetings.  Further information regarding the content of minutes of closed meetings and their publication are contained in paragraph 7.3.2 of this Meeting Code .

11.1.4 What matters must be included in the minutes of committee meetings made up of councillors only?

Clause 266 of the Regulation requires full and accurate minutes to be kept of committee meetings made up of councillors only.  The minutes must include at least:

·    Details of each motion moved at a committee meeting and of any amendments (cl.266(1)(a) of the Regulation)

·    The names of the mover and seconder of each motion and amendment (cl.266(1)(b) of the Regulation)

·    Whether each motion and amendment is passed or lost (cl.266(1)(c) of the Regulation)

·    The names of the councillors who voted for a motion for a planning decision and those who voted against it.  Such voting must be conducted by way of a division (Section 375A of the Act)

·    The grounds for closing part of a meeting to the public (s.10D of the Act)

·    The disclosure to a meeting by a councillor of a pecuniary interest (s.453 of the Act).

11.1.5 How much detail should be shown in minutes?

Section 375(1) of the Act requires a council to keep full and accurate minutes of council meeting proceedings.  Subject to legislative provisions and any directions from the council, it is up to the general manager to decide how much detail is to be shown in the minutes.

Although the minutes should contain enough detail to make the council’s decisions understood, they are not meant to be a detailed transcript of council proceedings nor a record of the behaviour of individual councillors.  However, when a council makes a decision against the recommendations of their officers or council engaged experts, it is considered best practice to minute the reasons for this.  Minuting the reasons for council’s decisions is particularly important when determining development applications against the recommendation of council officers.  This can reduce the cost to councils of Land and Environment Court litigation, as well as achieving transparency and accountability in decision-making.

11.1.6 In what format should motions and amendments be shown in the council minutes?

The Act and the Regulation allows each council to decide how to record matters in its minutes (so long as the minutes are a full and accurate record).  Council uses a Format to record resolutions of Council / Committees of: MOTION (Mover/Seconder) or RECOMMENDATION (Mover/Seconder) for committees.

Each council can decide whether to show the names of councillors voting for or against a particular motion.  Council only records a councillor’s vote against a motion if requested to do so by the councillor(s).

However if a division on a motion occurs under clause 251(4) of the Regulation (that is, when a division on a motion is demanded and takes place), the general manager is required to record the names of those voting for or against the motion in the minutes.

11.1.7 How can a council increase the accuracy of its minutes?

Section 375 of the Act requires full and accurate minutes to be kept, but allows each council to decide how this is to be achieved.  Requiring motions and amendments to be provided in writing to the chairperson and/or the minute taker before it is voted on can help make the recording of resolutions more accurate.

Councillors are required to provide a copy of proposed motions relating to Agenda items to the minute taker prior to the commencement of the meeting.  This allows a copy to be made available for consideration by all councillors prior to discussion on the motion/amendment.

Whilst councils may type the minutes on a computer which could be displayed on a screen during the meeting for the information of the councillors and the public and/or taping the proceedings Council has not chosen to display the minutes on a screen nor record the meetings.

11.2 Signing Council Minutes

11.2 1 Should all the pages of the minutes be signed or only the last page?

The minutes of council and committee meetings must be signed by the person chairing the meeting at which they are confirmed (s.375 of the Act and cl.266 of the Regulation).  There is no requirement in the Act or the Regulation that each page should be signed.

An alternative to signing each page could be to have a long line at the top and bottom of the contents of each page (to prevent the addition of extra information), with each page having a number and identifying the meeting, for example, “Page 14 of Minutes of … Council Meeting held on ... (date)”.  The final page would have a statement that the minutes, consisting of that page and the previous pages, were confirmed on a certain date.  This would need to be signed by the chairperson.  The electronic version of the minutes should be securely stored and could also be placed on council’s website for public information.

