MISSION AND VALUES OF COUNCIL

 

"A Sustainable Community that is inclusive, attractive, healthy and pleasant to live in, that uses our land so as to preserve our history and environment, respects the rights and equality of our citizens and manages our future growth wisely."

 

CONFIRMED

MINUTES

 

 

OF THE

 

Ordinary Meeting of Council

 

15 December 2016


OUR VISION

 

"A thriving and friendly community that recognises our history and embraces cultural diversity and economic opportunity, whilst nurturing our unique natural and built environment."

 

OUR MISSION

 

“To deliver affordable and quality Local Government services.”

 

CORE VALUES OF THE SHIRE

 

The core values that underpin the achievement of the

 mission will be based on a strong customer service

focus and a positive attitude:

 

Communication

 

Integrity

 

Respect

 

Innovation

 

Transparency

 

Courtesy

 

DISCLAIMER

The purpose of Council Meetings is to discuss, and where possible, make resolutions about items appearing on the agenda.  Whilst Council has the power to resolve such items and may in fact, appear to have done so at the meeting, no person should rely on or act on the basis of such decision or on any advice or information provided by a Member or Officer, or on the content of any discussion occurring, during the course of the meeting.

 

Persons should be aware that the provisions of the Local Government Act 1995 (Section 5.25 (e)) establish procedures for revocation or rescission of a Council decision.  No person should rely on the decisions made by Council until formal advice of the Council decision is received by that person.  The Shire of Broome expressly disclaims liability for any loss or damage suffered by any person as a result of relying on or acting on the basis of any resolution of Council, or any advice or information provided by a Member or Officer, or the content of any discussion occurring, during the course of the Council meeting.

 


Minutes – Ordinary Meeting of Council 15 December 2016                                                                   Page 3 of 4

 

Councillor

Cr R Johnston

Cr H Tracey

Cr M Fairborn

Cr W Fryer

Cr E Foy

Cr D Male

Cr P Matsumoto

Cr C Mitchell

Cr B Rudeforth

2015

26 November

 

 

 

 

 

 

LOA

 

 

2015

17 December

 

 

 

 

 

 

 

 

 

2016

25 February

 

 

 

 

A

 

 

 

 

2016

31 March

 

 

 

 

LOA

 

 

 

 

2016

28 April

 

LOA

A

LOA

LOA

 

 

 

 

2016

26 May

 

 

A

 

 

 

LOA

 

 

2016

30 June

 

LOA

 

 

 

 

 

 

LOA

2016

28 July

 

 

 

 

 

 

 

 

 

2016

25 August

 

 

 

 

LOA

 

 

 

 

2016

29 September

 

A

 

 

 

LOA

 

 

 

2016

27 October

 

 

 

 

 

 

 

LOA

 

2016

24 November

 

 

LOA

 

 

A

 

 

 

2016

15 December

 

 

 

 

A

 

 

 

A

 

·       LOA (Leave of Absence)

·           NA (Non Attendance)

·       A (Apologies)

 

2.25.       Disqualification for failure to attend meetings

      (1)     A council may, by resolution, grant leave of absence, to a member.

      (2)     Leave is not to be granted to a member in respect of more than 6 consecutive ordinary meetings of the council without the approval of the Minister, unless all of the meetings are within a period of 3 months.

   (3A)     Leave is not to be granted in respect of —

                 (a)     a meeting that has concluded; or

                 (b)     the part of a meeting before the granting of leave.

      (3)     The granting of the leave, or refusal to grant the leave and reasons for that refusal, is to be recorded in the minutes of the meeting.

      (4)     A member who is absent, without obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing his or her membership of the council, unless all of the meetings are within a 2 month period.

   (5A)     If a council holds 3 or more ordinary meetings within a 2 month period, and a member is absent without leave throughout each of those meetings, the member is disqualified if he or she is absent without leave throughout the ordinary meeting of the council immediately following the end of that period.

      (5)     The non‑attendance of a member at the time and place appointed for an ordinary meeting of the council does not constitute absence from an ordinary meeting of the council —

                 (a)     if no meeting of the council at which a quorum is present is actually held on that day; or

                 (b)     if the non‑attendance occurs —

                               (i)     while the member has ceased to act as a member after written notice has been given to the member under section 2.27(3) and before written notice has been given to the member under section 2.27(5); or

                              (ii)     while proceedings in connection with the disqualification of the member have been commenced and are pending; or

                           (iiia)     while the member is suspended under section 5.117(1)(a)(iv); or

                             (iii)     while the election of the member is disputed and proceedings relating to the disputed election have been commenced and are pending.

      (6)     A member who before the commencement of the Local Government Amendment Act 2009 section 5 1 was granted leave during an ordinary meeting of the council from which the member was absent is to be taken to have first obtained leave for the remainder of that meeting.

               [Section 2.25 amended by No. 49 of 2004 s. 19(1); No. 17 of 2009 s. 5.]

 

 


MinutesOrdinary Meeting of Council 15 December 2016                                                                              Page 5 of 6

 

SHIRE OF BROOME

Ordinary Meeting of Council

Thursday 15 December 2016

INDEX – Minutes

 

1.               Official Opening.. 9

2.               Attendance and Apologies. 9

3.               Declarations Of Financial Interest / Impartiality. 9

12.1   MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016. 11

4.               Public Question Time. 139

5.               Confirmation Of Minutes. 140

6.               Announcements By President Without Discussion.. 140

7.               Petitions. 140

8.               Matters For Which The Meeting May Be Closed.. 140

9.               Reports of Officers. 142

9.1      Our People. 143

Nil

9.2      Our Place. 145

9.2.1     PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR. 146

9.2.2     REVIEW OF PARKING LOCAL PLANNING POLICIES FOLLOWING PUBLIC COMMENT PERIOD.. 204

9.2.3     TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016. 224

9.2.4     BROOME SURF LIFE SAVING CLUB BUILDING DEVELOPMENT - REQUEST FOR ASSISTANCE. 297

9.2.5     BROOME GOLF CLUB COMMUNITY ENGAGEMENT FOR PROPOSED RE-DEVELOPMENT ON THE CLUBHOUSE RESERVE. 320

9.2.6     PROPOSED LANEWAY CLOSURES - COMMUNITY ENGAGEMENT PLAN.. 440

9.2.7     CONSENT TO EASEMENT TO ENERGY DEVELOPMENTS PTY LTD FOR NATURAL GAS TRANSMISSION PIPELINE FROM  BROOME FUEL STORAGE FACILITY TO BROOME POWER STATION.. 465

9.3      Our Prosperity. 503

9.3.1     CHINATOWN REVITALISATION PROJECT - CULTURAL & INTERPRETIVE CENTRE FEASIBILITY PROJECT. 504

9.3.2     TRADING IN PUBLIC PLACES POLICY. 544

9.3.3     EXPRESSION OF INTEREST FOR 2017 WA REGIONAL TOURISM CONFERENCE. 574

9.4      Our Organisation.. 597

9.4.1     MONTHLY PAYMENT LISTING - NOVEMBER 2016. 598

9.4.2     MONTHLY STATEMENT OF FINANCIAL ACTIVITY REPORT NOVEMBER 2016. 619

9.4.3     OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - THE RETURNED & SERVICES LEAGUE OF AUSTRALIA.. 737

9.4.4     OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - TRUSTEES OF THE GRAND LODGE OF WA.. 738

9.4.5     OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATIONS 2015/2016 AND 2016/2017 - NYAMBA BURU YAWURU LIMITED.. 739

9.4.6     INTEGRATED PLANNING AND REPORTING FRAMEWORK - STRATEGIC COMMUNITY PLAN AND CORPORATE BUSINESS PLAN REVIEW... 740

9.4.7     DRAFT POLICY - PROCUREMENT VIA PANELS OF PRE-QUALIFIED SUPPLIERS. 813

9.4.8     PUBLIC HEALTH ACT 2016 - UPDATE AND DELEGATION OF POWER TO APPOINT AUTHORISED OFFICERS. 823

10.            Reports of Committees. 833

10.1      YAWURU PARK COUNCIL PROGRESS REPORT - NOVEMBER 2016 MINUTES. 834

10.2      APPOINTMENT OF MEMBERS TO THE ECONOMIC DEVELOPMENT ADVISORY COMMITTEE AND AMENDMENTS TO THE TERMS OF REFERENCE. 906

10.3      APPOINTMENT OF MEMBERS TO THE ACCESS AND INCLUSION ADVISORY COMMITEE AND AMENDMENTS TO THE TERMS OF REFERENCE. 912

11.            Notices of Motion.. 917

12.            Business of an Urgent Nature. 917

12.1      MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016. 917

13.            Questions By Members Of Which Due Notice Has Been Given.. 917

14.            Matters Behind Closed Doors. 917

9.4.3  OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - THE RETURNED & SERVICES LEAGUE OF AUSTRALIA.. 918

9.4.4  OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - TRUSTEES OF THE GRAND LODGE OF WA.. 920

9.4.5  OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATIONS 2015/2016 AND 2016/2017 - NYAMBA BURU YAWURU LIMITED.. 921

15.            Meeting Closure. 922

 


MinutesOrdinary Meeting of Council 15 December 2016                                                                              Page 8 of 9

 

 

NOTICE OF MEETING

 

 

 

Dear Council Member,

 

 

The next Ordinary Meeting of the Shire of Broome will be held on Thursday, 15 December 2016 in the Council Chambers, Corner Weld and Haas Streets, Broome, commencing at 5.00pm.

 

 

 

Regards

 

 

S MASTROLEMBO

Acting Chief Executive Officer

 

08/12/2016

 


Minutes – Ordinary Meeting of Council 15 December 2016                                                                Page 9 of 10

MINUTES OF THE Ordinary Meeting of Council OF THE SHIRE OF BROOME,

HELD IN THE Council Chambers, Corner Weld and Haas Streets, Broome, ON Thursday 15 December 2016, COMMENCING AT 5.00pm.

 

1.         Official Opening

 

The Chairman welcomed Councillors, Officers and members of the public and declared the meeting open at 5.01pm. The Chairman further welcomed a member of the Youth Advisory Council in attendance.

 

2.         Attendance and Apologies 

 

Attendance:              Cr R Johnston             Shire President

                                      Cr H Tracey                 Deputy Shire President

                                      Cr M Fairborn

                                      Cr W Fryer

                                      Cr D Male

                                      Cr P Matsumoto

                                      Cr C Mitchell

 

Leave of Absence:   Nil

 

Apologies:                  Cr B Rudeforth

                                      Cr E Foy

 

Officers:                       Mr S Mastrolembo     Acting Chief Executive Officer

                                      Mr C Zepnick              Acting Director Community Development

                                      Mr J Watt                     Director Corporate Services

                                      Ms A Nugent              Director Development Services

                                      Mr S Harding               Director Infrastructure

                                      Mr S Penn                    Media and Promotions Officer

                                      Ms M Wevers              Senior Administration and Governance Officer

 

Public Gallery:            Kaleb Harding

                                      Ty Matson                    Shire of Broome

                                      Carol Howe                Golf Club

                                      Sandy Joffe                 Broome Circle

                                      Brendan Renkin                   Broome Circle

                                      Sue Urquhart               Broome Circle

                                      Maggie Mildenhall    Broome Circle

                                      Tehani Savu                Youth Advisory Council

                                      Amy Andison              Shire of Broome

                                      Rob Menzies               Broome International Airport

                                      Bruce Rudeforth

                                      Liz Mulnchow              Golf Club

                                      Bill Minns                      Golf Club

 

3.         Declarations Of Financial Interest / Impartiality

 

FINANCIAL INTEREST

Councillor

Item No

Item

Nature of Interest

Cr P Matsumoto

9.4.5

OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATIONS 2015/2016 AND 2016/2017 - NYAMBA BURU YAWURU LIMITED

Financial – member of Nyamba Buru Yawuru and native title holder director.

 

IMPARTIALITY

Councillor

Item No

Item

Nature of Interest

Cr C Mitchell

9.2.5

BROOME GOLF CLUB COMMUNITY ENGAGEMENT FOR PROPOSED RE-DEVELOPMENT ON THE CLUBHOUSE RESERVE

Impartiality – association with Broome Golf Club as a financial member.

Cr P Matsumoto

9.2.5

BROOME GOLF CLUB COMMUNITY ENGAGEMENT FOR PROPOSED RE-DEVELOPMENT ON THE CLUBHOUSE RESERVE

Impartiality – association with Nyamba Buru as a native title holder (PBC)

Cr P Matsumoto

9.3.1

CHINATOWN REVITALISATION PROJECT - CULTURAL & INTERPRETIVE CENTRE FEASIBILITY PROJECT

Impartiality – association with Nyamba Buru (PBC)

Cr C Mitchell

9.4.3

OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - THE RETURNED & SERVICES LEAGUE OF AUSTRALIA

Impartiality – association with Broome RSL as a member of the RSL

Cr W Fryer

9.4.3

OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - THE RETURNED & SERVICES LEAGUE OF AUSTRALIA

Impartiality – association with the RSL as a financial member over a number of years.

 

The Chairman advised that he had accepted an item of Urgent Business – 12.1 MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016.

 

Council Resolution:

Moved: Cr R Johnston                                             Seconded: Cr D Male

That Item 12.1 be brought forward to the next item of business.

CARRIED UNANIMOUSLY 7/0

12.1       MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016

LOCATION/ADDRESS:                            Nil

APPLICANT:                                              Nil

FILE:                                                           PER521

AUTHOR:                                                   Director Corporate Services

CONTRIBUTOR/S:                                    Nil

RESPONSIBLE OFFICER:                          Shire President 

DISCLOSURE OF INTEREST:                     Nil

DATE OF REPORT:                                    14 December 2016

 

SUMMARY:         This report presents to Council the outcomes of the Chief Executive Officer Recruitment Advisory Committee’s meeting held 14 December 2016, and seeks adoption of the Committee recommendations pertaining to the:

1.   Chief Executive Officer Application Package;

2.   Draft Chief Executive Officer Employment Contract;

3.   Closing date for advertising the Chief Executive Officer position;

4.   Process for selection and appointment of a Chief Executive Officer; and

5.   Chief Executive Officer Recruitment Advisory Committee Terms of Reference.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 16 November 2016             Item 6.4.2

SMC 9 December 2016                Item 6.1.1

 

At the 9 December 2016 Special Meeting of Council (SMC), Council endorsed the formation of the CEO Recruitment Advisory Committee (CEORAC), appointed three (3) Committee members and two (2) deputies and approved the Committee Terms of Reference. Council also selected the Western Australia Local Government Association (WALGA) as the successful respondent for Request for Quote (RFQ) 16-95 – Recruitment Facilitator.

 

Following the recruitment process outlined in the Committee Terms of Reference, the Recruitment Facilitator has been engaged to oversee and guide the Committee through the CEO recruitment process.

 

The CEORAC met on 14 December to progress the recruitment of the CEO through the development of various recruitment criteria as per the Local Government Act 1995 and the Local Government (Administration) Regulations 1996.

 

COMMENT

 

Under Regulation 18A of the Local Government (Administration) Regulations 1996 CEO recruitment requirements must be determined by Council prior to advertising a CEO vacancy. These requirements include the development of a CEO Position Description (PD), Selection Criteria and Contract of Employment for use in the recruitment process.

 

The Recruitment Facilitator developed the following draft documents for consideration at the 14 December CEORAC meeting in order to progress to advertising:

a)  A CEO Recruitment Package comprising a CEO Position Description (PD) and Key Selection Criteria; and

b)  A Draft CEO Employment Contract outlining the proposed contract of employment and remuneration package.

 

The CEO Recruitment Package (Attachment 2) was amended as per the committee’s request and circulated to CEORAC members following the 14 December meeting. The revised document has been confirmed by CEORAC members as accurately encapsulating the changes requested.

 

The CEORAC now presents these documents to Council for consideration and endorsement to allow the position to be advertised.

 

It should be noted that the CEO Employment Contract has been developed in accordance with the Salaries and Allowances Tribunal on Local Government Chief Executive Officers Report (SATLGCEOR). This document will remain in draft form until negotiations are finalised. Council will then be asked to consider the final CEO Employment Contract

 

Process for Selection and Appointment of a CEO

 

Regulation 18C of the Local Government (Administration) Regulations 1996 requires that Council approve the process to be used for the selection and appointment of a CEO before the position is advertised.

 

The recruitment facilitator has developed a Recruitment Timeline (Attachment 3) outlining key dates associated with the CEO recruitment process. The Recruitment Timeline is reliant on the outcomes of CEORAC and Council meetings, particularly in relation to the decision on the closing date for applications. The Recruitment Timeline was amended as per the committee’s request and circulated to CEORAC members following the 14 December meeting. The revised document has been confirmed by CEORAC members as accurately encapsulating the changes requested.

 

Council is asked to consider the Recruitment Timeline presented by the CEORAC as representative of the process for selection and appointment of a CEO, in accordance with Regulation 18C of the Local Government (Administration) Regulations 1996.

 

Advertising

 

The CEORAC is required to recommend to Council a date and time for the closing of applications for the position.

 

When selecting a closing date for the application, consideration should be given to the fact that the recruitment process is occurring over the Christmas and New Year break. As such it is expected that some candidates will be on leave. To ensure that Council increases the likelihood of securing a high quality candidate, it is recommended that the position is advertised with a closing date of 18 January 2017. This will provide candidates with an appropriate amount of time to respond to the position advertisement.

 

Council should note that selecting an earlier closing date may discourage candidates from applying for the position.

 

Terms of Reference

 

The Recruitment Facilitator has recommended a number of changes to the CEORAC Terms of Reference. The most significant revision authorises the CEORAC to undertake shortlisting and interview of applicants for the position, inclusive of contract negotiations with the preferred candidate, conditional upon the Committee making a recommendation for Council’s consideration to appoint the preferred candidate.

 

To ensure legislative compliance and improve the administrative function of the Committee the following revisions have also been made:

 

1.   Increase in the number of members in attendance to ensure a quorum from 2 to 3;

2.   Further definition around the role of the Recruitment Facilitator;

3.   Changes to the Recruitment Timeline; and

4.   Inclusion of the Director Corporate Services as secretariat for the Committee.

 

The CEORAC has endorsed these changes which are now presented to Council for consideration.

 

CONSULTATION

 

Western Australia Local Government Association

 

STATUTORY ENVIRONMENT

 

Local Government Act 1995

 

Division 4 — Local government employees

5.36.       Local government employees

      (1)     A local government is to employ — 

                 (a)     a person to be the CEO of the local government; and

                 (b)     such other persons as the council believes are necessary to enable the functions of the local government and the functions of the council to be performed.

      (2)     A person is not to be employed in the position of CEO unless the council — 

                 (a)     believes that the person is suitably qualified for the position; and

                 (b)     is satisfied* with the provisions of the proposed employment contract.

          * Absolute majority required.

      (3)     A person is not to be employed by a local government in any other position unless the CEO — 

                 (a)     believes that the person is suitably qualified for the position; and

                 (b)     is satisfied with the proposed arrangements relating to the person’s employment.