Council utilises continuous numbering in its documents and provides a statement on the final page of the minutes stating which minutes were confirmed and on what date, which is signed by the Mayor (as Chair of the meeting at which they are confirmed).  An electronic version of the (unsigned) minutes is placed on council’s website and an electronically signed version retained in the records system.

11.2.2 Are council minutes required to be signed by the general manager?

There is no requirement in the Act or the Regulation for the minutes of council or committee meetings to be signed by the general manager.

11.2.3 Can the Mayor use a stamp or electronic signature to sign the minutes?

A rubber stamp or electronic facsimile of a person’s signature, which is put on the document by that person, may be legally acceptable on the minutes, provided that the following safeguards are met:

·    The rubber stamp or electronic signature should be kept under proper security to prevent its unauthorised use

·    The chairperson should verify the use of the rubber stamp or electronic signature. This could be done by the chairperson signing (by pen) a certificate at the end of the minutes of a meeting stating that, following the confirmation of the minutes, he or she had authorised the use of his or her rubber stamp or electronic signature to the previous (number of) pages.

·    These and any other safeguards considered necessary by the council should be used to ensure that the minutes cannot be substituted or otherwise tampered with.

The Mayor signs the final page of the Council minutes each month.  On the basis of that signature and electronic version of the minutes is created.

11.2.4 When should minutes be signed?

Once they have been confirmed at a subsequent meeting of the council, the minutes must be signed by the person chairing that later meeting (s.375(2) of the Act).  It would be usual for the ‘subsequent’ or ‘later’ meeting to be the next ordinary meeting of the council or committee.

It is best to sign the minutes immediately after their confirmation or as soon as practical after that meeting (without delay).  The Mayor signs the minutes after the meeting at which they are confirmed.

PART 12 - CODE OF MEETING PRACTICE

12.1 Status of code

12.1.1 Can a council ignore its Meeting Code?

No.  The Act and the Regulation set out the basic procedure that must be followed at council meetings.  A council may choose to adopt a Meeting Code that covers the relevant provisions of the Act, the Regulation and additional provisions that are consistent with the Act or the Regulation (s.360(2) of the Act).

A council must publicly notify its draft Meeting Code and consider all submissions before adopting it (s.361 and s.362 of the Act).  Once the Meeting Code is adopted, a council and a council committee consisting of councillors must run its meetings following the Meeting Code (s.360(3) of the Act).

Failure to run meetings in line with the Act and the Regulation is a breach of the Act (s.672 of the Act).  Any person may bring proceedings in the Land and Environment Court to fix or stop a breach of the Act (s.674 of the Act).

Failure to follow the Meeting Code does not result in the proceedings of the council or committee meeting being invalid (s.374(e) of the Act).  Although a breach, failure to follow the Act, the Regulation or the Meeting Code is not an offence under the Act and therefore no specific penalties apply.

12.2 Effect of Regulation change

12.2.1 Does a council have to change its Meeting Code each time the Regulation is changed?

Changes to the Act or Regulation will automatically impact council’s Meeting Code.  Each council should include any legislative changes in its Meeting Code and/or update the Code to ensure that its provisions are in line with those changes.  If inconsistent, the provisions of the Meeting Code must be changed or removed to match the Act and the Regulation.

The Meeting Code is automatically amended as a result of changes to the Act or Regulation. These changes do not require public notification under sections 361 to 363 of the Act.

Any amendment to the additional provisions provided by the council in its Meeting Code will require public notification.

PART 13 - WORKSHOPS

13.1 Purpose

13.1.1 Can a council set up workshops? Are there any limitations on their use?

A council can hold a workshop (sometimes called a briefing session) under its general powers as a body corporate.  Workshops are informal gatherings and can provide useful background information to councillors on issues.  A workshop may involve councillors, council staff and invited participants.

Workshops should not be used for detailed or advanced discussions where agreement is reached and/or a (de-facto) decision is made.  Any detailed discussion or exchange of views on an issue, and any policy decision from the options, should be left to the open forum of a formal council or committee meeting.  Workshops are merely a means which enable councillors to bring an informed mind to the appropriate decision-making forum.