      (4)     Unless subsection (5A) applies, if the position of CEO of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed.

   (5A)     Subsection (4) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class.

      (5)     For the avoidance of doubt, subsection (4) does not impose a requirement to advertise a position before the renewal of a contract referred to in section 5.39.

               [Section 5.36 amended by No. 49 of 2004 s. 44; No. 17 of 2009 s. 21.]

 

5.39.       Contracts for CEO and senior employees

      (1)     Subject to subsection (1a), the employment of a person who is a CEO or a senior employee is to be governed by a written contract in accordance with this section.

   (1a)     Despite subsection (1) —

                 (a)     an employee may act in the position of a CEO or a senior employee for a term not exceeding one year without a written contract for the position in which he or she is acting; and

                 (b)     a person may be employed by a local government as a senior employee for a term not exceeding 3 months, during any 2 year period, without a written contract.

      (2)     A contract under this section — 

                 (a)     in the case of an acting or temporary position, cannot be for a term exceeding one year;

                 (b)     in every other case, cannot be for a term exceeding 5 years.

      (3)     A contract under this section is of no effect unless — 

                 (a)     the expiry date is specified in the contract; and

                 (b)     there are specified in the contract performance criteria for the purpose of reviewing the person’s performance; and

                 (c)     any other matter that has been prescribed as a matter to be included in the contract has been included.

      (4)     A contract under this section is to be renewable and subject to subsection (5), may be varied.

      (5)     A provision in, or condition of, an agreement or arrangement has no effect if it purports to affect the application of any provision of this section.

      (6)     Nothing in subsection (2) or (3)(a) prevents a contract for a period that is within the limits set out in subsection 2(a) or (b) from being terminated within that period on the happening of an event specified in the contract.

      (7)     A CEO is to be paid or provided with such remuneration as is determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7A.

      (8)     A local government is to ensure that subsection (7) is complied with in entering into, or renewing, a contract of employment with a CEO.

               [Section 5.39 amended by No. 49 of 2004 s. 46(1)‑(3); No. 2 of 2012 s. 13 (correction to reprint in Gazette 28 Mar 2013 p. 1317).]

 

5.40.       Principles affecting employment by local governments

               The following principles apply to a local government in respect of its employees — 

                 (a)     employees are to be selected and promoted in accordance with the principles of merit and equity; and

                 (b)     no power with regard to matters affecting employees is to be exercised on the basis of nepotism or patronage; and

                 (c)     employees are to be treated fairly and consistently; and

                 (d)     there is to be no unlawful discrimination against employees or persons seeking employment by a local government on a ground referred to in the Equal Opportunity Act 1984 or on any other ground; and

                 (e)     employees are to be provided with safe and healthy working conditions in accordance with the Occupational Safety and Health Act 1984; and

                   (f)     such other principles, not inconsistent with this Division, as may be prescribed.

 

Local Government (Administration) Regulations 1996

Part 4 — Local government employees

               [Heading inserted in Gazette 26 Aug 2011 p. 3482.]

18A.  Vacancy in position of CEO or senior employee to be advertised (Act s. 5.36(4) and 5.37(3))

      (1)     If a position of CEO, or of a senior employee, of a local government becomes vacant, the local government is to advertise the position in a newspaper circulating generally throughout the State unless it is proposed that the position be filled by —

                 (a)     a person who is, and will continue to be, employed by another local government and who will fill the position on a contract or contracts for a total period not exceeding 5 years; or

                 (b)     a person who will be acting in the position for a term not exceeding one year.

      (2)     An advertisement referred to in subregulation (1) is to contain —

                 (a)     the details of the remuneration and benefits offered; and

                 (b)     details of the place where applications for the position are to be submitted; and

                 (c)     the date and time for the closing of applications for the position; and

                 (d)     the duration of the proposed contract; and

                 (e)     contact details for a person who can provide further information about the position; and

                   (f)     any other information that the local government considers is relevant.

               [Regulation 18A inserted in Gazette 31 Mar 2005 p. 1037-8; amended in Gazette 19 Aug 2005 p. 3872; 3 May 2011 p. 1594.]

18B.  Contracts of CEOs and senior employees, content of (Act s. 5.39(3)(c))

               For the purposes of section 5.39(3)(c), a contract governing the employment of a person who is a CEO, or a senior employee, of a local government is to provide for a maximum amount of money (or a method of calculating such an amount) to which the person is to be entitled if the contract is terminated before the expiry date, which amount is not to exceed whichever is the lesser of —

                 (a)     the value of one year’s remuneration under the contract; or

                 (b)     the value of the remuneration that the person would have been entitled to had the contract not been terminated.

               [Regulation 18B inserted in Gazette 13 May 2005 p. 2086.]

18C.  Selection and appointment process for CEOs

               The local government is to approve a process to be used for the selection and appointment of a CEO for the local government before the position of CEO of the local government is advertised.

               [Regulation 18C inserted in Gazette 31 Mar 2005 p. 1038.]

18E.   False information in application for CEO position, offence

               A person must not, in connection with an application for the position of CEO of a local government —

                 (a)     make a statement, or give any information, as to academic, or other tertiary level, qualifications held by the applicant that the person knows is false in a material particular; or

                 (b)     make a statement, or give any information, as to academic, or other tertiary level, qualifications held by the applicant which is false or misleading in a material particular, with reckless disregard as to whether or not the statement or information is false or misleading in a material particular.

               Penalty: a fine of $5 000.

               [Regulation 18E inserted in Gazette 31 Mar 2005 p. 1038-9; amended in Gazette 19 Aug 2005 p. 3872; 4 Mar 2016 p. 650.]

18F.   Remuneration and benefits of CEO to be as advertised

               The remuneration and other benefits paid to a CEO on the appointment of the CEO are not to differ from the remuneration and benefits advertised for the position under section 5.36(4).

               [Regulation 18F inserted in Gazette 31 Mar 2005 p. 1039.]

18G. Delegations to CEOs, limits on (Act s. 5.43)

               Powers and duties of a local government exercised under the following provisions are prescribed under section 5.43(i) as powers and duties that a local government cannot delegate to a CEO —

                 (a)     section 7.12A(2), (3)(a) or (4); and

                 (b)     regulations 18C and 18D.

               [Regulation 18G inserted in Gazette 31 Mar 2005 p. 1039.]

 

POLICY IMPLICATIONS

 

Staff Housing                                                              2.2.2

Education and Study Assistance                            2.2.3

Recruitment and Selection of Executive Staff    2.2.6

 

FINANCIAL IMPLICATIONS

 

Salary conditions contained within the contracts of local government CEO’s are determined by the SATLGCEO. The Shire of Broome is considered a Band 2 local government under the SATLGCEO. The salary stated in the CEO Recruitment Package and the Draft CEO Employment Contract reflects the permissible salary range for a Western Australian Band 2 local government CEO.

 

The SATLGCEO is reviewed annually and a copy of the latest publication, as of the 12 April 2016, is attached to the CEORAC minutes.

 

RISK

 

Risk:                               The Committee recommendation is not endorsed by Council.

Likelihood :                  Possible

Impact:                        Moderate

Initial Rating:                High

Residual Rating:                             Possible and Minor resulting in a Moderate risk

 

STRATEGIC IMPLICATIONS  

 

Our People Goal – Foster a community environment that is accessible, affordable, inclusive, healthy and safe:

 

Effective communication

 

Affordable services and initiatives to satisfy community need

 

Our Organisation Goal – Continually enhance the Shire’s organisational capacity to service the needs of a growing community:

 

An organisational culture that strives for service excellence

 

Responsible resource allocation

 

Improved systems, processes and compliance

 

 

VOTING REQUIREMENTS

Absolute Majority

 

Council Resolution:

(Report Recommendation)

Moved: Cr C Mitchell                                              Seconded: Cr P Matsumoto

That Council, on recommendation from the Chief Executive Officer Recruitment Advisory Committee:

1.       Notes the Salaries and Allowances Tribunals Local Government Chief Executive Officers Report;

2.       Endorses the Chief Executive Officer Recruitment Package, as attached;

3.       Endorses the Draft Chief Executive Officer Employment Contract;

4.       Authorises the Acting Chief Executive Officer to advertise the Chief Executive Officer Recruitment Package with a closing date of 18 January 2017 and a closing time of 4:00pm;

5.       Endorses the Chief Executive Officer Recruitment Timeline, as attached, as the process for selection and appointment of a CEO, in accordance with Regulation 18C of the Local Government (Administration) Regulations 1996; and

6.       Endorses the amendments to the Chief Executive Officer Recruitment Advisory Committee Terms of Reference.

CARRIED UNANIMOUSLY BY ABSOLUTE MAJORITY 7/0

 

Attachments

1.

Minutes of the Chief Executive Officer Recruitment Advisory Committee 14 December 2016

2.

CEO Recruitment Package

3.

CEO Recruitment Timeline

  


Item 12.1 - MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016

 

 

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Item 12.1 - MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016

 

 

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Item 12.1 - MINUTES OF THE CHIEF EXECUTIVE OFFICER RECRUITMENT ADVISORY COMMITTEE MEETING HELD 14 DECEMBER 2016

 

 

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MinutesOrdinary Meeting of Council 15 December 2016                                                                     Page 139 of 140

 

 

4.         Public Question Time

 

The following questions were received from Sandy Joffe prior to the meeting:

 

Question One:

Does the Shire of Broome give consideration to clients in financial hardship who are unable to pay their Rates? If so, what form does this consideration take? Does the Shire of Broome have any intention of introducing such a policy , and if not why not?

 

Answer provided by Director Corporate Services:

The Shire of Broome offers the following options to all ratepayers for the Payment of Rates;

 

1.       Payment in full

2.       Payment by 2 Instalments

3.       Payment by 4 Instalments

4.       Alternative Payment Arrangement as negotiated with the ratepayer.

 

If the instalment options shown on the Rate Notice are not suitable, ratepayers may submit an alternative payment proposal.

 

Alternate Payment Arrangements do attract a fee of $45.00. In addition penalty interest of 11% per annum continues to accrue on the property as long as any amount is due on the account.

 

The Shire of Broome does not have a Financial Hardship Policy, however does offer alternative payment arrangements for all ratepayers.

 

Question Two:

Is there a regulated timeframe within which Shire Officers are required to respond to urgent correspondence? What is this time frame and what recourse does the community have if there is a breach in this regard?

 

Answer provided by Director Corporate Services:

There is no regulated timeframe within which Shire Officers are required to respond to correspondence. The Shire has a Customer Service Charter detailing its commitment to provide the highest standards of service and ensure that the needs of our customers are met in a professional and ethical manner, with courteous and efficient service. As per the Shire of Broome Customer Service Charter, we are committed to being as responsive as possible to any issues, enquiries and concerns.

 

If contacted in person we aim to respond to a request as soon as practicable. If no staff member is available we aim to contact the enquirer within two working days.

 

Written enquiries may be acknowledged as soon as practicable and the Shire endeavors to provide a written response within 10 working days.

 

Complaints are directed to the appropriate officer within the organisation, usually the Director of the relevant business unit, for response. Complaints are dealt with on a case by case basis.

 

Hard copies of the Shire's Customer Service Charter have been provided at the entrance to Council Chambers.

 

The Chairman advised public questions had been received from Daryl and Angela Roberson however as they were not in attendance the questions would be processed administratively.

 

5.         Confirmation Of Minutes

 

Council Resolution:

Moved: Cr H Tracey                                                 Seconded: Cr M Fairborn

That the Minutes of the Ordinary Meeting of Council held on 24 November 2016 be confirmed as a true and accurate record of that meeting.

CARRIED UNANIMOUSLY 7/0

 

Council Resolution:

Moved: Cr D Male                                                    Seconded: Cr P Matsumoto

That the Minutes of the Special Meeting of Council held on 9 December 2016 be confirmed as a true and accurate record of that meeting.

CARRIED UNANIMOUSLY 7/0

 

6.         Announcements By President Without Discussion

 

6.1 – The Chairman advised that the Broome Liquor Accord meeting involved discussions regarding the trial of a cashless debit card system which is underway in Ceduna and the Shire of Wyndham and East Kimberley. He advised that the interim report was excellent and there were many positive signs. As a result, he recommended to the Broome Liquor Accord that the Shire of Broome could potentially adopt the same system and that this should be discussed by Council in February next year.

 

7.         Petitions

 

Nil.

 

8.         Matters For Which The Meeting May Be Closed

The Chief Executive Officer advises that there are matters for discussion on the agenda for which the meeting may be closed, in accordance with section 5.23(2) of the Local Government Act 1995.

Council Resolution:

Moved: Cr C Mitchell                                              Seconded: Cr M Fairborn

That the following Agenda items be considered under 14. Matters Behind Closed Doors, in accordance with section 5.23(2) of the Local Government Act 1995, as specified:

9.4.3      OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - THE RETURNED & SERVICES LEAGUE OF AUSTRALIA

Item 9.4.3 and any attachments are confidential in accordance with Section 5.23(2) of the Local Government Act 1995 section 5.23(2)((e)(iii)) as it contains “a matter that if disclosed, would reveal  information about the business, professional, commercial or financial affairs of a person, where the information is held by, or is about, a person other than the local government”, and section 5.23(2)(d) as it contains “legal advice obtained, or which may be obtained, by the local government and which relates to a matter to be discussed at the meeting”.

9.4.4      OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATION 2014/2015 - TRUSTEES OF THE GRAND LODGE OF WA

Item 9.4.4 and any attachments are confidential in accordance with Section 5.23(2) of the Local Government Act 1995 section 5.23(2)((e)(iii)) as it contains “a matter that if disclosed, would reveal  information about the business, professional, commercial or financial affairs of a person, where the information is held by, or is about, a person other than the local government”, and section 5.23(2)(d) as it contains “legal advice obtained, or which may be obtained, by the local government and which relates to a matter to be discussed at the meeting”.

9.4.5      OBJECTION TO THE RATE RECORD - NON-RATEABLE LAND UNDER SECTION 6.26(2)(G) - RATES EXEMPTION APPLICATIONS 2015/2016 AND 2016/2017 - NYAMBA BURU YAWURU LIMITED

Item 9.4.5 and any attachments are confidential in accordance with Section 5.23(2) of the Local Government Act 1995 section 5.23(2)((e)(iii)) as it contains “a matter that if disclosed, would reveal  information about the business, professional, commercial or financial affairs of a person, where the information is held by, or is about, a person other than the local government”, and section 5.23(2)(d) as it contains “legal advice obtained, or which may be obtained, by the local government and which relates to a matter to be discussed at the meeting”.

CARRIED UNANIMOUSLY 7/0

 


 

9.

Reports

of

Officers


 

9.1

 

Our People

 

_DSC2089

 

 

PRIORITY STATEMENT

 

Embracing our cultural diversity and the relationship between our unique heritage and people, we aim to work in partnership with the community to provide relevant, quality services and infrastructure that meet the needs and aspirations of our community and those visiting and doing business in our region.

 

Supporting and contributing to the well-being and safety of our community is paramount, as is our focus on community engagement and participation.

 

Council aims to build safe, strong and resilient communities with access to services, infrastructure and opportunities that will result in an increase in active civic participation, a reduction in anti-social behaviour and improved social cohesion.

 


Minutes – Ordinary Meeting of Council 15 December 2016                                                         Page 144 of 145

There are no reports in this section. 


 

9.2

 

Our Place

 

cablebeach

 

 

PRIORITY STATEMENT

 

The Shire of Broome has an abundance of unique natural features, coastal attractions, significant streetscapes, historic precincts and a mix of old and new urban developments.

 

Our aim is for all communities and settled areas, including the Broom Township, to be a place where the natural environment, on which life depends, is maintained, whilst at the same time the built environment contributes to the economy and a quality lifestyle for all.

 

Preserving the Shire’s natural environment is a critical community outcome. Council will put into place strategies that nurture and improve the Shire’s unique environment and biodiversity.

 

The Shire will work in partnership with the community and other agencies to ensure responsible and accountable management of both the natural and build environments is achieved in the short term and for future generations.


Minutes – Ordinary Meeting of Council 15 December 2016                                                         Page 146 of 147

 

9.2.1      PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR

LOCATION/ADDRESS:                            Lot 302 Fairway Drive, Billingurr

APPLICANT:                                              Formscape on behalf of John Geappen

FILE:                                                           LPS6/6

AUTHOR:                                                   Strategic Planning Coordinator

CONTRIBUTOR/S:                                    Nil

RESPONSIBLE OFFICER:                          Director Development Services

DISCLOSURE OF INTEREST:                     Nil

DATE OF REPORT:                                    23 November 2016

 

SUMMARY:         A Scheme Amendment has been received to include an ‘Additional Use’ designation on Lot 302 Fairway Drive, Billingurr. The ‘Additional Use’ will facilitate the development of a ‘Zoological Gardens’ land use to allow for ancillary tourist activities in addition to the site’s predominant use to pen and graze camels associated with the camel tours on Cable Beach.

 

This report recommends that Council resolve to adopt the proposed Scheme Amendment for the purpose of public advertising. It further recommends that the amendment be classified as a ‘standard amendment’ under the Planning and Development (Local Planning Schemes) Regulations 2015 for the reasons set out in this report.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 27 August 2015                        Item 9.3.3

OMC 28 April 2016                             Item 9.2.5

 

Lot 302 Fairway Drive (the subject land) is one of three parcels of Unallocated Crown Land within the townsite of Broome that is currently used for the keeping of camels associated with the three licenced camel tour operators on Cable Beach.  The subject land was originally leased to Mr John Geappen in 2005 for a period of 10 years. The permitted uses of the subject land under this lease included ‘to pen and graze camels and caretaker’s residence.’ The lease for the subject land expired on 1 October 2015.

 

In June 2015 the Department of Lands (DoL) requested comment from the Shire regarding a request from the then-lessee to convert the subject land to freehold title. This was considered at the August 2015 Ordinary Council Meeting and Council resolved to object to the freehold disposal of the subject land and advise DoL that it wished to assume responsibility for the land via a Reservation with a Management Order, including power to lease.

 

In January 2016 the Shire received further correspondence from DoL requesting comment on:

 

·    the intended purpose of the proposed Reserve for the subject land should it be reserved and vested to the Shire; and

·   whether in the interim the Shire would support a new lease over the subject land until 30 September 2025, for the purpose of ‘to pen and graze camels and caretaker’s residence.’

 

Whilst this matter was under consideration the now-former lessee approached both DoL and the Shire and expressed a desire to undertake a  broader range of activities on the subject land, including tours of the camel farm, short camel rides and the sale of promotional material.  As a result, DoL sought comment from the Shire in March 2016 regarding whether it would support an additional use being incorporated into the lease for the subject land. The use was described as ‘commercial tourism purposes.’ This request was considered by Council in April 2016, where it resolved to:

 

Request the Chief Executive Officer to write to the Department of Lands:

 

(a)     Supporting the issue of a further lease for Lot 302 Fairway Drive, to expire 30 September 2025;

 

(b)     Supporting the inclusion of ‘to pen and graze camels and undertake ancillary tourist commercial uses, and caretaker’s dwelling’ as permitted uses under such lease;

 

(c)     Requesting that the lease terms make clear that an amendment to Local Planning Scheme No. 6 will be required prior to the commencement of ancillary tourist commercial uses on the site, and that this amendment must be undertaken by the lessee at his cost;

 

(d)     Reiterating that in the long term the Shire wishes to assume management for the subject site, in addition to Lots 303 and 501 Fairway Drive, through the creation of Reserves and Management Orders under the Land Administration Act 1997; and

 

(e)     Advising that the intended purpose of the Reserve to be vested with the Shire would be ‘animal keeping, tourism and caretaker’s dwelling’.

 

In accordance with Resolution (c) above, the former lessee has engaged planning consultants to prepare an Amendment to Local Planning Scheme No. 6 (LPS6), which is being considered in this report.

 

With respect to Resolutions (a) and (b), it is noted that DoL is yet to formalise the lease agreement for the subject land. DoL has advised that the lease is currently in a holding over period, during which the lessee continues to be responsible for the land in accordance with the terms and conditions of the lease, including the requirement to continue the payment of rent. As the current landowner, DoL has further advised in writing that it agrees to the Scheme Amendment being undertaken.

 

COMMENT

 

Site and Surrounds

 

The subject land has an area of 4.15 hectares. It is located on the northern side of Fairway Drive and is bordered to the east by Unallocated Crown Land and Reserve 47964, which has a Management Order in favour of the Department of Parks and Wildlife for the purpose of care and rehabilitation of wildlife, wildlife veterinary clinic, wildlife education and caretaker’s accommodation. It is bordered to the west by Unallocated Crown Land which is leased to one of the other camel operators until 2025.  Future stages of the Broome North residential estate will be located to the south of the subject land on the southern side of Fairway Drive. The location of the subject land is shown in Attachment 1.

 

The subject land is currently improved with a caretaker’s dwelling and various outbuildings and structures associated with the camel operations. These are contained within the southern half of the lot with the northern half largely vacant.

 

Attachment 1 – Location Plan

 

The subject land is zoned ‘Rural Residential’ under LPS6. 

 

Description of the Proposal

 

Attachment 2 is a copy of the Scheme Amendment report. The proposal seeks to include an ‘Additional Use’ designation on the subject land, to be listed in Schedule 2 – Additional Uses of LPS6. The Applicant describes the additional use as:

 

No.

Description of

Land

Additional Use

Conditions

 

A26

Lot 302 Fairway Drive, Billingurr

Zoological Gardens

As determined by

Council

 

‘Zoological Gardens’ is currently an ‘X,’ or prohibited use under LPS6 in the ‘Rural Residential’ zone, which is why a Scheme Amendment is required to enable the use to occur. The definition of ‘Zoological Gardens’ under LPS6 is:

 

Any land or buildings used for the keeping, breeding or display of animals including crocodiles, wildlife park and the term includes zoo but does not include a dog kennel or cattery, animal husbandry-intensive or animal establishment.

 

At present the use of the subject land is considered to be ‘Animal Establishment,’ which is defined as:

 

Premises used for the breeding or boarding, training or caring of animals for commercial purposes but does not include ‘animal husbandry – intensive’ or ‘veterinary centre’.

         

The main point of difference between the two land uses is that whilst an animal establishment does allow housing of animals for commercial purposes, it does not imply that the wider public will be routinely attending the premises. A zoological gardens, however specifically references the ‘display’ of animals implying that public attendance will be encouraged. Generally, there are more potential amenity impacts arising from a zoological gardens land use, including an increase in vehicle traffic and noise.

 

It is noted that at this stage Council is being asked to consider the suitability of the ‘Additional Use’ designation only. Any future development on the subject land will require an Application for Development Approval and the design of the development can be considered at that time.

 

Attachment 2 – Scheme Amendment Report

 

Classification of the Scheme Amendment under the Planning and Development

Regulations

 

The Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations) require the Shire to classify Scheme Amendments as one of three ‘tracks’ – ‘basic’, ‘standard’, or ‘complex’. The assessment process and timeframe varies according to what classification is selected. A ‘basic’ amendment is generally intended to correct an administrative error in the scheme or to amend the scheme in a way that is consistent with another piece of legislation, which is not applicable to this proposal. In determining whether the amendment is ‘standard’ or ‘complex,’ the Regulations require Council to consider the following criteria:

 

·        Whether the amendment is consistent with the Shire’s Local Planning Strategy (LPS);

·        Whether the amendment is consistent with the objectives identified in the local planning scheme for the relevant zone or reserve;

·        Whether the amendment will have a significant impact on other land in the scheme area or significant environmental, social, economic or governance impacts.

 

Each of these criteria is addressed below.

 

Consistency with Local Planning Strategy

 

The subject Land is shown as ‘Rural Living’ in the Shire’s LPS, and is also located in Precinct 13 – Billingurr. Section 3.2.16 of the LPS describes the intention of the ‘Rural Living’ designation as:

 

This designation provides for a spacious ‘lifestyle’ lot permitting one house per lot in a non-urban environment. Lots range in size from 1 hectare to 4 hectares depending upon the location of the particular Rural Living area, and availability of water and other services. Limited rural pursuits may be permitted depending upon water availability and effect on the amenity of the area. Small scale tourist related activities, such as Bed and Breakfast accommodation and Art and Craft Centre may also be considered suitable in these areas.   

 

The proposed amendment will provide ‘small scale tourist related activities’ and as such is consistent with the intent of the ‘Rural Living’ designation. There is currently one house on the subject land which functions as a caretaker’s dwelling, and no additional dwellings are proposed, or are likely to be supported.

 

The objectives of Precinct 13 – Billingurr include: 

 

a)      To provide for a residential / rural living area which allows rural lots for lifestyle purposes and small scale home businesses. Limited rural pursuits and rural industry can also be supported, subject to availability of water. Lot size is to be limited to a minimum of 1 hectare.

 

The use proposed by the Scheme Amendment cannot technically be classified as a ‘small

scale home business’, ‘rural pursuit’, or ‘rural industry’. However, it is clear that the LPS contemplates commercial activity in the Precinct. Furthermore, the guidelines for Precinct 13 in the LPS specifically reference the ongoing presence of the camel establishments:

 

Future structure planning and/or subdivision should reflect the current land use as camel establishments in the southern portion of the precinct. 

 

Given the above, it is considered that the proposed amendment is consistent with the LPS.

 

Consistency with Local Planning Scheme No. 6

 

The subject land is located in the ‘Rural Residential’ zone under LPS6. The objectives of the

‘Rural Residential’ zone include:

 

(a)     Provide an area within a rural environment where more subdivision may be permitted to provide for uses such as small scale rural pursuits and rural industries, horticulture, small scale aquaculture, home businesses, bed and breakfast accommodation and private recreation.

(b)     Retain the visual and rural amenity of the rural landscape in a manner consistent with the rural environment; and

(c)     Ensure the siting and scale of dwellings and structures minimises the visual impact to adjoining properties and the surrounding area.

 

As above, it is considered that the additional use, whilst not specifically referenced, can coexist with the types of uses deemed appropriate in the zone (such as bed and breakfast accommodation and private recreation) and can be developed in such a fashion that retains the rural amenity and minimises visual impact.

 

At present, the development on the subject land is screened from the street by vegetation, with the closest structure set back in excess of 30 metres from Fairway Drive. Whilst the design of future development associated with the proposed ‘additional use’ is yet to be determined, it is anticipated that this vegetation will largely remain, as is required under Schedule 8 of LPS6, which states, in respect to development standards in the ‘Rural Residential’ zone, ‘Existing natural vegetation shall be retained with all setback areas.’ This will assist to minimise the visual impact of any new development, and other mechanism to preserve the rural amenity can be further considered at the Development Application stage.  

 

Given the above, it is considered that the proposed amendment is consistent with LPS6.

 

Impacts of the Proposal

 

Officers consider that the additional use designation on the subject site will have limited impacts on adjoining land. The subject land directly shares boundaries with the other two camel leases which have a similar level of amenity, and adjoins a reserve designated for wildlife rehabilitation and an education centre.  Vehicles will access the site via Fairway Drive which is designated as an arterial road in the Local Development Plans for Broome North, with no traffic or amenity impacts anticipated for the remainder of the Bilingurr Rural Residential Area.

 

Conclusion

 

For the reasons outlined above, it is recommended that the amendment be classified as a ‘standard amendment’ under the Regulations.

 

Suitability of the Additional Use

 

As discussed above, it is considered that the proposed amendment is consistent with the provisions of the LPS and the objectives of the ‘Rural Residential’ zone in LPS6. The use of the subject land and adjacent lots for the keeping of camels is a long-standing situation, and one that must continue in order to ensure that sufficient land is available to house the camels in proximity to Cable Beach. The proposed additional use will allow for value adding to an iconic tourism product and stimulate economic activity.

 

Officers consider that the subject land is in such a location where the additional use could be undertaken without jeopardising the rural amenity experienced by residents in the remainder of the Bilingurr precinct. The proposal is unlikely to lead to traffic, noise, or visual impacts on residents and any potential issues can be considered in more detail when a Development Application is lodged.

 

It is noted that the ultimate development of Broome North will lead to urban land uses in reasonable proximity to the subject land. However, the Broome North District Development Plan identifies land to the south of the subject land as ‘Bush Living,’ which will be developed at a lower density to reduce the potential for adverse impacts.  

 

Finally, it is noted that Council in April 2016 indicated ‘in-principle’ support for the proposed additional use by supporting a future lease term for the subject land and the inclusion of ‘to pen and graze camels and undertake ancillary tourist commercial uses, and caretaker’s dwelling’ as permitted uses under such lease.

 

Site and Development Considerations

 

As stated above, the design of any future development is not being considered at this time, and will be assessed when a Development Application is submitted. However the following matters of note have been identified and addressed in the Scheme Amendment report.

 

Bushfire Planning

 

In December 2015 the Planning and Development (Local Planning Schemes) Amendment

Regulations 2015 and revised State Planning Policy 3.7 – Planning in Bushfire Prone Areas (SPP3.7) were gazetted. This legislation and policy establishes requirements for development in areas shown as ‘Bushfire Prone’ on the State Map of Bushfire Prone Areas (State Map), which has been prepared by the Office of Bushfire Risk Management.

 

The subject land is shown as ‘Bushfire Prone’ on the State Map. In accordance with SPP3.7,

any ‘strategic planning proposal,’ including a Scheme Amendment, must be accompanied by a Bushfire Hazard Level (BHL) assessment. The BHL assessment should be undertaken in accordance with the methodology established in the Guidelines for Planning in Bushfire Prone Areas (Guidelines) and should determine a hazard level of low, moderate, or extreme across the subject land.

 

A BHL Assessment was completed by an accredited Level 1 Bushfire Planning Practitioner, which indicates the hazard level within 100m of the boundaries of the subject land ranges from ‘low’ to ‘moderate.’ SPP3.7 requires that any strategic planning proposal that has a ‘moderate’ BHL must include the following:

 

6.3. (c)       clear demonstration that compliance with the bushfire protection criteria in the Guidelines can be achieved in subsequent planning stages.    

 

This information can be provided in the form of a Bushfire Management Plan or an amended Bushfire Management Plan where one has been previously endorsed.

 

In accordance with this, a Bushfire Management Plan (BMP) has been prepared by an accredited Level 2 Bushfire Planning Practitioner, and is provided as Appendix 3. The BMP recommends a series of actions which will be implemented as conditions of future Development Approval. These include:

 

·    Adhering to the Shire of Broome annual firebreak notice;

·    Installation of a 20 metre Building Protection Zone around any structures, and an additional 80 metre Hazard Separation Zone where possible;

·    Where achieving an 80 metre Hazard Separation Zone is not possible due to the location of site boundaries or Scheme requirements to maintain existing vegetation within setback areas, any new buildings shall be constructed in accordance with Australian Standard 3969, with a Bushfire Attack Level rating no higher than BAL-29. It is noted that a BAL assessment will be required through the Development Application process;

·    Ensuring there is an adequate turn around area for emergency services vehicles on site;   

·    Upgrading the driveway to an all weather standard;

·    Installing an on-site water tank with a capacity of 10,000 L as reticulated water is not currently provided; and

·    Registration of a Section 70A notification of the Certificate of Title to advise future owners/lessees that a BMP applies to the subject land.  

 

It is considered that these actions will comply with the Bushfire Protection Criteria in the Guidelines and hence the BMP is appropriate.

 

CONSULTATION

 

As required under Section 81 of the Planning and Development Act 2005, should Council adopt the proposed standard amendment for advertising purposes, the amendment will be referred to the Environmental Protection Authority (EPA) to determine whether formal environmental assessment is required under the Environmental Protection Act 1986. Should advice be received from the EPA that environmental assessment is not required, public advertising will be undertaken for a period of 42 days as set out in the Regulations. Public advertising will consist of:

 

·  `    Publication of a public notice in a newspaper circulating in the scheme area;

· `     Display of a copy of the notice in the Shire administrative office and on the Shire website;

·        Display of a copy of the Scheme Amendment documentation for public inspection; and

·        Providing the notice to any public authority the Shire considers will be affected by the amendment.

 

Any submissions received during the public advertising period will be presented back to Council for its consideration.

 

STATUTORY ENVIRONMENT

 

Planning and Development Act 2005

 

75.     Amending scheme

 

A local government may amend a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district, by an amendment —

(a)     prepared by the local government, approved by the Minister and published in the Gazette; or

(b)     proposed by all or any of the owners of any land in the scheme area, adopted, with or without modifications, by the local government, approved by the Minister and published in the Gazette.

 

81.     Proposed scheme or amendment to be referred to EPA

 

When a local government resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, the local government is to forthwith refer the proposed local planning scheme or amendment to the EPA by giving to the EPA —

(a)     written notice of that resolution; and

(b)     such written information about the local planning scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the local planning scheme or amendment.

 

Planning and Development Regulations 2015

 

34. Terms used

 

standard amendment means any of the following amendments to a local planning

scheme —

(a)     an amendment relating to a zone or reserve that is consistent with the objectives identified in the scheme for that zone or reserve;

 (b)    an amendment that is consistent with a local planning strategy for the scheme that has been endorsed by the Commission;

(c)     an amendment to the scheme so that it is consistent with a region planning scheme that applies to the scheme area, other than an amendment that is a

basic amendment;

(d)     an amendment to the scheme map that is consistent with a structure plan, activity centre plan or local development plan that has been approved under

the scheme for the land to which the amendment relates if the scheme does not currently include zones of all the types that are outlined in the plan;

(e)     an amendment that would have minimal impact on land in the scheme area

that is not the subject of the amendment;

(f)      an amendment that does not result in any significant environmental, social,

economic or governance impacts on land in the scheme area;

(g)     any other amendment that is not a complex or basic amendment.

 

35. Resolution to prepare or adopt amendment to local planning scheme

 

(1)           A resolution of a local government to prepare or adopt an amendment to a local planning scheme must be in a form approved by the Commission.

 

Note: Section 75 of the Act provides for a local government to amend a local planning scheme or adopt an amendment to a local planning scheme proposed by all or any of the owners of land in the scheme area.

 

(2)     A resolution must —

(a)     specify whether, in the opinion of the local government, the amendment is a complex amendment, a standard amendment or a basic amendment; and

(b)     include an explanation of the reason for the local government forming that opinion.

(3)     An amendment to a local planning scheme must be accompanied by all documents necessary to convey the intent and reasons for the amendment.

 

47.     Advertisement of standard amendment

 

(1)     Subject to sections 81 and 82 of the Act, if a local government resolves under regulation 35(1) to prepare a standard amendment to a local planning scheme or to adopt a standard amendment to a local planning scheme proposed by the owner of  land in the scheme area, the local government must, as soon as is reasonably practicable, prepare a notice in a form approved by the Commission giving details

of –

(a)     the purpose of the amendment; and

(b)     where the amendment may be inspected; and

(c)     to whom and during what period submissions in respect of the amendment may be made.

 

(2)     On completion of the preparation of the notice, the local government must advertise the standard amendment to a local planning scheme as follows —

(a)     publish the notice in a newspaper circulating in the scheme area;

(b)     display a copy of the notice in the offices of the local government for the period for making submissions set out in the notice;

(c)     give a copy of the notice to each public authority that the local government

considers is likely to be affected by the amendment;

(d)     publish a copy of the notice and the amendment on the website of the local

government;

(e)     advertise the scheme as directed by the Commission and in any other way the

local government considers appropriate.

 

(3)     The local government must ensure that the standard amendment to the local planning scheme is made available for inspection by the public during office hours at the office of the local government.

 

(4)     The period for submissions set out in a notice must be not less than a period of 42 days commencing on the day on which the notice is published in a newspaper circulating in the scheme area.

 

48.      Land owner may be required to pay costs of publication

 

The local government may require a person to pay the cost of publication of a notice under regulation 47(2) if –

(a)     the notice relates to an amendment to a local planning scheme in respect of land owned by the person; and

(b)     the person proposed the amendment to the local planning scheme.

 

POLICY IMPLICATIONS

 

Nil

 

FINANCIAL IMPLICATIONS

 

All costs for undertaking the Scheme Amendment, including advertising costs and staff time, are met by the applicant.

 

RISK

 

The amendment proposal will allow for an additional use on the subject land which is considered to present minimal risk to Council. The land use has already received ‘in-principle’ support from Council in April 2016 and the impacts of the use on adjoining landowners are considered to be minimal. 

 

STRATEGIC IMPLICATIONS  

 

Our Place Goal – Help to protect the nature and built environment and cultural heritage of Broome whilst recognising the unique sense of the place:

 

Realistic and sustainable land use strategies for the Shire within state and national frameworks and in consultation with the community

 

Retention and expansion of Broome’s iconic tourism assets and reputation

 

 

VOTING REQUIREMENTS

Simple Majority

 

Council Resolution:

(Report Recommendation)

Moved: Cr C Mitchell                                              Seconded: Cr H Tracey

That Council:

1.       Pursuant to Section 75 of the Planning and Development Act 2005, amends the Shire of Broome Local Planning Scheme No. 6 for the purposes of public advertising by:

(a)    Inserting an Additional Use in Schedule 2 as follows:

No.

Description of

Land

Additional Use

Conditions

 

A26

Lot 302 Fairway Drive, Billingurr

Zoological Gardens

As determined by

           Council

(b)    Amending the Scheme maps accordingly

2.       Determines that the amendment is a standard amendment under the provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 for the following reasons:

(a)    It is consistent with the Shire’s Local Planning Strategy;

(b)    It is consistent with the objectives of the ‘Rural Residential’ zone under Local Planning Scheme No. 6;  

(c)    It will have minimal impact on land in the scheme area that is not the subject of the amendment; and

(d)    It will not result in any significant environmental, social, economic or governance impacts on the land in the scheme area.