The Division recognises the value of workshops or information sessions in developing councillor knowledge and expertise, and in assisting their role as public officials.  However, where briefing sessions are held in relation to development applications or business enterprises, council needs to remember its obligations and responsibilities under the Model Code, and community perceptions in terms of unfair advantage and transparency of process.  Council may wish to introduce protocols for workshops or information sessions in its Meeting Code.


 

13.2 Attendance

13.2.1 Who can attend council workshops?

Attendance entitlements in the Act and the Regulation apply only to meetings of the council and its committees (made up of councillors only).  As workshops are not meetings of the council or such committees the attendance entitlements of councillors and the public do not apply.  Despite this every councillor should be invited to workshops (Clauses 10.2 – 10.4 of the Model Code of Conduct).

Clause 10.4 of the Model Code provides that members of staff who provide any information to a particular councillor in the performance of their civic duties must also make it available to any other councillor who requests it.  Equity in access to information (in the form of workshops) is a matter for each council to decide in the context of its policies and resources.  While it is usual for all councillors to be entitled to attend workshops, attendance is a decision for the council or, failing that, the workshop convenor.

There is no obligation on councillors to attend workshops.

13.3 Procedure

13.3.1 What are the meeting procedures for council workshops?

The meeting procedures in the Act and the Regulation apply only to meetings of the council and its committees made up of councillors only.  As workshops are not meetings of the council or its committees, the meeting procedures in the Act and the Regulation do not apply.  Meeting procedures for council workshops is a decision for the council or, failing that, the workshop convenor.  Council may wish to introduce protocols for the conduct of workshops in its Meeting Code.

The non-disclosure provisions of sections 664(1) and 664(2) of the Act apply to workshops but, because they cannot be closed under section 10A of the Act, the confidentiality provisions of sections 664(1A) and 664(1B) do not apply.

13.3.2 Can the public inspect workshop documents?

Any document produced in relation to a workshop would be a document of the council.  This means that these documents could be inspected and copied in accordance with the GIPA Act subject to any exemptions or copyright restrictions.  A person refused access to a document under the GIPA Act can apply for a review of the determination as provided by the GIPA Act.  

13.3.3 What about public perception?

When conducting workshops, a council needs to think about its obligations and responsibilities under the Model Code, and of community perceptions in terms of unfair advantage and transparency of process.  There may be a belief that workshops are a means of transacting council business and coming to council decisions in secret.

Negative public views of workshops could be changed by community education on the purpose of workshops, and by ensuring that council decisions are not made at workshops.  Establishing clear guidelines for workshops and information sessions in council’s Meeting Code would assist this.  Guidelines could include requirements that, for example, workshop briefing papers contain information but no recommendations; or directions that no recommendations are to be put to, and no agreement sought from, the councillors or other workshop participants in the course of the workshop.

13.3.4 Can a council hold community access sessions separate from its meetings?

Community access sessions are not discussed in the Act or the Regulation.  A council can hold these sessions under conditions set by the council.  Again, guidelines for running community access sessions could be included in council’s Meeting Code.

PART 14 - REFERENDUMS

14.1 Constitutional referendums

14.1.1 Is a council resolution required to give effect to the voters’ decision at a constitutional referendum?

Certain matters require a constitutional referendum — they cannot be decided by a council (s.16 of the Act).

Section 17(1) of the Act provides that a decision made at a constitutional referendum binds the council until it is changed by a later constitutional referendum.  As the council is bound by the decision, there is no requirement for a resolution to be carried to give effect to the decision.  Any change has already occurred by the operation of law.  The council has no choice as to whether it will put in place the change or not — by resolving to conduct the referendum, the council agreed to be bound by the result.

However to acknowledge the importance of the decision, the council could include in its minutes a resolution confirming or acknowledging the outcome of the referendum process.