3.       Requests the Chief Executive Officer to forward this resolution and the amendment documentation to the Environmental Protection Authority pursuant to Section 81 of the Planning and Development Act 2005; and

4.       Subject to the advice of the Environmental Protection Authority under Section 48A of the Environmental Protection Act 1986 that the amendment is not subject to formal environmental assessment, requests the Chief Executive Officer to advertise the amendment for 42 days as per the Planning and Development (Local Planning Schemes) Regulations 2015.

CARRIED UNANIMOUSLY 7/0

 

Attachments

1.

Attachment 1 - Location Plan

2.

Attachment 2 - Scheme Amendment Report

3.

Attachment 3 - Bushfire Management Plan

  


Item 9.2.1 - PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR

 

 

Subject Land


Item 9.2.1 - PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR

 

 

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Item 9.2.1 - PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR

 

 

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Item 9.2.1 - PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR

 

 

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Item 9.2.1 - PROPOSED AMENDMENT NO. 6 TO LOCAL PLANNING SCHEME NO. 6 - INCLUSION OF AN ADDITIONAL USE ON LOT 302 FAIRWAY DRIVE, BILLINGURR

 

 

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Minutes – Ordinary Meeting of Council 15 December 2016                                                         Page 203 of 204

 

9.2.2      REVIEW OF PARKING LOCAL PLANNING POLICIES FOLLOWING PUBLIC COMMENT PERIOD

LOCATION/ADDRESS:                            Nil

APPLICANT:                                              Shire of Broome

FILE:                                                           PLA32

AUTHOR:                                                   Statutory Planning Coordinator

CONTRIBUTOR/S:                                    Nil

RESPONSIBLE OFFICER:                          Director Development Services

DISCLOSURE OF INTEREST:                     Nil

DATE OF REPORT:                                    21 November 2017

 

SUMMARY:         This report presents the outcome of a review of the Shire of Broome’s Local Planning Policies relating to car parking, which has been advertised for public comment.

This report recommends that Council adopts amendments to Local Planning Policy 8.9 – Parking and Local Planning Policy LPP 8.10 – Parking, Landscaping, Storage, Crossover and Drainage Standards for Planning Applications.  The report also recommends that Council revoke Local Planning Policy 8.16 – Provisions of Parking.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 8 April 2003                               Item 4.10

OMC 21 August 2001                        Item 9.2.2

OMC 1 December 2005                   Item 9.3.8

OMC 23 November 2006                 Item 9.3.3

OMC 30 September 2010                Item 9.3.4

OMC 29 September 2016                Item 9.1.3

 

COMMENT

 

The Development Services Directorate is undertaking a review of all of its policies, local laws and local planning policies.

 

At a March 2016 workshop with Council, officers provided an overview of all Local Planning Polices (LPP) which showed that provisions which apply to parking are contained in three separate LPPs. To streamline these policy provisions and assist applicants in understanding the parking requirements that apply to them, it was recommended that all parking provisions are combined into one LPP.  This matter was further workshopped with Council in July 2016.

 

Updated Parking Policy

 

Based on discussion and feedback at the March 2016 Council workshop, officers prepared an updated Local Planning Policy 8.9 – Parking (Parking Policy) (as shown in Attachment No 1). The Parking Policy is a combination of the existing provisions relating to car parking contained in the following LPPs:

·    LPP 8.9 – Cash In Lieu Car Parking Chinatown;

·    LPP 8.10 – Parking, Landscaping, Storage, Crossover and Drainage Standards for Planning Applications; and

·    LPP 8.16 – Provision of Parking.

As a part of the overall policy review, it was identified that additional provisions should be included in the Parking Policy, these were included in the advertised version of the Policy and a justification for the proposed inclusions is provided below. 

Parking for Grouped and Multiple Dwellings in Chinatown (Clause 1.1)

Clause 4.3.3 of Local Planning Scheme No 6 (LPS6) requires that notwithstanding anything in the Residential Design Codes (R-Codes), each grouped and multiple dwelling must have a minimum of two parking bays (the R-Codes require 1 parking bay for single bedroom grouped dwellings and a minimum of 1.25 parking bays for multiple dwellings that are less than 110sqm). This clause was included into LPS6 as a regional variation to reflect the high rate of vehicle and boat ownership in Broome, the common trend of renting out rooms within dwellings and the lack of alternative transport options in Broome.

While requiring a minimum of two parking bays per dwelling is appropriate in the residential areas throughout Broome, it is considered that clause 4.3.3 should not apply to the development of dwellings within Chinatown (which is zoned Town Centre where grouped and multiple dwellings are permitted land uses). Given that residential development within Chinatown is co-located with and within proximity to shops and workplaces and is a high convenience location, the rate of parking contained within the R-Codes is deemed adequate. This is also recommended so that residential development is not discouraged in Chinatown and an increase in permanent residents within Chinatown would support after-hours activation of the precinct.

Guidance on information to be supplied should an applicant seek to provide less parking bays than that required under Schedule 9 of LPS6 (clause 1.4)

The rate of parking required to be provided for a development is established in Schedule 9 of LPS6. Essentially, the rate of parking bays to be provided within a development is based on the land use activity proposed. In some circumstances developers will seek to have the rate of car parking under LPS6 varied. While discretion is provided under the Scheme for the Shire to consider varying the parking ratios, the information required to support such a request is not specified.

It is therefore recommended that clause 1.4 is included within the Parking Policy to give guidance and direction to applicants should they seek to vary the parking ratios. This would include empirical evidence, supported by a traffic engineer, that the ratios in LPS6 are not appropriate for the type of development proposed or demonstrating that the reduction in the parking rate may be considered if there is internal trip capture.

Provisions in relation to off-site parking for ‘Home Business’ and ‘Family Day Care’ land uses in the Residential zone (clause 3.2)

The existing provisions within the LPPs do not allow any off-site parking in the Residential zone. While it is considered that the parking bays required for dwellings must be constructed on site, the Shire has seen an influx of Home Business and Family Day Care applications in the Residential zone. The majority of the applications can accommodate the additional required parking bays on site, however there are some circumstances where there is no area in front of the dwelling for parking to occur.  In such circumstances applicants have sought to have the parking bay(s) accommodated within the existing cross-over immediately adjacent to the property.

Given that these land use activities have low vehicle movements and parking generally is not required for extended time periods, it is recommended that the Parking Policy allow for officers consider approving off-site parking. This would only be approved where the parking cannot be accommodated on site and the identified location for the parking does not obstruct pedestrian movement. This will reduce the need for such applications to automatically be referred to Council for determination.

Guidance on matters that should be addressed if an applicant requests that a cash-in-lieu payment is provided for parking and how the cash-in-lieu value will be determined (clause 4.4 to 4.6)

The provisions of LPS6 give the ability for the Shire to accept cash-in-lieu payments for car parking. The current LPP establishes that the expectation is that parking will be provided on the development site and that cash-in-lieu is considered an exception. The Parking Policy maintains this view.  However it provides guidance on matters that an applicant would need to address should they seek that a cash-in-lieu payment is made instead of providing parking onsite. This includes the applicant supplying a car parking design demonstrating that there is an acceptable location to accommodate the car parking to support the development within reasonable proximity to the site (if the Shire does not have an adopted parking plan).

The provisions also provide direction on how the cash-in-lieu value is to be determined and circumstances where Council will give consideration to waiving the land value component of the cash-in-lieu payment.

 

Summary

 

The proposed changes to the parking policy were advertised for public comment. Following the close of the public comment period, no submissions were received.

 

The Shire officers have undertaken a further review of the proposed Policy and have proposed some minor modifications that are proposed to improve the wording of the Policy provisions. These modifications are shown in Attachment No 1 with any deletions shown as struck through and additional text is shown red.

 

As the parking provisions are proposed to be removed from LPP 8.10 – Parking, Landscaping, Storage, Crossover and Drainage Standards for Planning Applications it is recommended that Council adopt amendments to this LPP to remove the parking provisions. It is also proposed that the title of this LPP be amended to read ‘Development Standards for Development Applications’. Further, as the provisions of LPP 8.16 – Provisions of Parking, have been incorporated into LPP 8.9, it is recommended that LPP 8.16 is revoked.

 

CONSULTATION

 

Consultation commenced on the 27 October 2016 through an advertisement in the Broome Advertiser, a notice on the Shire’s website and at the Administration Centre. The public comment period went for 21 days and concluded on the 17 November 2016. At the close of the public comment period no submissions were received.

 

STATUTORY ENVIRONMENT

 

Planning and Development Act 2005

 

Planning and Development (Local Planning Schemes) Regulations 2015

 

Schedule 2 – Deemed provisions for local planning Schemes

3.       Local planning policies

(1)     The local government may prepare a local planning policy in respect of any matter related to the planning and development of the Scheme area.

(2)     A local planning policy —

(a)     may apply generally or in respect of a particular class or classes of matters specified in the policy; and

(b)     may apply to the whole of the Scheme area or to part or parts of the Scheme area specified in the policy.

(3)     A local planning policy must be based on sound town planning principles and may address either strategic or operational considerations in relation to the matters to which the policy applies.

(4)     The local government may amend or repeal a local planning policy.

(5)     In making a determination under this Scheme the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with this Scheme.

 

4.       Procedure for making local planning policy

 

(1)     If the local government resolves to prepare a local planning policy the local government must, unless the Commission otherwise agrees, advertise the proposed policy as follows —

(a)     publish a notice of the proposed policy in a newspaper circulating in the Scheme area, giving details of —

(i)      the subject and nature of the proposed policy; and

(ii)      the objectives of the proposed policy; and

(iii)     where the proposed policy may be inspected; and

(iv)    to whom, in what form and during what period submissions in relation to the proposed policy may be made;

(b)     if, in the opinion of the local government, the policy is inconsistent with any State planning policy, give notice of the proposed policy to the Commission;

(c)     give notice of the proposed policy in any other way and carry out any other consultation the local government considers appropriate.

 

(2)     The period for making submissions in relation to a local planning policy must not be less than a period of 21 days commencing on the day on which the notice of the policy is published under subclause (1)(a).

 

(3)     After the expiry of the period within which submissions may be made, the local government must —

(a)       review the proposed policy in the light of any submissions made; and

(b)       resolve to —

(i)         proceed with the policy without modification; or

(ii)        proceed with the policy with modification; or

(iii)       not to proceed with the policy.

 

(4)     If the local government resolves to proceed with the policy, the local government must publish notice of the policy in a newspaper circulating in the Scheme area.

 

(5)     A policy has effect on publication of a notice under subclause (4).

 

(6)     The local government —

(a)     must ensure that an up-to-date copy of each local planning policy made under this Scheme is kept and made available for public inspection during business hours at the offices of the local government; and

(b)     may publish a copy of each of those local planning policies on the website of the local government.

 

5.       Procedure for amending local planning policy

 

(1)     Clause 4, with any necessary changes, applies to the amendment to a local planning policy.

 

(2)     Despite subclause (1), the local government may make an amendment to a local planning policy without advertising the amendment if, in the opinion of the local government, the amendment is a minor amendment.

 

6.       Revocation of local planning policy

 

          A local planning policy may be revoked —

 

(a)     by a subsequent local planning policy that —

(i)         is prepared in accordance with this Part; and

(ii)        expressly revokes the local planning policy;

          Or

(b)     by a notice of revocation —

(i)         prepared by the local government; and

(ii)        published in a newspaper circulating in the Scheme area.

 

POLICY IMPLICATIONS

 

Nil.

 

FINANCIAL IMPLICATIONS

 

The public consultation costs for the notice in the newspaper were met through the Development Services consultation budget.

 

RISK

 

Nil.

 

STRATEGIC IMPLICATIONS  

 

Our Place Goal – Help to protect the nature and built environment and cultural heritage of Broome whilst recognising the unique sense of the place:

 

Realistic and sustainable land use strategies for the Shire within state and national frameworks and in consultation with the community

 

A built environment that reflects arid tropical climate design principles and historical built form

 

A unique natural environment for the benefit and enjoyment of current and future generations

 

Our Prosperity Goal – Create the means to enable local jobs creation and lifestyle affordability for the current and future population:

 

Affordable and equitable services and infrastructure

 

Affordable land for residential, industrial, commercial and community use

 

Our Organisation Goal – Continually enhance the Shire’s organisational capacity to service the needs of a growing community:

 

An organisational culture that strives for service excellence

 

Effective community engagement

 

Improved systems, processes and compliance

 

VOTING REQUIREMENTS

Simple Majority

 

Council Resolution:

(Report Recommendation)

Moved: Cr H Tracey                                                 Seconded: Cr C Mitchell

That Council:

1.       Pursuant to Clause 3(4) of Schedule 2 (Deemed provisions for Local Planning Schemes) in the Planning and Development (Local Planning Schemes) Regulations 2015, amend the title of LPP 8.10 from “Parking, Landscaping, Storage, Crossover and Drainage Standards for Planning Applications” to “Development Standards for Development Applications”.

2.       Pursuant to Clause 3(4) of Schedule 2 (Deemed provisions for Local Planning Schemes) in the Planning and Development (Local Planning Schemes) Regulations 2015, amend Local Planning Policy 8.9 – Parking as set out in Attachment No 1 and LPP 8.10 – Development Standards for Development Applications as set out in Attachment No 2.

3.       Pursuant to Clause 6 of Schedule 2 (Deemed provisions for Local Planning Schemes) in the Planning and Development (Local Planning Schemes) Regulations 2015 revoke Local Planning Policy 8.16 – Provision of Parking.

4.       Requests that the Chief Executive Officer publish notice in a newspaper circulating in the Local Planning Scheme area advising of:

i.    The adoption of amendments to Local Planning Policy 8.9 – Parking and Local Planning Policy 8.10 – Development Standards for Development Applications; and

ii.   The revocation of Local Planning Policy 8.16 – Provisions of Parking. 

CARRIED UNANIMOUSLY 7/0

Attachments

1.

Draft Local Planning Policy 8.9 - Parking

2.

Draft Local Planning Policy 8.10 - Development Standards for Development Applications

  


Item 9.2.2 - REVIEW OF PARKING LOCAL PLANNING POLICIES FOLLOWING PUBLIC COMMENT PERIOD

 

 

LOCAL PLANNING POLICY                                                   8.9

TITLE:

Parking

ADOPTED:

OMC……………………….. – Pages

REVIEWED:

 

OMC……………………….. – Pages

 

ASSOCIATED LEGISLATION:

Planning and Development Act 2005

Local Planning Scheme No 6

ASSOCIATED DOCUMENTS:

Car Parking & Cash-in-Lieu in Chinatown Discussion Paper dated 18 August 2005

REVIEW RESPONSIBILITY:

Director Development Services

DELEGATION:

Delegations are exercised in accordance with delegation granted in terms of Section 5.42 of the Local Government Act 1995 as amended or other statutes as applicable to specified officers.

Previous Policy Number LPP 8.9, LPP 8.10 & LPP 8.16

Background:

 

Clause 4.7 of Local Planning Scheme No 6 (LPS6) requires that all development applications must make appropriate provision for car parking. Schedule 9 of LPS6 details the number of bays required for each land use class. This policy is to be read in conjunction with the provisions of LPS6.

 

Objective:

 

1.         Establish the minimum standards for car parking construction to achieve an appropriate level of amenity;

2.         Ensure parking is provided which is safe, convenient and practical for the operation of the site and the community in general; and

3.         Establish criteria for where consideration maybe given to allowing parking to be provided off-site, within an adjacent road reserve or as cash-in-lieu.

 

Definitions:

Chinatown is the area shown in Figure 1.

 

Internal trip capture is where a land use included in the a development application will generate a reduced or no independent parking demand due to its reciprocal parking relationship with another use. Relevant considerations include:

i.   Clear establishment of a relationship between different land uses on the same site, such as function rooms provided within a tourist development for use by hotel patrons.

ii.  How a claimed reduction relates to the scale of activity (for example, a smaller restaurant co-located within a tourist development has less capacity to accommodate public diners than a larger restaurant).

iii.  Whether land uses within a development are open to the public (for example, a fitness centre provided in a tourist development for the exclusive use of hotel patrons)

 

Policy:

 

1.0       Parking Ratios

 

1.1       Clause 4.3.3 of LPS6 does not apply in the determination of the required ratio for car parking to determine the ratio for car parking for Grouped and Multiple Dwellings in Chinatown, parking for these land uses will be calculated in accordance with the provisions of the Residential Design Codes.

 

1.2       The required number of parking bays and dimensions for all development is set out in Schedule 9 of LPS6. 

 

1.3       For properties zoned Town Centre but not within Chinatown the required number of parking bays is to be calculated based on the most relevant land uses within Schedule 9. The ratio of car parking for land uses in Chinatown is to be calculated at the rate established for the ‘Town Centre-Chinatown’ zone under Schedule 9 of LPS6.

 

1.4       If an application for development approval does not comply with the parking ratios in Schedule 9 of LPS6 and:

 

·    the applicant does not seek to meet the parking demand by any other means provided under this Policy; or

·    it cannot be considered as reciprocal parking under clause 1.5 below;

 

the applicant must demonstrate that the ratio contained in Schedule 9 exceeds the demand for car parking generated by the development. In this regard the applicant must supply the following information:

 

a)         Empirical evidence, supported by advice from a qualified traffic engineer, that the ratios in Schedule 9 are not appropriate for the type or scale of development proposed. The empirical evidence could be in the form of a traffic survey undertaken of a similar existing development during peak tourist season; and/or

 

b)         Reductions to the parking rate may be considered if it is shown that there will be internal trip capture.

 

1.5       Any application proposing a variation to the parking ratios in Schedule 9 must be determined by Council. 

 

Reciprocal Parking

 

1.6       Further to Clause 4.7.2.1 of LPS6, an applicant may seek that the total number of parking bays required to be provided under Schedule 9 is reduced where the bays would be used on a reciprocal basis between different land uses on the same site. If proposed, the application must demonstrate the following:

 

a)        The different land uses operate at different times;

b)        The operating times of the different land uses will be permanent and will form a condition under which development approval is granted; and 

c)        The amount of parking to be provided is calculated based on the greatest number of vehicles that would need to be accommodated on the land during peak usage.

 

2.0       Parking Construction Standards

 

Standards for different zones

 

2.1       The table below establishes the car parking standards for each land use zone in the Shire of Broome:

 

Row

Zone

Construction Standard

1.

Residential, Town Centre, Local Centre, Mixed Use, Service Commercial, Light and Service Industry, Tourist

All parking bays, vehicle access and manoeuvring areas are to be of permanent construction, sealed, kerbed and line marked as follows:

a)        the sealed pavement can be asphalt, two-coat bitumen seal or concrete to the Shire’s specifications;

b)        line marked and sign posted as per an approved car parking plan; and

c)        kerbed unless extensive on-site infiltration to landscaping and storage areas is used as a part of the sites design.

2.

Culture and Natural Resource Use, General Agriculture, Industry, Low Impact Tourist Development, Rural Residential, Rural Small Holdings and Settlement

As per the above requirements in row 1 above, unless the development is not accessed from a sealed road and/or the parking is for use of employee’s only, in which case the parking bays, vehicle access and manoeuvring areas can be an unsealed surface such as compacted road base or similar which is dust free.  All parking areas and vehicle access must be clearly distinguishable and sign posted.

3.

Industry and Port Reserve

As per requirements in row 1 above, except that manoeuvring areas for articulated vehicles can be of an unsealed surface such as compacted road base or similar, which is dust free.

 

Landscaping

 

2.2       All parking areas must be landscaped. As a minimum landscaping of parking areas is to include shade trees at the rate of 1 tree every 4 consecutive bays or 12 metres, which ever is the lesser.  

 

Parking Location

 

2.3       The location of parking areas is not to detract from the visual amenity of the proposed development, adjoining lots or streetscape of the locality. Parking areas must facilitate safe, easy and convenient vehicular (including motorcycle) bicycle and pedestrian movements.

 

3.0       Off-site Parking

 

General considerations

 

3.1       The expectation is that parking is provided on-site, any proposal to construct parking ‘off-site’ is considered to be an exception to the parking requirements for a development. 

 

3.2       Off-site parking may be considered in all zones except parking required for a single house, grouped dwelling, multiple dwelling or residential building in the ‘Residential’ zone. Off-site parking for ‘Family Day Care’ or ‘Home Business’ land use activities in the ‘Residential’ zone may be considered in the following circumstances:

 

a)      The parking for the land use cannot be accommodated on-site;

b)      The location of off-site parking is to be in the immediate road verge directly adjoining the subject property and will not in any way obstruct pedestrian movements on an existing or proposed footpath; and

c)      The proposed parking must meet minimum parking bay size, be hard-sealed standard and shall not be detrimental to the visual amenity of the streetscape or impact upon traffic safety. 

 

          Any areas approved for off-site parking in association with a ‘Home Business’   or ‘Family Day Care’ must be maintained by the owner.

 

3.3       Within the ‘Town Centre’, ‘Local Centre’, ‘Mixed Use’, ‘Service Commercial’, ‘Industry’, ‘Light and Service Industry’ and ‘Tourist’ zones, a minimum of 50% of the required car parking bays are to be provided on-site.

 

3.4       Any parking bays which are required as a condition of development approval and cannot be provided on-site may, at Council’s discretion, be developed in a portion of the abutting road verge or a nearby property. If approved, it is the applicant’s responsibility to design and construct the parking bays in accordance with the Shire’s ‘Guidelines for Construction or Reinstatement’.

 

Location criteria

 

3.5       In order for Council to consider exercising its discretion to allow off-site parking, the application will be required to prove that:

 

a)         The location of the off-site parking is conveniently located to the subject development;

b)         A safe and well lit pedestrian access can be provided between the off-site parking and the development;

c)         The customers and patrons of the proposed development can be reasonably expected to use the off-site parking area; and

d)         Any other relevant matters and items set out under clause 2.3 have been addressed.

 

Parking within the Road Verge

 

3.6       Unless in accordance with an adopted car parking plan, any proposal for parking in the road verge will only be supported where the parking is provided in the verge adjoining the lot and within the frontage area of the lot. 

 

3.7       Any off-site parking constructed in the road verge will, when constructed, be designated public parking.   

 

3.8       All parking bays, vehicle access and manoeuvring areas within the road verge are to be of permanent construction, sealed, kerbed and line marked, as follows:

 

a)        The sealed pavement can be asphalt, two-coat bitumen seal or concrete;

b)        The design must comply with the Shire’s Guidelines for the Construction or Reinstatement of Car Parks within the Shire of Broome Road Reserve;

c)        The parking must be lined marked and sign posted as per the approved car parking plan.

 

Maintenance and Deed of Agreement

 

3.9       Any off-site parking, vehicle access, manoeuvring areas and landscaping is the responsibility of the developer to maintain indefinitely.

 

3.10     If road verge parking is approved as a part of a development application, a Deed of Agreement is to be prepared by the Shire’s solicitors at the applicant’s cost, which includes the lodgement of a caveat on title. The Deed is to specify that the owner agrees to maintain and take out insurance over the parking and landscaping area within the road verge.

 

Parking on Nearby Properties

 

3.11     Where parking is provided on a nearby property, an appropriate legal instrument must be put in place ensuring that the parking on the property will be maintained and kept available for the approved development. 

 

4.0     Cash-in-lieu of Car Parking

 

Note: These provisions are based on a parking plan and a review of the car parking availability, including future development as set out in the Car Parking & Cash-in-Lieu in Chinatown discussion paper dated 18 August 2005.

 

All development except within Chinatown

 

4.1       The following clauses 4.2 to 4.6 apply to all development with the exception of development within Chinatown.

 

4.2       The expectation is that parking will be provided on the development site. Any proposal to construct parking through a cash-in-lieu payment is considered to be an exception to the parking requirements for a development. 

 

4.3       The Shire will only give consideration to the use of cash-in-lieu of car parking where the Shire has identified a site for the construction of a public car park through an adopted Shire parking plan and/or the Shire can provide alternative parking in close proximity to the site. 

 

4.4       If an applicant is seeking that part of the car parking required is provided by way of cash-in-lieu payment, in the absence of an adopted Shire parking plan the applicant must provide a car parking design for an acceptable location which meets with the locational criteria set out in Clause 3.5.

 

4.5       The cash-in-lieu value is to be determined in accordance with Clause 5.7.6.1(a) of LPS6 as follows:

 

a)           The estimated cost of constructing the parking space/s will be reviewed annually by the Shire and will be set in the Schedule of Fees and Charges. 

b)           The estimated value of land which the parking space would occupy will be determined by a licensed valuer engaged by the Shire at the applicant’s cost. For the purposes of calculating the land costs, each bay will occupy an area of 31sqm, which includes the parking space and manoeuvring area.

 

4.6       Where the location identified in the adopted Shire parking plan or the car parking design provided under Clause 4.4 is on reserve land (under the care and control of the Shire) or in a road reserve, Council may give consideration to the waiving of the land value component of the car parking bays. Consideration will only be given to the waiving the land value component when:

 

a)           The location of the parking area does not compromise the current and future public use of the area identified for the car parking improvements;

b)           The car parking will also support the general public’s use of the area and is not solely being developed to support the parking need generated by the development; and 

c)           The construction of the car parking area will not compromise the streetscape or pedestrian access to the area.

 

Chinatown

 

4.7       The following clauses 4.8 to 4.14 apply to development within Chinatown.

 

4.8       Where a site is developed for residential purposes or for tourist accommodation, whether or not the site is used for other purposes, the parking for the residential and/or tourist accommodation uses shall be provided on-site.  Cash-in-lieu of car parking will not be available for these land uses.

 

4.9       Properties that were vacant on 18 August 2005 will be entitled to provide a cash-in-lieu payment instead of the provision of on-site car parking for part or all of the car parking for the development of the property. The maximum amount of parking bays that can be provided as cash-in-lieu is determined by dividing the site area in square metres by 43.

 

4.10     Properties that were developed (not vacant) on 18 August 2005 are entitled to provide cash in lieu of the provision of on-site car parking for any subsequent development of the property provided at least 50 percent of the required parking is provided on site.

 

4.11     Properties that were developed (not vacant) on 18 August 2005 are entitled to credit for any car parking bays previously paid for as cash in lieu.

 

4.12     Properties that were developed (not vacant) on 18 August 2005 are entitled to:

 

a)           claim the existing provision of car parking (on-site and cash in lieu) is adequate for the existing development and only provide car parking for the net increase in gross leasable floor area; or

b)           recalculate parking requirements to current standards, taking into account any previous cash payments in lieu of car parking provided.

 

4.13     If development cannot provide sufficient parking bays by:

 

·     providing on-site parking;

·     previous cash payments in lieu of parking; or

·     new cash payments in lieu of parking under this Policy,

 

then the additional parking must be provided as on-site bays on another property in Chinatown or through the purchase and transfer of cash-in-lieu credits in excess of requirements for another property in Chinatown.  Appropriate legal instruments to facilitate this arrangement will be required, linking the property to the parking provided.

 

4.14     The cash in lieu value for each car parking bay is set by Council each year in the Schedule of Fees and Charges. For Chinatown, this amount only incorporates the estimated construction costs of the parking bays.

 

SHIRE OF BROOME LOCAL PLANNING SCHEME No. 6 (LPS6) – LOCAL PLANNING POLICIES

This Policy is a Local Planning Policy adopted under the provisions of Clause 2.4 of LPS6. LPS6 is administered by the Shire of Broome as the responsible authority under the Scheme. LPS6 was gazetted and came into operation on the 30 January 2015.

Planning policies adopted under LPS6 may be amended or rescinded after the procedures set out in Clause 2.4 and 2.5 have been completed.

 

 

 

 

 

 


 

FIGURE 1 – CHINATOWN

 

 

 

 

 

 

 

 


Item 9.2.2 - REVIEW OF PARKING LOCAL PLANNING POLICIES FOLLOWING PUBLIC COMMENT PERIOD

 

 

 

LOCAL PLANNING POLICY                                8.10

TITLE:

DEVELOPMENT STANDARDS FOR DEVELOPMENT APPLICATIONS

ADOPTED:

0CM 18 June 1996 — Pages 46 - 49

REVIEWED:

OCM 20JuIy 1999 — Page 11
OCM 21 November 2000 — Page 87
OCM 24 September 2002 — Pages 38 - 40
OCM 14 October 2003 — Pages 35 - 38
OCM 15 February 2007— Pages 116 – 119

OCM 2 September 2010 – Pages 44 - 46

OMC 30 July 2015 – Pages 28 – 40

OMC 17 December 2015 – Pages 110 - 121

ASSOCIATED LEGISLATION:

Planning and Development Act 2005

Shire of Broome Local Planning Scheme No 6 (LPS6)

 

ASSOCIATED DOCUMENTS:

 

REVIEW RESPONSIBILITY:

Director Development Services

DELEGATION:

Delegations are exercised in accordance with delegation granted in terms of Section 5.42 of the Local Government Act 1995 as amended or other statutes as applicable to specified officers.

APPLICATION

This policy applies to the LPS6 area

Previous Policy Number 3.1.4

Objectives:

Establish minimum standard for development to maintain and enhance the amenity and natural environment.

Definitions:

Nil

Policy:

 

1.1       That all development applications be subject to a minimum set of basic standards for, landscaping, drainage and crossovers. 

 

1.2       The standards applicable shall be based on the following:

 

 



Area

Application

 

 

 

 

 

Landscaping

All zones

 

i)    Landscaping plans are required to be submitted for the following types of planning applications:

-     Any grouped dwelling, multiple dwelling and/or residential building applications;

-     Any development proposing the construction of building/s on a vacant site (with the exception of single dwelling and ancillary structures); or

-     Any addition, modification and renovation to existing commercial or industrial developments valued at over $100,000.

 

ii) Where a landscaping plan is required, plants identified as pest plans by the Shire and listed in Schedule 1 of this Policy, are not permitted to be retained or established.

 

iii) Where landscaping is proposed within the road verge, a deed of agreement prepared by the Shire’s solicitors at the applicants cost, which include lodgment of a caveat on title, is to be prepared and executed prior to the development being occupied. The deed is to include that the owner agrees to maintain the landscaping within the road verge. 

 

iv) All landscaping plans submitted to the Shire of Broome must be drawn to scale and detail the following:

a) The location and type of existing trees and plantings, including genus species name and whether they are to be retained. 

b) The location and type of new trees and shrubs that are proposed to be installed as part of the landscaping including genus species name.

c) Any lawns, paths, hardscaping or other features to be established including construction materials to be used (i.e. brick paving, concrete).

d) Any natural landscape areas to be retained.

e) Those areas to be reticulated or irrigated including details on the type of reticulation.

            To allow establishment of landscaping around existing trees and tree trunks adequate space depended upon the species should be maintained and kept clear of all impervious materials. Where a tree is positioned within 3m of less from a hardscape area, root control barriers should be installed.

v)   Any landscaping proposed within the verge must comply with Engineering Policy 3.1.16 – Verge Maintenance.

 

vi)  Landscaping treatments should aim to minimise water use through soil improvement and mulching to retain moisture, use of indigenous, native landscaping; installation of smart irrigation systems including monitors, controllers and subsurface irrigation.

 

 

Crossovers

All Zones

 

vii) When any crossover is provided it shall be concrete, sealed or brick paving in accordance with Shire specifications including:

·    Rural Road Priority Access/Crossover Standard;

·    Specification for Residential Crossover Locations;

·    Specification for Residential Concrete Crossover;

·    Specification for Commercial Concrete Crossover.

 

Drainage

All Zones

 

All sites shall comply with the basic requirement that any post-development discharges from the property should be equal to or less than the pre-development site for a design storm event, unless comprehensive hydrological catchment modeling at the developer’s cost by a suitably qualified engineer proves otherwise.

 

 

viii)         Where development has been proposed in an area where the lots grade to the road as the legal point of discharge and the downstream system is designed with adequate capacity the following must be achieved:

·    Flow across paved areas to road/drain or legal point of discharge;

·    All plans submitted for approval to show existing and proposed levels, and flow paths.

 

ix) In areas where lots are not adequately graded to the legal point of discharge (such as some areas in Old Broome) or the discharge system has limited capacity (Port Road Industrial area) the following must be met:

a)  The stormwater drainage system must be designed by a suitably qualified engineer and must demonstrate that there will be no impact to upstream or downstream properties within the catchment.  

b)  All post development flows for a 1:50 year event must be compensated on site with only pre–development flows allowed to flow to the street/discharge point. Both pre and post development flow rates shall be calculated using the appropriate times of concentration to determine peak storm durations.

c)  Compensation shall be achieved by using swaled garden areas, depressed carparks or detention areas with low flow outlets, restricted orifices or weirs incorporated into the design.  Soak wells cannot be used due to the nature of Broome soils.

d)  In the event that the outlet from the stormwater system becomes blocked then the storage volumes created on site must be large enough to contain the total flow from a post development 1:1 year storm.

e)  Provision shall be made for all storms in excess of 1:50 up to a 1:100 event to overflow the storage system and flow directly to the street drainage with floor levels of all buildings designed to prevent any flooding.

x)          During construction, measures should be implemented to ensure no discharge of dust or sediment from the site.  To achieve this property verges should be protected with a 3 to 5m mulch bund to minimise the transport of sediment and prevent scouring.

Finished Floor Levels

All Residential Development (in all zones as applicable)

 

xi)         Finished floor level of all residential buildings shall be a
minimum of 400 mm above natural ground level [or approved finished ground level for those lots where subdivision works have altered the natural ground level]. 

 

xii)        Where it can be demonstrated that flooding to the building will not occur due to the slope of the lot and a local drainage system has been provided for, the floor height can be reduced to a minimum of 200 mm. 

 

xiii)       In all cases, the minimum height is to be measured at the highest point of ground level, immediately adjacent to the building floor edge. 

 

xiv)       Verandahs and Carports can be lower than the main building floor level, but must be still drained away from the building perimeter to an approved discharge point.

 
Industrial/Commercial Development -

xv)       Finished Floor Levels shall be a minimum of 200mm above surrounding finished levels

 

SCHEDULE ONE – PEST PLANTS

Common Name

 

Scientific Name

Coffee Bush

 

Leucaena leucocephala

Siratro

 

Macroptillium atropurpureum

Khaki Weed

 

Alternanthera pungens

Neem

 

Azadirachta indica

Hairy woodrose or Hairy morning glory

 

Merremia aegyptia and Merremia dissecta

Gallon’s Curse

 

Cenchrus biforus

Bellyache Bush

 

Jatropha gossypitfolia

Wild Passionfruit

 

Passiflora foetida

Caltrop

 

Tribulus terrestris

Mint Bush

 

Hyptis suaveolens

Buffel Grass

 

Cenchrus ciliaris

Mission Grass

 

Pennisetum Polystachiom

Rhodes Grass

 

Cholris Gayana

 

SHIRE OF BROOME LOCAL PLANNING SCHEME No. 6 (LPS6) – LOCAL PLANNING POLICIES

This Policy is a Local Planning Policy adopted pursuant to Part 2, clause 4 of the deemed provisions of LPS6. LPS6 is administered by the Shire of Broome as the responsible authority under the Scheme. LPS6 was gazetted and came into operation on the 30 January 2015.

Planning policies adopted under LPS6 may be amended or rescinded after the procedures set out in  Part 2 clause 5 & 6 of the deemed provisions of LPS6 have been completed.

 


Minutes – Ordinary Meeting of Council 15 December 2016                                                         Page 222 of 223

 

9.2.3      TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016

LOCATION/ADDRESS:                            Nil

APPLICANT:                                              Nil

FILE:                                                           BYL12

AUTHOR:                                                   Environmental Health Officer

CONTRIBUTOR/S:                                    Manager Emergency, Health and Ranger Services

RESPONSIBLE OFFICER:                          Director Development Services

DISCLOSURE OF INTEREST:                     Nil

DATE OF REPORT:                                    24 November 2016

 

SUMMARY:         In June 2016 Council resolved to make a new Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 to replace the Trading, Outdoor Dining and Street Entertainment Local Law 2003.  The proposed local law was advertised and submissions from interested parties were invited in accordance with Council’s resolution at the June 2016 Ordinary Meeting of Council.

The purpose of this report is for Council to consider the submissions made during the submission period and, in accordance with the provisions of Section 3.12(4) of the Local Government Act 1995, make the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 14 October 2003                     Item 9.1.9

OMC 20 January 2004                      Item 9.1.8

OMC 29 September 2011                Item 9.1.4

OMC 14 June 2012                            Item 9.4.10

OMC 30 June 2016                            Item 9.2.4

 

Under the Local Government Act 1995, all Local Laws are required to be reviewed every 8 years. Whilst the existing Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 (existing Local Law) is not due for review until 2020, feedback from Councillors, community members and Shire Officers indicated a need for a comprehensive review prior to 2020.

Proposed changes in the format of a draft Local Law were presented to Council at the June 2016 Ordinary Meeting of Council (OMC).  Due to the scope of the changes, it was recommended that a new Local Law be adopted rather than amending the existing Local Law.

 

At the June 2016 OMC it was resolved:

That Council:

(1)   Proposes to make the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 as attached to this report;

(2)   Advertises in accordance with section 3.12(3)(a) of the Local Government Act 1995 the proposed Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 for a period of 42 days; and

(3)   In accordance with section 3.12(3)(b) of the Local Government Act 1995 forwards a copy of the advertisement and the proposed Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 to the Minister for Local Government.

 

The proposed Trading, Outdoor Dining and Street Entertainment Local Law 2016 (proposed Local Law) was subsequently advertised for public submissions. The advertisements were placed in the West Australian on 16-17 July 2016 and the Broome Advertiser on 21 July 2016, as well as on the Shire’s website and noticeboards at the Administration Building and Library.

 

The submission period closed on 2 September 2016. One public submission on the draft Local Law was received. 

 

In accordance with section 3.12(3)(b) of the Local Government Act 1995, a copy of the advertisement and the proposed Local Law was required to be sent to the Minister for Local Government. The Department of Local Government and Communities (DLGC) responded on behalf of the Minister on 18 November 2016 with advice on editing and other comments on the proposed Local Law.  The DLGC’s comments have been considered and incorporated where appropriate.