PART 15 - SEAL

15.1 Purpose

15.1.1 What is the purpose of a council seal?

A council seal is like the signature of the council.  It approves the content of the document and shows what the council has done or agreed to do.

15.2 Procedure

15.2.1 Why is a council resolution required before the seal is used?

Clause 400(4) of the Regulation requires a council resolution before each use of the seal.  The resolution must specifically refer to the document to be sealed.  This procedure reflects the important legal status of the seal.  Requiring a resolution before the seal is used brings the document to the attention of the councillors and makes sure that they are aware of which documents are being sealed.

15.2.2 How can a council avoid delay when it needs to use the seal?

Council can resolve to approve a specific activity that requires the use of the seal on several occasions.  For example, a resolution that authorises the transfer of certain council land could also authorise the use of the seal for any contracts that are part of that transfer.  As there are only a limited number of documents in a land transaction that need to be executed under seal, each one of these could be identified in the resolution authorising the purchase or sale of the land.  Clause 400 of the Regulation does not require a separate resolution as each document is prepared.

Council should review the types of documents that are sealed to determine whether use of the seal is always necessary.

15.2.3 Which documents should or can be sealed?

In deciding whether the council seal should be used on a particular document, council needs to consider any legislative requirements.  For example, the Conveyancing Act 1919 (which requires that the seal be placed on certain documents) and cl.400(4) of the Regulation (which prohibits the seal being placed on a document unless the document relates to council business).  It is a matter for the council to decide which documents relate to the business of the council.

A document in the nature of a reference or certificate of service for a council employee does not relate to the business of the council for the purpose of fixing the seal (cl.400(5) of the Regulation).

Council seals should not be used for certificates and statements of merit, or letters of congratulations.  Service to the community or council can be recognised by special text printed on council letterhead or by distinctive certificates specially designed for employee references, certificates of service, Australia Day honours and the like.

15.2.4 How is the seal kept and used?

Clause 400(2) of the Regulation details how the seal is to be kept and used.

Authority to Affix Council's Seal shall only be Pursuant to a resolution of Council the affixing of Council’s seal shall be undertaken in the presence of:-

The Mayor and General Manager, or

One Councillor (the Deputy Mayor in the first instance) and General Manager should the Mayor be unavailable.

15.2.5 Can the general manager delegate to the public officer the power to use the council seal?

Section 378(1) of the Act authorises a general manager to delegate any of his or her functions, other than the power of delegation.  This section allows the general manager to delegate the function of fixing the council seal to documents.   The general manager has not delegated this function to the public officer.

15.2.6 How can a government department ensure that a document is executed by the council itself and not delegated to the general manager?

A department could ensure that a document is made or approved by the council itself by requiring that the document be under seal, or by requesting evidence of the council resolution agreeing to make or accept the document.

PART 16 - SUSPENDED COUNCILLOR(S)

16.1 Circumstances

16.1.1 In what circumstances may a councillor be suspended?

Chapter 14 of the Act provides for the suspension of a councillor in any one of three circumstances:

·    Section 440K authorises the Director General to suspend a councillor for up to 1 month for misbehaviour;

·    Section 482A authorises, by way of alternative to section 440K, the Local Government Pecuniary Interest and Disciplinary Tribunal to suspend a councillor for up to 6 months for misbehaviour;

·    Section 482 authorises the Local Government Pecuniary Interest and Disciplinary Tribunal to suspend a councillor for up to 6 months where it finds a complaint against that councillor proved.

16.2 Effect

16.2.1 What happens when a councillor is suspended from office?

While there is no definition of ‘suspension’ in the Act or the Interpretation Act 1987, the Macquarie Dictionary defines ‘suspend’ as “to debar, usually for a time, from the exercise of an office or function or the enjoyment of a privilege”.  ‘Debar’ is defined as “to bar out or exclude from a place or condition”.