 

COMMENT

 

Attachment 1 to this report contains the proposed Local Law with tracked changes showing amendments made in response to the submissions that were received.  Attachment 2 to this report contains the proposed Local Law with the tracked changes accepted.

 

The DLGC and the other submitter made comments that are not likely to alter the scope of the proposed Local Law.  A schedule of the submissions received and Shire officers’ recommendations in relation to how these submissions should be addressed has been included as Attachment 3 to this report.

 

Nature of the proposed changes

 

The changes made to the propose Local Law in response to the submissions received are:

 

Contents:

·    title changed from ‘Arrangement’ to ‘Contents’;

·    clause headings inserted under each ‘Part’ due to the length of the Local Law;

·    the words ‘second schedule’ were removed as the Local Law does not contain a second schedule; and

·    enactment clause removed from table of contents page and placed on the next page, directly before ‘Part 1’.

 

Part 1:

·    cl 1.1 – delete the word ‘Title’ in the heading and replace with ‘Citation’;

·    cl 1.1 – delete the words ‘referred to’ and insert ‘cited’;

·    cl 1.4 – delete the phrase “by the Amendment Local Law published in the Government Gazette”;

·    cl 1.6 – amendments to, or addition of the following definitions:

‘event’;

‘trading’;

‘certificate of currency’;

‘licence number’;

‘pavement or visual artist’;

‘public liability insurance policy’;

‘standard business card’;

‘proprietor’; and

·    cl 1.6 – delete the following definitions as they are not used within the Local Law:

‘Liquor Act’;

‘local planning scheme’;

‘lot’;

‘private property’; and

‘secured amount’.

 

Part 2:

·    cl 2.3.2(f) – delete the words ‘desirable or’;

·    cl 2.6.2 – insert ‘the’ before ‘cancellation’.

 

Part 3:

·    cl 3.5.1(c) – insert the phrase ‘unless the variations are made by the local government in accordance with clause 2.4.4;

·    cl 3.6.2 – delete the words ‘to same’; and

·    cl 3.7.2(a) – insert the word ‘to’ after ‘adjacent’.

 

Part 4:

·    cl 4.5.1(b) – insert the phrase ‘unless the variations are made by the local government in accordance with clause 2.4.4’.

 

Part 5:

·    cl 5.6.1(b) – insert the phrase ‘unless the variations are made by the local government in accordance with clause 2.4.4’;

·    cl 5.7.1(c) – delete the words ‘or police officer’ as a police officer is included in the definition of authorised person; and

·    cl 5.7.2(g) – replace the reference to ‘paragraph (g)’ with ‘sub-clause (f)’.

 

Part 6:

·    cl 6.1 – insert sub-clause (b) stating ‘forms part of a market for which a licence has been granted by the local government under clause 4.4’.

 

Part 7:

·    cl 7.2.1(b) – insert the word ‘the’.

 

Part 9:

·    cl 9.2.2 – delete the words ‘the First’ and insert ‘1’ after the word ‘Schedule’.

 

Schedule 1:

·    item 7 – remove phrase ‘outdoor dining operation’ and replace with ‘operation of an outdoor dining area’;

·    item 14 – remove offence of ‘Failing to lodge copy of approved plans of street markets with Fire and Emergency Services Authority’ as the offence is not within the Local Law;

·    item 33 – delete the words ‘or police officer’ as a police officer is included in the definition of authorised person;

·    item 63 – delete the phrase ‘Failing to vacate approved street entertainment area when not performing’ and replace with ‘Failing to use the approved street entertainment area to perform during the days and times specified or vacate that area’;

·    item 65 – insert the phrase ‘the name of the licensee and’;

·    item 66 – relocation and rewording of offence previously at item 73 to item 66 as ‘Failing to return the performance location to its former condition’; and

·    changes to item and clause numbering to ensure that each offence references the correct clause within the Local Law.

 

Editing changes:

The DLGC, in their submission, recommended a number of minor editing changes which were also incorporated into the proposed Local Law.

 

Purpose and effect of the new Local Law

The purpose and effect of the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 are:

 

Purpose: To provide for the regulation, control and management of outdoor dining areas, markets, trading (including door to door) and street entertainment, in any public place within the district.

 

Effect:

·    To establish a regime for the licencing and regulation of outdoor dining areas, markets, trading (including door to door) and street entertainment in public places.

·    To provide clarity around the requirements for undertaking outdoor dining, markets, trading and street entertainment in public places in the Shire of Broome

 

Summary

Overall, the amendments to the proposed Local Law in response to submissions is not considered to make the Local Law significantly different.  Therefore, it is recommended that Council resolve to make the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 as shown in Attachment 2 to this report, and authorise the necessary statutory steps to have the Local Law take effect.

 

CONSULTATION

 

The proposed Local Law was advertised in accordance with section 3.12(3) of the Local Government Act 1995 for public comment for a period of 42 days.  A copy of the proposed Local Law was provided to the Department of Local Government for comment.

 

Subject to these changes, it is recommended that Council make the proposed Local Law.

 

STATUTORY ENVIRONMENT

 

The Local Government Act 1995 provides the head of power for local governments to make local laws.

 

The process for the making of local laws is prescribed in section 3.12 of the Local Government Act 1995.  This section states:

 

 3.12. Procedure for making local laws

      (1)   In making a local law a local government is to follow the procedure described in this section, in the sequence in which it is described.

      (2)   At a council meeting the person presiding is to give notice to the meeting of the purpose and effect of the proposed local law in the prescribed manner.

      (3)   The local government is to — 

                 (a)     give Statewide public notice stating that — 

                               (i)    the local government proposes to make a local law the purpose and effect of which is summarized in the notice; and

                              (ii)    a copy of the proposed local law may be inspected or obtained at any place specified in the notice; and

                             (iii)    submissions about the proposed local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given;

                           and

                 (b)     as soon as the notice is given, give a copy of the proposed local law and a copy of the notice to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister; and

                 (c)     provide a copy of the proposed local law, in accordance with the notice, to any person requesting it.

(3a)   A notice under subsection (3) is also to be published and exhibited as if it were a local public notice.

      (4)   After the last day for submissions, the local government is to consider any submissions made and may make the local law* as proposed or make a local law* that is not significantly different from what was proposed.

          * Absolute majority required.

      (5)   After making the local law, the local government is to publish it in the Gazette and give a copy of it to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister.

      (6)   After the local law has been published in the Gazette the local government is to give local public notice — 

                 (a)     stating the title of the local law; and

                 (b)     summarizing the purpose and effect of the local law (specifying the day on which it comes into operation); and

                 (c)     advising that copies of the local law may be inspected or obtained from the local government’s office.

      (7)   The Minister may give directions to local governments requiring them to provide to the Parliament copies of local laws they have made and any explanatory or other material relating to them.

      (8)    In this section —

              making in relation to a local law, includes making a local law to amend the text of, or repeal, a local law.

 

After the last day for submissions, the local government is to consider any submissions made, and may make the Local Law as proposed or make a Local Law that is not significantly different from what was proposed.

 

The Local Law is then published in the Government Gazette and a copy sent to the relevant Minister and the State Parliament Joint Standing Committee on Delegated Legislation.

 

The Local Law comes into effect 14 days after publication in the Government Gazette.

 

POLICY IMPLICATIONS

 

If the proposed Local Law is implemented then the following policies will require a review and possible amendment:

 

4.2.4  Commercial Activities on Cable Beach

4.2.12 Trading in Public Places

4.5.1 Commercial Camel Activities on Cable Beach

5.1.11Events

 

It is noted that each of the above policies are currently under review.  Further changes to these policies may be required when the new Local Law takes effect.

 

FINANCIAL IMPLICATIONS

 

Nil.

 

RISK

 

If the existing Local Law is not amended, Shire officers will continue to be at risk of not being able to adequately enforce the provisions of the Local Law. Modernisation and clarity needs to be added to ensure the legislation remains relevant and serves to achieve its purpose and effect.

 

The risk of the incorrect drafting of this Local Law is mitigated through submission of the approved draft to the DLGC and subsequent review by the Joint Standing committee on Delegated Legislation.

 

STRATEGIC IMPLICATIONS  

 

Our People Goal – Foster a community environment that is accessible, affordable, inclusive, healthy and safe:

 

Effective communication

 

Participation in recreational and leisure activity

 

A healthy and safe environment

 

Our Place Goal – Help to protect the nature and built environment and cultural heritage of Broome whilst recognising the unique sense of the place:

 

Retention and expansion of Broome’s iconic tourism assets and reputation

 

Our Prosperity Goal – Create the means to enable local jobs creation and lifestyle affordability for the current and future population:

 

Affordable and equitable services and infrastructure

 

Our Organisation Goal – Continually enhance the Shire’s organisational capacity to service the needs of a growing community:

 

Improved systems, processes and compliance

 

 

VOTING REQUIREMENTS

Absolute Majority

 

Council Resolution:

(Report Recommendation)

Moved: Cr C Mitchell                                              Seconded: Cr H Tracey

 

That Council:

1.       Under the provisions of section 3.12 of the Local Government Act 1995:

(a)  makes the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016; and

(b)  publishes the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 in the Government Gazette and provides local public notice of the new Local Law.

2.       Forwards a copy of the gazetted Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 to the Minister for Local Government, and provides documentation supporting the new local law to the Joint Standing Committee on Delegated Legislation.

CARRIED UNANIMOUSLY BY ABSOLUTE MAJORITY 7/0

 

Attachments

1.

Attachment 1- Trading Outdoor Dining and Street Entertainment Local Law 2016- Amended in response to submissions with tracked changes

2.

Attachment 2- Trading Outdoor Dining and Street Entertainment Local Law 2016 Final no tracked  changes

3.

Attachment 3- Schedule of submissions with officer comment

  


Item 9.2.3 - TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016

 

 

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Item 9.2.3 - TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016

 

 

 

 

LOCAL GOVERNMENT ACT 1995

 

 

 

 

 

 

SHIRE OF BROOME

 

 

 

 

 

 

 

 

 

TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016

(This copy of the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016 is as published in the Government Gazette on [insert date] 2016)


 

 

LOCAL GOVERNMENT ACT 1995

SHIRE OF BROOME

 

 

TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016

 

 

CONTENTS

 

 

Part 1 - Preliminary                                                                                                            

1.1          Citation

1.2          Commencement

1.3          Purpose

1.4          Repeal

1.5          Application

1.6          Definitions

 

Part 2 – Application for licence and issue of licence                                   

2.1          Planning consent

2.2          Application for licence

2.3          Determination of application

2.4          Issue of licence

2.5          Licence renewal

2.6          Fees

2.7          Cancellation of licence

2.8          Suspension of licensee rights and privileges

2.9          Rights of objection and appeal

 

Part 3 – Outdoor dining                                                                                                   

3.1          Outdoor dining

3.2          Limitations on outdoor dining

3.3          Licence application

3.4          Outdoor dining licence

3.5          Term and validity of licence

3.6          Cancellation of an outdoor dining license

3.7          Responsibilities of licensee

 

Part 4 - Markets                                                                                                                   

4.1          Markets

4.2          Limitations on markets

4.3          Licence application

4.4          Market licence

4.5          Term and validity of license

4.6          Responsibilities of licensee

 

Part 5 - Trading                                                                                                                    

5.1          Trading

5.2          Limitations on trading

5.3          Exemption from requirement to pay fee

5.4          Licence application

5.5          Trading licence

5.6          Term and validity of licence

5.7          Responsibilities of licensee

 

Part 6 – Street entertainment                                                                                    

6.1          Street entertainment

6.2          Limitations on street entertainment

6.3          Licence application

6.4          Street entertainment licence

6.5          Term and validity of licence

6.6          Responsibilities of licensee

6.7          Cancellation or variation of street entertainment licence

 

Part 7 – Secured sum                                                                                                         

7.1          Security for restoration and reinstatement

7.2          Use by the local government of secured sum

 

Part 8 - Miscellaneous                                                                                                     

8.1          Directions of authorised person

8.2          Notice requiring works to be done to remedy breach

8.3          Notice to advise licensee of planned or emergency works

8.4          Works in public property

8.5          Serving of notice

8.6          Public liability insurance and indemnity

 

Part 9 – Offences and penalties                                                                                 

9.1          Offences

9.2          Prescribed offences and modified penalties

 

 

Schedule 1 – Prescribed offences and modified penalties


 

LOCAL GOVERNMENT ACT 1995

SHIRE OF BROOME

 

 

TRADING, OUTDOOR DINING AND STREET ENTERTAINMENT LOCAL LAW 2016

 

Under the powers conferred by the Local Government Act 1995 and under all other powers enabling it, the Council of the Shire of Broome resolved to make the following local law on [insert date] 2016.

 

 

PART 1 - PRELIMINARY

 

1.1     Citation

 

          This local law may be cited as the Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2016.

 

1.2     Commencement

 

          This local law comes into operation 14 days after the date of its publication in the Government Gazette.

 

1.3     Purpose

 

          The purpose of this local law is to provide for the regulation, control and management of outdoor dining areas, markets, trading (including door to door) and street entertainment, in any public place within the district.

 

1.4     Repeal

 

          The Shire of Broome Trading, Outdoor Dining and Street Entertainment Local Law 2003 as published in the Government Gazette on 5 March 2004 and amended on 31 July 2012, is repealed.

 

1.5     Application

 

          This local law applies throughout the district.

 

1.6     Definitions

 

          In this local law unless the context requires otherwise:

 

          Act means the Local Government Act 1995;

advertising device means an object on which words, numbers or figures are written, placed, affixed or painted for the purpose of advertising any business, function, operation, event, undertaking, product, or thing and includes a vehicle or trailer or other similar object placed or located so as to serve the purpose of advertising a business, function, operation, event, undertaking, product or thing;

          applicant means a person who has lodged an application for a licence;

          application fee means the application fee referred to in subclause 2.2.2(d) and which relates to the lodgement, assessment and determination of an application for a licence but does not include the licence fee;

     approved area means an approved outdoor dining area, approved street entertainment area, approved market area or approved trading area;

     approved market area means the portion of a public place approved for the setting up or conduct of a market under a market licence;

     approved outdoor dining area means the portion of a public place approved for the setting up or conduct of an outdoor dining area under an outdoor dining licence;

     approved street entertainment area means the portion of a public place approved for street entertainment under a street entertainment licence;

     approved trading area means the portion of a public place approved for the carrying on of trading under a trading licence, or in the case of a licensee who does not trade from a fixed location, the route or the areas approved for the carrying on of trading under a trading licence;

          authorised person means:

(a)   a person appointed by the local government under section 9.10 of the Act to perform any of the functions of an authorised person under this local law; and

(b)   any member of the Western Australian Police Force;

          carriageway has the meaning given to it in the Road Traffic Code 2000;

          certificate of currency is a document which outlines the currency of an insurance policy, it details the type of policy, sums insured, policy expiry date and the insurer;

          Council means the council of the local government;

development approval means approval granted by the local government in accordance with the Planning and Development Act 2005;

          district means the district of the local government;

event means:

(a)   an occurrence held within the local government on private or public land, by a person(s)/group/organisation, where people assemble at a given time for entertainment, recreation or community purposes and includes but is not limited to:

       (i)     concerts and events run as a commercial activity;

       (ii)    ceremonies and processions;

       (iii)   sporting and competitor events such as marathons, triathlons, organised swims and other similar events;

       (iv)   shows and fairs including circuses, carnivals and other customised venue based events;

       (v)    festivals, exhibitions and expos; and

       (vi)   community events and fundraisers, and

(b)   an occurrence approved by the local government in accordance with the Shire of Broome Local Government Property and Public Places Local Law 2012;

          food has the same meaning as that in section 9 of the Food Act 2008;

          food premises means premises –

(a)      on which a food business as defined by the Food Act 2008 is carried out; or

          (b)      that is the subject of a hotel licence, limited hotel licence, special facility licence or restaurant licence granted under the Liquor Control Act 1988;

          footpath means an area that is open to the public that is designated for, or has as one of its main uses, use by pedestrians;

          goods means goods, wares, merchandise and produce;

          licence means a licence issued under this local law;

          licence fee means the fee referred to in subclause 2.4.1(b) and which relates to the issue of a licence;

          licence number means the licence reference number assigned to a licence by the local government;

          licensee means the holder of a licence;

          liquor has the meaning given to it in section 3 of the Liquor Control Act 1988;                       local government means the Shire of Broome;

local government property means anything:

(a)   which belongs to, is owned by or is under the care, control and management of the local government;

(b)   which is an “otherwise unvested facility” within section 3.53 of the Act; or

(c)      of which the local government is a management body under the Land Administration Act 1997, but does not include a thoroughfare;

          market means a collection of stalls set up or conducted for the purpose of trading;

          market licence means a licence issued under this local law to set up or conduct a market in a public place;

          nuisance means:

          (a)      any activity, thing, condition, circumstance or state of affairs caused or contributed to by a person which is injurious or dangerous to the health of another person of normal susceptibility, or which has a disturbing effect on the reasonable physical, mental or social state of another person;

          (b)      any thing a person does or permits or causes to be done which interferes with or is likely to interfere with the reasonable enjoyment or safe use by another person of any public place; or

          (c)      any thing a person does in or on a public place which unreasonably detracts from or interferes with the enjoyment or value of nearby land owned by another person;

outdoor dining area means an area in which tables, chairs and other structures are provided for the purpose of the supply of food or drink to the public or the consumption of food or drink by the public;

outdoor dining licence means a licence issued under this local law to set up and conduct an outdoor dining area in a public place;

pavement or visual artist means performance art whereby the artist renders artistic designs on pavement such as streets, footpaths and town squares or creates visual artworks such as painting, sculpting, drawing, photography etc;

person does not include the local government;

proprietor in relation to a food premises, means -

(a)      the person carrying on the food business or if that person cannot be identified, the person in charge of the food business; or

          (b)      the holder of a hotel licence, a limited hotel licence, a special facility licence or a restaurant licence granted under the Liquor Control Act 1988 in relation to the food premises;

public liability insurance policy means an insurance policy held with an insurance company that insures against all sums for which the policy holder may become legally liable by way of compensation for claims of personal injury or property damage that a third party suffers (or claims to have suffered) as a result of the policy holder’s business operation/activities;

public place means any thoroughfare or local government property;

public thoroughfare means any thoroughfare which the public are allowed to use; stall means a movable or temporarily fixed structure, stand or table and includes a vehicle;

          standard business card means a card made of paper or cardboard displaying the details of the licensee that is no larger than 8.5 centimetres by 5.5 centimetres in size;

          street entertainment means any form of theatrical, artistic, musical, audio or visual performance, whether for reward or not, and includes busking;

street entertainment licence means a licence issued under this local law to engage in street entertainment in a public place;

thoroughfare means a road or other thoroughfare including parking areas, structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end;

trading includes:

(a)      the selling or offering for sale of goods or services in a public place; or

(b)      the hiring or offering for hire of goods; or 

(c)      the soliciting of orders for goods or services in a public place; or

(d)      the undertaking of training or instruction, including fitness classes, in a public place, where:

(i)    any person(s) receiving the training or instruction pay a fee to the person undertaking the training or instruction; and

(ii)    the training or instruction operates primarily and regularly in public places; or

          (d)      displaying goods in any public place for the purpose of:

                   (i)    offering them for sale or hire;

                   (ii)    inviting offers for their sale or hire;

                   (iii)   soliciting orders for their sale or hire; or

                   (iv)   carrying out any other transaction in relation to them; and

          (e)      the going from place to place, whether or not public places, and:

                   (i)    offering goods or services for sale or hire; or

                   (ii)    inviting offers or soliciting orders for the sale or hire of goods or services, but does not include:

A.    the delivery of pre ordered goods or services to the purchaser of those goods or services; or

B.    the taking of further orders for goods or services from the purchaser of the pre ordered goods or services when those orders are taken at the same time as the previous order is being delivered;

                   but excludes the erection or placement of a sign advertising the selling or hiring of, the offering for sale or hire of or the soliciting of orders for goods or services in a public place approved in accordance with the Shire of Broome Local Government Property and Public Places Local Law 2012;

trading licence means a licence issued under this local law to carry on trading; and

vehicle includes:

(a)      every conveyance and every object capable of being propelled or drawn on wheels, tracks or otherwise; and

(b)      an animal being ridden, driven or led,

but excludes:

(c)      a wheel-chair or any device designed for use, by a physically impaired person on a footpath; and

(d)      a pram, stroller or  similar device.

 

 

PART  2 - APPLICATION FOR LICENCE AND ISSUE OF LICENCE

 

2.1     Planning consent

 

          The requirement for a licence under this local law is additional to the requirement, if any, for development approval.

 

2.2     Application for licence

 

 

          2.2.1  Where a person is required to obtain or hold a licence under this local law, that person must apply for the licence in accordance with subclause 2.2.2 and—

 

                   (a)      clause 3.3 in the case of an application for an outdoor dining licence;

                   (b)     clause 4.3 in the case of an application for a market licence;

                   (c)      clause 5.4 in the case of an application for a trading licence; and

                   (d)     clause 6.3 in the case of an application for a street entertainment licence.

 

          2.2.2  An application for a licence under this local law must —

 

                   (a)      be in the form determined by the local government;

                   (b)     be signed by the applicant;

                   (c)      provide the information required by the form or by any other clause of this local law; and

                   (d)     be forwarded to the local government together with the application fee.

 

          2.2.3  The local government may refuse to consider or determine an application for a licence which is not in accordance with subclause 2.2.2 or any other clause containing requirements to be complied with when making an application for a licence.

 

2.3     Determination of application

 

 

          2.3.1  The local government may, in respect of an application for a licence —

 

                   (a)      refuse to approve the application; or

                   (b)     approve the application on such terms and conditions, if any, as it sees fit.

 

          2.3.2  The local government may refuse to approve an application for a licence, where -

 

                   (a)      it is not in accordance with clause 2.2 or any other clause containing requirements to be complied with when making an application for a licence;

                   (b)     the activity will have an unreasonable impact on an established shop or an activity undertaken under an existing licence;

(c)      the application does not comply with a policy of the local government adopted by the Council and relevant to that application;

(d)      the proposed activity or location in respect of which a licence is sought is considered by the local government to be undesirable;

(e)      the proposed stall is considered by the local government to be unsuitable in any respect for the activity or location for which the licence is sought;

(f)      the applicant is not a suitable person to hold a licence;

                   (g)     the applicant is an undischarged bankrupt or is in liquidation;

                   (h)      the applicant has entered into any composition or arrangement with creditors;

                   (i)       a manager, an administrator, a trustee, a receiver or a receiver and manager has been appointed in relation to any part of the applicant’s undertakings or property; or

                   (j)       there are other grounds on which the local government considers  the application should be refused.

 

          2.3.3  Where the local government approves an application for a licence, it may approve the application subject to conditions by reference to any policy of the local government adopted by the Council which contains conditions subject to which an application for a licence may be approved.

 

          2.3.4  If the local government refuses to approve an application for a licence, it is to give written reasons for that refusal to the applicant.

 

2.4     Issue of licence

 

 

          2.4.1  When—

                   (a)      the local government approves an application for a licence; and

                   (b)     the applicant pays the licence fee,

                   then the local government will issue to the applicant a licence in the form determined by the local government.

 

          2.4.2  A licence may include plans or other documents other than the form of licence.

 

2.4.3  A licence will not be valid until such time as any public liability insurance policy, if required as a condition of the licence, has been put into effect and a certificate of currency covering the period of the licence has been provided to the local government.

 

2.4.4  The local government may vary the terms or conditions of a licence and the licensee must comply with those terms and conditions as varied on and from the date of notification of the variation.

 

2.5     Licence renewal

 

 

          2.5.1  Prior to the expiry of an outdoor dining licence, a market licence or a trading licence, the licensee may apply to the local government for the renewal of the licence.

 

          2.5.2  Subject to subclause 2.5.3, the provisions of this local law which are relevant to the licence to be renewed apply to an application for the renewal of the licence.

 

          2.5.3 Where the relevant details in relation to an activity have not changed since the licence was issued, the licensee is not required to resubmit details required at the time of the initial application with the application to renew the licence.

 

          2.5.4  Where the local government approves an application under subclause 2.5.1—

 

                   (a)      the licensee must pay the licence fee for the renewed licence prior to the issue of that licence; and

                   (b)     the renewed licence will be in the form determined by the local government.

 

2.6     Fees

 

         

          2.6.1  All fees referred to in this local law will be imposed and determined by the local government under and in accordance with sections 6.16 to 6.19 of the Act.

 

          2.6.2  In the event of the cancellation of a licence, a licensee will not be entitled to a refund of the licence fees for the remainder of the licence period unless the licence is cancelled under clause 2.7(g).

 

2.7     Cancellation of licence

 

          The local government may cancel any licence if—

 

                   (a)      the licensee does not comply with the conditions of the licence;

          (b)      the licensee is convicted of an offence against this local law;

(c)      the licensee does not comply with subclause 8.6.1 where it is a condition of the licence that the licensee provide a public liability insurance policy;

(d)      the licensee does not comply with a notice given under Part 8;

(e)      the licensee fails to undertake the activity approved by the licence for a period of 12 months;

(f)      when relevant to the activity regulated by the licence:

(i)       the licensee has become bankrupt or gone into liquidation;

(ii)      the licensee has entered into any composition or arrangement with creditors; or

(iii)     a manager, an administrator, a trustee, a receiver, or a receiver and manager is appointed in relation to any part of the licensee's undertakings or property; or

          (g)      there are other grounds on which the local government considers the licence should be cancelled.

 

2.8     Suspension of licensee rights and privileges

 

 

          2.8.1  Where a public liability insurance policy is required as a condition of a licence, the rights and privileges granted to a licensee on the issue of a licence will be taken to be suspended if that policy lapses, is cancelled or is no longer current.

 

          2.8.2  The rights and privileges granted to a licensee on the issue of a licence may be suspended by the local government for the purpose and duration of any works proposed or done in or adjacent to the area subject of the licence, by or on behalf of a Government department, instrumentality of the Crown or the local government.

 

2.9     Rights of objection and appeal

 

          When the local government makes a decision as to whether it will—

 

          (a)      grant a person a licence under this local law; or

          (b)      renew, vary, transfer or cancel a licence that a person has under this local law,

 

          the provisions of Division 1 of Part 9 of the Act and regulation 33 of the Local Government (Functions and General) Regulations 1996 apply to that decision.

 

 

PART 3 - OUTDOOR DINING

 

3.1     Outdoor dining

 

          A person must not establish an outdoor dining area in a public place without an outdoor dining licence, unless the outdoor dining area is established—

(a)      in accordance with a development approval;

(b)      as part of an event; or

(c)      in accordance with an approval granted by the local government under another written law.

 

 

3.2     Limitations on outdoor dining

 

          An outdoor dining licence—

 

          3.2.1  (a)      may only be issued—

(i)    to the proprietor of a food premises, for use of land adjacent to the food premises;

(ii)    where the positioning of tables and chairs is not in conflict with existing street furniture approved or installed by the local government; and

(iii)   where the pedestrian flow on any footpath will not be unreasonably impeded; and

(b)      is only transferable with the approval of the local government and on payment of the transfer fee.

 

          3.2.2  The issue of an outdoor dining licence does not give the licensee exclusive possession or use of the approved outdoor dining area.

 

3.3     Licence application

 

         

3.3.1  An applicant for an outdoor dining licence must comply with subclause 2.2.2.

 

3.3.2  The application for an outdoor dining licence must be forwarded to the local government together with:

 

          (a)      a plan or plans to a scale of 1:50 showing—

                          (i)    the location and dimensions of the proposed outdoor dining area and the means by which the outdoor dining area will be separated from the rest of the public place;

                          (ii)    the food premises to which the outdoor dining area is adjacent, including any indoor seating areas, the area of food preparation and any counter service, and the dimension, location and purpose of all entrances to the food premises;

                          (iii)   the dimensions, levels and slope of the adjacent footpath and the location and nature of any street furniture, drainage and utilities in the immediate vicinity of the food premises;

                          (iv)   the location and nature of any parking or service bays in the immediate vicinity of the food premises and the alignment of the adjacent carriageway;

                          (v)   the number, position and dimensions of all tables, chairs and associated furniture and fixtures proposed to be placed in the outdoor dining area;

                          (vi)   the position and description of any landscaping, bollards or other objects proposed to be used or displayed in the proposed outdoor dining area; and

(vii)  any other information requested by the local government to assist with the assessment of the application;

 

(b)      a plan to a scale of 1:50 showing the location of the proposed outdoor dining area and all land and improvements within 30 metres of the boundaries of the eating area, and in particular—

(i)    the development and use of adjoining properties, including the location of any pedestrian or service access to those sites, the alignment of the building facade and the location of any windows;

(ii)    the footpath and carriageway alignment, vehicle crossovers and any on-street parking provision or restrictions; and

(iii)   any street furniture or other structures situated in the verge area including any power poles, bollards, phone booths, bus shelters, fire hydrants, trees or free standing signage;

 

(c)      a management plan outlining the operations of the proposed outdoor dining area including—

(i)    the manner in which food and other dining accessories will be conveyed to and protected from contamination in the proposed outdoor dining area;

(ii)    the proposed days and times of operation of the outdoor dining area;

(iii)   the nature of any advertising devices to be displayed on or within the proposed outdoor dining area;

(iv)   the arrangements for serving liquor to customers in the proposed outdoor dining area;

(v)   where tables, chairs, furniture and equipment to be used as part of the proposed outdoor dining area will be stored when the proposed outdoor dining area is not open for business;

(vi)   the daily cleaning schedule for the proposed outdoor dining area which must include:

A.      sweeping, washing or scrubbing the paved surface;

B.      removing and disposing of all rubbish, food and cigarette ashes and butts; and

C.      clearing the immediate surrounds of any rubbish, matter or things coming from or caused by patrons of the proposed outdoor dining area;

(vii)  the type of table ornaments, including umbrellas and ashtrays, to be provided, noting that ashtrays must be such that the contents of the ashtray and the ashtray itself will not be blown onto the paved surface of the proposed outdoor dining area; and

(viii) details of how customers of the proposed outdoor area will be discouraged from throwing or disposing of rubbish, cigarette butts or food onto the paved surface of the proposed outdoor dining area.

 

3.4     Outdoor dining licence

 

         

          3.4.1  An outdoor dining licence granted by the local government will include—

 

                   (a)      an endorsed copy of the plan or plans detailing the location and number of tables and chairs, plus any other furniture and equipment required for the operation of the outdoor dining area;

                   (b)     the management plan;

            (c)      the days and hours of operation; and

                   (d)     details of any terms and conditions to be included as part of the licence.

 

          3.4.2  The licensee must not commence trading until the local government is satisfied that all conditions imposed under subclause 2.3.1(b) have been met.

 

3.5     Term and validity of licence

 

 

          3.5.1  An outdoor dining licence remains valid until—

 

                   (a)      30 June of the financial year in which the licence was issued, noting that the licence fee for a licence may be calculated on a pro-rata basis;

                   (b)     the proprietor of the food premises changes and no transfer of the licence has been approved under subclause 3.2.1(b);

                   (c)      variations are made to the outdoor dining area, including an increase or reduction in the approved outdoor dining area or the type of furniture or equipment used in the operation, unless the variations are made by the local government in accordance with clause 2.4.4;

                   (d)     any public liability insurance policy required as a condition of the licence lapses, is cancelled or is no longer in operation; or

                   (e)      the licence is cancelled by the local government.

 

3.5.2  If any of the events specified in subclause 3.5.1 occur, then a new application for an outdoor dining licence must be made and a new outdoor dining licence issued before any outdoor dining area can be established.

 

3.6     Cancellation of an outdoor dining licence

 

 

          3.6.1  Without limiting clause 2.7, the local government may cancel an outdoor dining licence where —

 

(a)      there is a lapse or cancellation of the food premises registration or licence issued to the proprietor under the Food Act 2008; or

                   (b)     the setting up or conduct of the outdoor dining area is determined by the local government to be detrimental to the interests of the public, any adjacent property owner or occupier or cause a nuisance because of the behaviour of customers.

 

          3.6.2  A decision to cancel a licence under sub-clause (b) will not be made without first having advised the licensee of the nature of any complaint or concern and having given the licensee an opportunity to respond.

 

3.7     Responsibilities of licensee

 

 

          3.7.1  The licensee must—

 

                   (a)      comply with the conditions of the outdoor dining licence;

                   (b)     not permit the operation of the outdoor dining area to extend beyond the portion of a public place specified in the plans approved as part of the licence;

                   (c)      manage the approved outdoor dining area in accordance with the approved management plan submitted with the application, subject to any approved amendments or modifications by the local government;

                   (d)     keep the approved outdoor dining area free of any obstacle or matter likely to cause injury to persons or property;

                   (e)      ensure furniture and equipment remains within the approved outdoor dining area and the storage location approved as part of the licence and does not impede pedestrian flow or access;

(f)      repair any damage to the surface area or any fixtures, fittings or utility services in or on the approved outdoor dining area caused by or attributable to the conduct of the approved outdoor dining area;

(g)      pay all fees, charges, rates and taxes levied or incurred as a result of the establishment and operation of the approved outdoor dining area;

                   (h)      ensure trading within the approved outdoor dining area is limited to only the operating hours stated in the licence;

(i)       pay all and any costs associated with the alteration, repair, reinstatement or reconstruction of all or part of the approved outdoor dining area or adjacent public place required as a result of the operation of the outdoor dining area.

 

          3.7.2  If the outdoor dining licence lapses or is cancelled, the licensee must—

 

(a)      remove all furniture, equipment, structures and other things placed in or adjacent to the approved outdoor dining area; and

(b)      reinstate the area to the satisfaction of the local government or pay the costs of that reinstatement.

 

 


PART 4 - MARKETS

 

4.1     Markets

 

          A person must not set up or conduct a market in a public place without a market licence, unless the market—

          (a)      forms part of an event; or

              (b) is established in accordance with an approval granted by the local government under another written law.

 

4.2     Limitations on markets

 

 

4.2.1  A market licence is only transferable with the approval of the local government and on payment of the transfer fee.

 

          4.2.2  The issue of a market licence does not give the licensee exclusive possession or use of the approved market area.

 

4.3     Licence application

 

         

          4.3.1  An applicant for a market licence must comply with subclause 2.2.2.

 

          4.3.2  An application for a market licence must be forwarded to the local government together with—

 

(a)   a plan or plans to a scale of 1:50 showing:

(i)    the location and dimensions of the proposed market;

(ii)    the dimensions of the public place including any footpath, and the location and nature of any street furniture, trees, utilities, parking or service bays in the area of the proposed market; and

(iii)   the position and dimensions of all proposed stalls;

(b)   any other information requested by the local government to assist with the assessment of the application;

(c)   a management plan outlining the operations of the proposed market including:

(i)    the days and times of operation;

(ii)    the type and form of any advertising devices to be displayed on or within the proposed market; and

(iii)   details of how the operational responsibilities of the licensee will be met;

(d)   the nature and extent of any activity relating to street entertainment; and

(e)   details of the goods or services to be traded under the market licence.

 

4.4     Market licence

 

          A market licence granted by the local government will include—

 

          (a)      a licence number;

          (b)      an endorsed copy of the plan or plans detailing the location where any stalls, furniture displays and other equipment may be placed for the operation of the market;

          (c)      the management plan;

          (d)      the days and hours of operation; and

          (e)      any terms and conditions of the licence.

 

4.5     Term and validity of licence

 

 

          4.5.1  A market licence remains valid until—

         

                   (a)      the expiry date stated in the licence is reached;

                   (b)     variations are made to the market area, including an increase or reduction in the approved market area, unless the variations are made by the local government in accordance with clause 2.4.4;

                   (c)      any public liability insurance policy required as a condition of the licence lapses, is cancelled or is no longer in operation; or

                   (d)     the licence is cancelled by the local government.

 

          4.5.2  If any of the events specified in subclause 4.5.1 occur, then a new application for a market licence must be made and a new market licence issued before any market can be set up or conducted.

 

4.6     Responsibilities of licensee

 

 

          4.6.1  The licensee must—

                   (a)      comply with the conditions of the market licence;

                   (b)     not permit the operation of the market to extend beyond the portion of a public place specified in the plans and approved as part of the licence;

          (c)      prior to setting up or conducting the market, obtain the following further approvals and make arrangements as follows:

(i)    where the market is to be set up or conducted on a public thoroughfare, obtain approval from the local government and Western Australian Police Service for the closure of the public thoroughfare to vehicular traffic or the part of it where the market is to be held during the hours of operation of the market;

(ii)    ensure adequate refuse collection arrangements have been made to the satisfaction of the local government; and

                            (iii)   where appropriate, have the necessary local government approvals under the Health (Public Buildings) Regulations 1992, including a:

                            A.       certificate of approval under regulation 6 of those regulations; and

                                      B.       certificate of electrical compliance under regulation 10 of those regulations.

 

          4.6.2  During the operation of the market and the setting up and dismantling of the market, the licensee must—

                   (a)      maintain pedestrian access through and beyond the approved market area;

                   (b)     maintain access to building entries adjacent to the approved market area;

                   (c)      retain access to existing or approved outdoor dining areas associated with the building entries referred to in sub-clause (b);

                   (d)     maintain adequate access for emergency vehicles through any thoroughfare of the approved market area;

                   (e)      stabilise all stalls, furniture and other equipment provided and used in the operation of the market at all times and remove stalls, furniture and equipment when not in use;

                   (f)      maintain noise levels from any associated music, announcements and the like, in accordance with any condition of the market licence, so as not to cause a nuisance; and

                   (g)     maintain the approved market area clean and free from rubbish.

 

          4.6.3  The licensee must at the conclusion of the operation of each market, ensure that all stalls, furniture and other equipment used in the operation of the market, are removed and the area returned to the condition it was in before the commencement of the market, and to the satisfaction of the local government.