The suspension of a councillor results in that person being excluded from civic office during the period of suspension.  It also means being excluded from the rights and privileges of that office during the period of suspension.  If the councillor is also the mayor, that person is excluded from exercising the function, rights and privileges of both ‘councillor’ and ‘mayor’ during the period of suspension.

A suspended councillor/mayor has no greater access to council documents, council information or council facilities than any other resident or ratepayer.  The suspended councillor/mayor can attend council meetings, but only as a member of the public.  Therefore that person cannot take part in the election of the mayor or deputy mayor, either as a candidate or as a councillor, or vote on any matter before the council.

 


Item 27 Ordinary Meeting 19 December 2011

Item 27 - Annexure 1

 

Work Health and Safety Policy

1 Document Information

Version Date
(Draft or Council Meeting date)

[23 November 2011]

Author

Risk Management Officer

Owner

(Relevant director)

Director of Finance & Corporate Services

Status –

Draft, Approved,  Adopted by Council, Superseded or Withdrawn

Draft

Next Review Date

Within 2 years after Council approval

Minute number
(once adopted by Council)

 

2 Summary

The Work Health and Safety of all persons employed by Cabonne Council and those visiting the organisation are considered to be of the utmost importance.  Resources in line with this importance will be made available allowing Council to comply with all relevant Acts and Regulations and to ensure that the workplace is safe and without risk to health.

3 Approvals

Title

Date Approved

Signature

 

 

 

4 History

Minute No.

Summary of Changes

New Version Date

 

Reviewed by Risk Management Officer

19 January 2010

10/02/17

Readopted by Council

15 February 2010

 

Reviewed by Risk Management Officer

23 November 2011

 

 

 


 

5 Reason

This policy exists to record Cabonne Council’s view that the Work Health and Safety of all workers and those visiting the organisation are considered to be of the utmost importance. 

6 Scope

Addresses the responsibility for Cabonne Council as the Person Controlling a Business or Undertaking to provide a workplace that is safe and healthy for Workers by complying with the requirements of the Work Health and Safety Act and Regulations.

7 Associated Legislation

Work Health and Safety Act 2011 – (WHS Act)

Work Health and Safety Regulation – (WHS Reg)

Approved Codes of Practice – (CoP)

8 Definitions

Local Authority – means a council or county council under the Local Government Act 1993.

Officer – within the meaning of Section 9 of the Corporations Act 2001. An officer of a Public Authority within the meaning of Section 252 of the Work Health and Safety Act 2011 which states that a person who makes, or participates in making, decisions that effect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of that public authority for the purposes of the Act. Officers in Cabonne Council are the General Manager, and each Director.

Person conducting a business or undertaking (PCBU) – conducts the business or undertaking alone or with others and may or may not be conducted for profit or gain. Workers or Officers and elected member of local authorities acting in that capacity are not PCBU’s.

Public authority – means a NSW Government agency, or a local authority.

Reasonably practicable Section 18 WHS Act– in relation to a duty to ensure health and safety imposed on the PCBU, means that which is or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including the likelihood of the hazard or risk occurring and the degree of harm that may result. Applying sound risk management principles.

Worker – a person is a worker if the person carries out work in any capacity for a PCBU and includes;

a.   An employee

b.   A contractor or sub contractor

c.   An employee of a contractor or sub contractor

d.   An employee of a labour hire company who is doing work for the PCBU

e.   An apprentice or trainee

f.    A student gaining work experience

g.   A volunteer

Workplace – a place where work is carried out for the PCBU and includes any place where a worker goes, or is likely to be, while at work.

Volunteer – means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).

9 Responsibilities

9.1 General Manager

The General Manager is an officer of the PCBU and must exercise due diligence to ensure the business or undertaking fulfils its health and safety obligations under the Work Health and Safety Act 2011.

9.1 Directors, Managers and Supervisors

Managers and supervisors at all levels are responsible, within the scope of their authority, for ensuring that:

·    The objectives of this policy are integrated into work practices

·    The tasks required for the successful implementation of Council’s risk management program are undertaken

·    Workers are consulted on work health and safety matters which may affect them

·    Communication on WHS issues is promoted as a normal component of work

·    All plant, substances and work systems used are suitable for their intended purpose in the workplace and meet WHS requirements

·    Adequate training, information, instruction and supervision are provided so that work is conducted safely

·    Contractors, volunteers and visitors are made aware of WHS requirements

·    Immediate and appropriate steps are taken to investigate and rectify any risks to health and safety arising from work activity

·    The attention of senior management is promptly brought to any relevant health and safety issues

·    All accidents and near misses are properly recorded and reported, and an investigation is carried out to determine casual factors

·    Safe access to, and egress from the workplace is maintained at all times

9.2 Workers

   Workers are responsible for:

·    Carrying out their duties in a manner which does not adversely affect their work health and safety or that of others

·    Cooperating with measures introduced in the interests of work health and safety

·    Undertaking any training provided in relation to WHS

·    Immediately reporting all matters which may affect work health and safety to their supervisor

·    Correctly using any information, training, personal protective equipment and safety devices provided

·    Refraining from intentionally misusing or recklessly interfering with anything that has been provided for health and safety reasons

·    Undertaking only those tasks for which they have authorisation and/or the necessary training, and for which all necessary safety arrangements are in place

9.3 Others

   Health and Safety Committee

   The workplace health and safety committee has a duty to:

·    Facilitate cooperation between the PCBU and workers in instigating, developing and carrying out measures designed to ensure the health and safety of workers.

·    Assist in developing standards, rules and procedures relative to health and safety.

·    Such other functions prescribed by the regulations or agreed between the PCBU and the committee.

·    Meet at least every 3 months and at areasonable time when requested by half the members of the committee.

   Health and Safety Representatives (HSR)

   HSR’s play a positive role in representing the health and sfatey interests of workers and   

   their work group by;

·    Investigating health and safety concerns raised by workers of their work group.

·    Look into anything that might be a risk to health and safety of the workers in their work group.

·    Monitoring the health and safety actions taken by the PCBU.

·    Assist in resolving health and safety matters through ongoing consultation and representation.

Contractors and Sub-contractors

All contractors and sub-contractors engaged to perform work on Council premises or locations fall within the definition of workers under the WHS Act and are required to comply with Council’s WHS policies and procedures and to observe directions on health and safety from designated officers of Council.

10 Related Documents

Document Name

Document Location

Internal Reporting Policy

POLICY AND PROCEDURES DATABASE

11 Policy Statement

Cabonne Council, the PCBU, accepts responsibility for the work health and safety of its workers in all their workplaces including offices, depots, quarries and mines, and at any site at which work is performed. Council will comply with all statutory requirements with regard to work health and safety and take all reasonably practicable steps to establish and maintain an effective work health and safety programme.

Council will, as far as is reasonably practicable;

·    Protect workers against harm to their health safety and welfare through the elimination, or if not possible, minimisation of risks arising from work, plant or substances.

·    Provide and maintain workplaces where the work environment is without risk.

·    Provide and maintain safe systems of work.

·    Provide for the safe use and handling of plant, structures and substances.

·    Provided adequate facilities for the welfare at work for all workers in carrying out their business for the PCBU.

·    Provide for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety.

·    Promote the provision of information, instruction, training and supervision necessary to protect persons from risks to health and safety arising from the work.

·    Protect the health of workers and the conditions at the workplace by monitoring for the purpose of preventing illness or injury arising from the business.

·    Encourage unions and the LGSA to take a constructive role in promoting improvements in work health and safety practices to achieve a healthy and safe working environment.


Item 27 Ordinary Meeting 19 December 2011

Item 27 - Annexure 2

 

Health and Safety Committee – Formation Policy

1 Document Information

Version Date
(Draft or Council Meeting date)

[5 December 2011]

Author

Risk Management Officer

Owner

(Relevant director)

Director Finance and Corporate Services

Status –

Draft, Approved,  Adopted by Council, Superseded or Withdrawn

Draft

Next Review Date

2 years from approval

Minute number
(once adopted by Council)

 

2 Summary

Determines membership of Council's Health and Safety Committee.

Approvals

Title

Date Approved

Signature

Director of Finance & Corporate Services 

 

 

3 History

Minute No.

Summary of Changes

New Version Date

4520/3

 

15/08/83

93/7/110-3

Reviewed by RMO October 2010

19/07/93

10/11/11

Adopted by Council at November Meeting

15 November 2010

 

Reviwed by RMO December 2011

5/12/2011

 

 

 

 


 

4 Reason

The Work Health and Safety Act 2011 and associated Regulations identify the need for consultation on WHS matters within an organisation.  For Council to comply with the new raft of consultative measures, the Cabonne Council Health and Safety Committee has been formed to address WHS issues in the workplace.

5 Scope

Cabonne Council must identify the Management appointed staff and the representatives of the salaried and wages staff.

6 Associated Legislation

Work Health and Safety Act 2011 (WHS Act)

Work Health and Safety Regulation (WHS Regs)

Code of Practice Work Health and Safety Consultation Cooperation and Coordination

7 Definitions

WHS consultation arrangements  A person conducting a business or undertaking must consult, so far as is reasonably practicable, with workers who carry out work for the business or undertaking and who are (or are likely to be) directly affected by a health and safety matter (Section 47 WHS Act).

Other agreed arrangements – flexible alternatives for establishing agreed consultation arrangements that meet the business needs and improve decision making.

8 Responsibilities

8.1 GM

The General Manager is responsible for the overall control and implementation of the policy.

8.2 Directors and Managers

Directors and Managers are responsible for the control of the policy and procedures within their area of responsibility.

8.3 Supervisors

Provide employee representatives on the OHS Committee with the necessary time to undertake their OHS duties and attend meetings.

8.4 Employees

Employee representatives actively participate in the consultation process and attend OHS Committee meetings.

9 Related Documents

Document Name

Document Location

Cabonne Council Health and Safety Committee Constitution

 

10 Policy Statement

Council's Health and Safety Committee shall comprise of the Director of Engineering & Technical Services, Operations Manager and the Plant and Depot Coordinator, as well as one (1) indoor staff representative and three (3) wages staff representatives.  The Risk Management Officer will prepare Agendas, take Minutes and be the OHS Committee’s liaison officer.


Item 27 Ordinary Meeting 19 December 2011

Item 27 - Annexure 3

 

Management of Workplace Risk Policy

1 Document Information

Version Date
(Draft or Council Meeting date)

[5 December 2011]

Author

Risk Management Officer

Owner

(Relevant director)

Director of Finance & Corporate Services

Status –

Draft, Approved,  Adopted by Council, Superseded or Withdrawn

Draft

Next Review Date

Within 2 years of Council being elected

Minute number
(once adopted by Council)

 

2 Summary

This policy relates to Council’s responsibilities in relation to the requirements of the Work Health and Safety Act 2011 (WHS) and the associated Work Health and Safety Regulations (WHS Reg) regarding risks in the workplace.

3 Approvals

Title

Date Approved

Signature

 

 

 

4 History

Minute No.

Summary of Changes

New Version Date

07/05/20

 

12/03/07

 

Reviewed by Risk Management Officer

20 January 2010

10/02/17

Readopted by Council

15 February 2010

 

Reviewed by Risk Management Officer

5 December 2011


 

5 Reason

This policy is a regulatory requirement under the Work Health and Safety Act 2011.

6 Scope

This policy covers all Council workers including contractors, volunteers and visitors to Council workplaces.

7 Associated Legislation