 

 

PART 5 – TRADING

 

5.1     Trading

 

          A person must not undertake trading in a public place without a trading licence, unless the trading—

(a)   is undertaken as part of an event;

(b)   is undertaken in accordance with a valid market licence;

(c)   is undertaken in accordance with an approval granted by the local government under another written law; or

(d)   is of a type or undertaken in a way that is specified as being exempt from the requirement for a trading licence under a policy adopted by the local government.

 

 

5.2     Limitations on trading

 

 

          5.2.1  A trading licence is only transferable with the approval of the local government and on payment of the transfer fee.

.

 

          5.2.2  The issue of a trading licence does not give the licensee exclusive possession or use of the approved trading area.

 

5.3     Exemption from requirement to pay fee

 

 

          5.3.1  In this clause:

 

charitable organisation means an institution, association, club, society or body, whether incorporated or not, the objects of which are of a charitable, benevolent, religious, cultural, educational, recreational, sporting or other like nature and from which any member does not receive any pecuniary profit except where the member is an employee or the profit is an honorarium.

 

          5.3.2  The local government may waive the application fee referred to in clause 2.2.2(d) or the licence fee referred to in clause 2.4.1(b) or both, or may return any such fee which has been paid, if trading is carried on—

 

(a)      on a public place adjoining the normal place of business of the applicant for the trading licence; or

(b)      solely by members of a charitable organisation to raise funds for that charitable organisation.

 

5.4     Licence application

 

         

5.4.1  An applicant for a trading licence must comply with subclause 2.2.2.

 

5.4.2  An application for a trading licence must be forwarded to the local government together with—

(a)   details of the number of persons to be employed or engaged in the trading at any one time;

(b)   a plan of the proposed location or, where the trading will not be conducted from a fixed location, a description of the route or areas from which the applicant proposes to trade;

(c)   details of the days and hours of operation;

(d)   details of the proposed goods or services to be traded under the trading licence;

(e)   if any stall will be used for trading, a detailed and accurate plan and description, including dimensions, of the stall; and

(f)    where the applicant is a corporation, the name and address of the person responsible for complying with any terms and conditions of the licence.

 

5.5     Trading licence

 

          A trading licence granted by the local government will—

          (a)      include a licence number;

          (b)      include the location, days and hours of operation and approved trading area;

          (c)      detail the goods or services which can be traded under the trading licence;

          (d)      specify the number of persons that may carry on trading at any time under the trading licence; and

          (e)      detail any other terms and conditions imposed on the licence.

 

5.6     Term and validity of licence

 

 

          5.6.1  A trading licence remains valid until—

                   (a)      the expiry date stated in the licence is reached;

                   (b)     variations are made to the trading area or activities, including an increase, reduction or change in the approved trading area, unless the variations are made by the local government in accordance with subclause 2.4.4;

                   (c)      any public liability insurance policy required as a condition of the licence lapses, is cancelled or is no longer in operation; or

                   (d)     the licence is cancelled by the local government.

 

          5.6.2  If any of the events specified in subclause 5.6.1 occur, then a new application for a trading licence must be made and a new trading licence issued before any trading can be carried out.

 

5.7     Responsibilities of licensee

 

 

          5.7.1  The licensee must—

                   (a)      comply with the conditions of the trading licence;

                   (b)     where a stall is being used for trading:

                            (i)       display a sign indicating the name of the licensee and the licence number, with letters and numerals not less than 5 centimetres in height in a conspicuous place in the approved trading area;

                            (ii)      ensure that the approved trading area is attended either by the licensee or a person employed or engaged in the trading activity at all times when trading is being undertaken;

                            (iii)     keep the stall in a clean and safe condition and in good repair;

                            (iv)     keep the approved trading area free from refuse and rubbish;

                            (v)      remove any stall, goods, equipment and signs from the approved trading area and leave that location clean and vacant -

                                      A.      at the conclusion of the permitted hours of operation specified in the trading licence; and

                                      B.      whenever trading is not taking place; and

                   (c)      have the trading licence available at all times trading is being undertaken, for inspection at the request of any authorised person.

 

          5.7.2  The licensee must not—

                   (a)      permit any trading activity to extend beyond the approved trading area;

                   (b)     engage in or permit any trading in any goods or services other than those specified in the trading licence;

                   (c)      cause, permit or suffer any nuisance to exist, arise or continue on or from the approved trading area;

                   (d)     deposit, place or store any goods on any public place, other than within the trading area;

                   (e)      obstruct the free passage of pedestrians on any footpath or pedestrian accessway;

                   (f)      use or display or permit to be used or displayed any advertisement, placard, poster, streamer, sign or signboard on or about the approved trading area exceeding a total area of 0.5 square metres;

                   (g)     erect and maintain any signs in accordance with sub-clause (f) so as to obscure any other signage on or adjacent to the approved trading area;

                   (h)      cry out or shout about, or permit any other person to cry out or shout about, any goods or services in any public place or from the trading area, to the detriment of or causing a nuisance to nearby traders or persons undertaking commercial activities; or

                   (i)       use or permit to be used—

A.    any loud hailer, microphone, amplifier or other apparatus for making or transmitting sound, on or from the approved trading area, unless approved by the local government;

B.    any record, tape, radio, bell, musical instrument or other instrument or device capable of being heard beyond the boundaries of the approved trading area unless approved by the local government;

       C.    any flashing or intermittent lighting apparatus or device on or from the approved trading area; or

       D.    an apparatus or device including a flap or shelf whereby the dimensions of the stall are increased beyond the dimensions specified in the trading licence.

 

 

PART 6 - STREET ENTERTAINMENT

 

6.1     Street entertainment

 

          A person must not engage in street entertainment in a public place without a street entertainment licence, unless the street entertainment—

(a)   forms part of an event;

(b)   forms part of a market for which a licence has been granted by the local government under clause 4.4; or

(c)   is provided in accordance with an approval granted by the local government under another written law.

 

6.2     Limitations on street entertainment

 

 

          6.2.1  A street entertainment licence is not transferable.

 

6.2.2  The issue of a street entertainment licence does not give the licensee exclusive possession or use of the approved street entertainment area.

 

6.3     Licence application

 

 

6.3.1  An applicant for a street entertainment licence must comply with subclause 2.2.2.

 

6.3.2  An application for a street entertainment licence must be forwarded to the local government together with—

(a)   details of the nature of the proposed street entertainment;

(b)   details of any musical instrument or amplifier proposed to be used;

(c)   details of the number of people to be involved in the proposed street entertainment; and

(d)   any other information requested by the local government.

 

6.4     Street entertainment licence

 

          A street entertainment licence issued by the local government will include—

          (a)      a licence number;

          (b)      details of the location and equipment that can be used for the street entertainment;

          (c)      the days and permitted times for the street entertainment; and

          (d)      any other terms and conditions of the licence.

 

6.5     Term and validity of licence

 

 

          6.5.1  A street entertainment licence remains valid until—

         

                   (a)      the expiry time and date stated in the licence is reached;

                   (b)     any public liability insurance policy required as a condition of the licence lapses, is cancelled or is no longer in operation; or

                   (c)      the licence is cancelled by the local government.

 

6.5.2  If any of the events specified in subclause 6.5.1 occur, then a new application for street entertainment must be made and a new street entertainment licence issued before any street entertainment can take place.

 

6.6     Responsibilities of licensee

 

 

          6.6.1  The licensee of the street entertainment licence must—

 

(a)      comply with the conditions of the street entertainment licence;

(b)     not permit the street entertainment to extend beyond the specified portion of the public place approved in the street entertainment licence;

(c)  ensure that the conduct of street entertainment approved under the licence:

                            (i)     does not prevent or impede pedestrian flow or access to and along footpaths, entry or exit to shops and other buildings;

                            (ii)    does not prevent or impede vehicular flow or access to and along any thoroughfare or vehicular entry or exit to any shop or other building;

         (iii)   does not cause a nuisance to any other street entertainment or activity approved by the local government;

                             (iv)   unless otherwise approved, does not have more than 4 people participating in any one performance;

         (v)    unless otherwise approved, does not include any person under the age of 14 years -

                                    A.    during school hours, on school days;

                                    B.    between 7.00pm and 6.00am;

         

              (vi)   does not include, involve or permit—

A.    anything that is offensive or obscene;

B.    the use of fire;

C.    any weapon or object with sharp edges, including knives or swords;

D.    any motorised machinery that emits a loud noise in its operation or is not suitable in the location;

E.    any other activity, object or matter whatsoever that endangers the safety of the public or the performer; or

F.    cruelty to an animal;

                             (vii)  does not include any amplification unless specifically approved and endorsed on the street entertainment licence;

                            (viii) notwithstanding sub-clause (vii), does not include any amplification between Monday to Saturday, 10.00pm to 7.00am and Sundays between 10.00pm and 9.00am; and

                            (ix)   complies at all times with the Environmental Protection (Noise) Regulations 1997;

                   (d)   use the approved street entertainment area to perform during the days and times specified in the licence or vacate that area;

(e)   produce the street entertainment licence when requested to do so by an authorised person;

                   (f)    display—

(i)    a sign indicating the name of the licensee and the licence number with letters and numerals not less than 5 centimetres in height in a conspicuous place in the performance location; or

(ii)    standard business cards;

(g)   if the licensee is a performing pavement or visual artist, return the performance location, including the pavement surface, to its former condition on the completion of a performance; and

(h)   comply at all times with a direction of an authorised person.

 

          6.6.2  A licensee of a street entertainment licence must not—

 

          (a)      reserve or attempt to reserve a performance location within the approved street entertainment area or leave equipment at a location used for performances unless immediately before, during or after a performance;

          (b)      trade any goods or services without a licence issued for that purpose;

          (c)      erect or display, or permit to be erected or displayed, at or near the performance location any sign—

                   (i)       larger than 0.25 square metres in area, displaying the name of the performance; or

                   (ii)      standard business cards;

(d)      perform in any one location for more than 60 minutes, unless specifically authorised in the licence, unless the performance is by a pavement or visual artist; and

(e)      if the licensee is a performing pavement or visual artist, use spray paint, crayons, felt tip pens or other indelible materials unless working on paper or card.

 

6.7     Cancellation or variation of street entertainment licence

 

          Without limiting clause 2.7, the local government may cancel or vary the terms and conditions of a street entertainment licence in the event that—

          (a)      a complaint is received about a performance or the amenity of a performance location;

          (b)      an authorised person has concerns with the content or material used in the performance; or

          (c)      the licensee fails to meet any of the responsibilities detailed in clause 6.6.

 

 

PART 7 - SECURED SUM

 

7.1     Security for restoration and reinstatement

 

 

7.1.1  The local government may require the payment of a bond, bank guarantee or other form of security acceptable to the local government for the purpose of ensuring that a public area is repaired, restored or reinstated.

 

         

7.1.2  A bond, bank guarantee or other form of security payable in accordance with subclause 7.1.1 may be required—

              (a)      as a condition of a licence;

                   (b)     before the issue of a licence; or

                   (c)      before the renewal or transfer of an outdoor dining licence, market licence or trading licence.

 

          7.1.3  The local government will determine the amount payable as a bond, bank guarantee or other form of security payable in accordance with subclause 7.1.1.

 

          7.1.4  If a bond is paid under subclause 7.1.1, the local government must deposit the bond into an account established by the local government for the purpose of holding bonds or other forms of security.

 

7.2     Use by the local government of secured sum

 

 

          7.2.1  If a licensee fails to carry out or complete the restoration and reinstatement works required by the licence conditions or by a notice where the local government has given the licensee a notice requiring such works to be carried out ("the required restoration and reinstatement work")—

                   (a)      within the time specified in those conditions;

                   (b)          where no such time has been specified, within a reasonable period of time from the expiration of the licence;

                   (c)      within 14 days of being given a notice or such other time as may be specified in the notice,

                   then the local government may carry out or cause to be carried out the required restoration and reinstatement work or so much of that work that has not been completed.

 

          7.2.2  The licensee must pay to the local government on demand all administrative, legal, contractor and other costs actually incurred by the local government in carrying out and completing the required restoration and reinstatement work.

 

          7.2.3  The local government may apply the proceeds of any bond, bank guarantee or other security provided by the licensee under clause 7.1 to meet the costs referred to in subclause 7.2.2.

 

          7.2.4  The liability of a licensee to pay the costs referred to in subclause 7.2.2 is not limited to the amount, if any, secured under clause 7.1.

 

          7.2.5  A person or a licensee is not entitled to make any claim by way of damages or otherwise, against an authorised person, local government employee, local government appointed sub-contractor or other person authorised by the local government to enter the land and carry out all or part of the required restoration and reinstatement work.

 

 

PART 8 - MISCELLANEOUS

 

8.1     Directions of authorised person

 

 

8.1.1  An authorised person may direct a person to stop doing anything which the authorised person considers on reasonable grounds the person is in the process of doing, which is contrary to this local law or the condition of a licence issued under this local law.

 

8.1.2  A person who is given a lawful direction under subclause 8.1.1 must comply with that direction.

 

 

8.2     Notice requiring works to be done to remedy breach

 

 

          8.2.1  The local government may give notice to a licensee requiring the licensee—

 

          (a)      to rectify a breach of any condition or term of a licence or of a provision of this local law; or

(b)     to change the arrangement or operation of an approved area considered necessary to maintain public safety, facilitate public works to the public place or to protect the amenity of premises adjacent to an approved area;

 

          8.2.2  A notice issued by the local government under subclause 8.2.1 will—

(a)      outline—

(i)       details of the breach of the condition or term of the licence; 

(ii)      the provision of the local law; or

(iii)     of the change in arrangement or operation required;

(b)      require the licensee to remedy the breach or to change the arrangement or operation as required within the time specified in the notice; and

(c)      advise that where the licensee fails to comply with the requirements of the notice within the time specified, the local government may remedy the breach or change the arrangement or operation as required.

 

          8.2.3  Where the licensee fails to comply with the requirements of the notice within the time specified in the notice, the local government may by its employees, agents or contractors do all things necessary to remedy the breach of the condition or term of the licence or of the provision of this local law or to change the arrangement or operation which is required by the notice.

 

          8.2.4  The local government may recover the expenses incurred in doing the works referred to in subclause 8.2.3—

                   (a)      by deducting the expenses from the secured sum (if any), and where the secured sum is less than the expenses, the local government may recover the balance through a court of competent jurisdiction; or

(b)     from the licensee in a court of competent jurisdiction.

 

8.3     Notice to advise licensee of planned or emergency works

 

 

          8.3.1  The local government will give 14 days notice of any works to be undertaken by the local government, that will require closure, part closure or access to an approved area.

 

          8.3.2  Where the local government is to carry out emergency works in an approved area, the local government will give such a period of notice which it considers reasonable in the circumstances.

 

 

8.4     Works in public property

 

          Where an applicant or a licensee is required to obtain the local government's permission under regulation 17 of the Local Government (Uniform Local Provisions) Regulations 1996, any licence issued under this local law to the applicant or licensee will not be taken to be a grant of that permission.

 

8.5     Serving of notice

 

  Where a notice or other document is to be given to a person by the local government under this local law, it may be given to the person—

          (a)      by delivering it to the person personally;

         (b)      where the person is an applicant or a licensee, by posting it by prepaid post to or leaving it at the address appearing on the application for a licence or the licence; or

          (c)      where the person is not an applicant or a licensee, by posting it by prepaid post to or leaving it at the usual or the last known place of residence or business of the person.

 

8.6     Public liability insurance and indemnity

 

 

8.6.1  Where as a condition of a licence, the licensee is required to obtain public liability insurance, this public liability insurance must indemnify the local government against all actions, suits, claims, damages, losses and expenses made against or incurred by the local government arising from any activity, action or thing performed or erected under the licence.

         

8.6.2  The public liability insurance policy referred to in subclause 8.6.1 must be kept current for the duration of the licence and—

(a)   must be in the name of the licensee and the local government for a minimum value of $5,000,000 or such other amount as the local government considers appropriate to the risk involved; 

(b)   include a clause which prevents the policy from being cancelled without the written consent of the local government;

(c)   include a clause which requires both the licensee and the insurance company to advise the local government if the policy lapses, is cancelled or is no longer in operation; and

(d)   be available for inspection by an authorised person.

 

          8.6.3  A licensee who refuses or cannot provide a current certificate of insurance within 2 working days of a request under subclause 8.6.2(d) commits an offence.

 

 

PART 9- OFFENCES AND PENALTIES

 

9.1     Offences

 

 

          9.1.1  A person who fails to do anything required or directed to be done under this local law, or who does anything which under this local law that person is prohibited from doing without reasonable excuse, commits an offence.

 

          9.1.2  Whenever the local government gives a notice under this local law requiring a person to do anything, if the person fails to comply with the notice, the person commits an offence.

 

          9.1.3  A person who commits an offence under this local law will be liable, upon conviction, to a penalty not exceeding $5,000, and if the offence is of a continuing nature, to an additional penalty not exceeding $500 for each day or part of a day during which the offence has continued.

 

9.2     Prescribed offences and modified penalties

 

 

          9.2.1  An offence against a clause specified in Schedule 1 is a prescribed offence for the purposes of section 9.16(1) of the Act.

 

9.2.2  The amount appearing in the final column of the table in Schedule 1 directly opposite an offence described in Schedule 1 is the modified penalty for that offence.

 

9.2.3  If the offence is of a continuing nature, the modified penalty of $50 applies for the offences described in Schedule 1 for each day or part of a day during which the offence continues following the issue of an infringement notice for the amount calculated in accordance with subclause 9.2.2.

 


Schedule 1 - Prescribed offences and modified penalties

[cl 9.2]

 

Item No

Clause No

Nature of Offence

Modified Penalty $

PART 3 – OUTDOOR DINING

1

3.1

Establishing an outdoor dining area in a public place without an outdoor dining licence.

250

2

3.7.1(a)

Failing to comply with conditions of outdoor dining licence.

150

3

3.7.1(b)

Permitting operation of outdoor dining area to extend beyond approved area.

150

4

3.7.1(c)

Failing to manage outdoor dining area in accordance with approved management plan.

150

5

3.7.1(d)

Failing to keep licenced area free of any obstacle or matter likely to cause injury to persons or property.

150

6

3.7.1(e)

Failing to ensure furniture or equipment remains in approved outdoor dining area and does not impede pedestrian flow.

150

7

3.7.1(f)

Failing to repair damage to surface area, fixtures, fittings or utility services caused by operation of an outdoor dining area.

150

8

3.7.1(h)

Failing to ensure trading in outdoor dining area is limited to operating hours stated in licence.

150

9

3.7.2

Failing to remove all equipment, structures and other things and reinstate area to satisfaction of local government on cessation of licence and pay reinstatement costs.

150

Part 4 –MARKETS

10

4.1

Setting up or conducting market without licence

250

11

4.6.1(a)

Failing to comply with conditions of market licence

150

12

4.6.1(b)

Permitting operation of market area to extend beyond approved market area.

150

13

4.6.1(c)(i)

Failing to obtain approval from local government and Police to close public thoroughfare where market held during market times.

150

 

 

 

 

14

4.6.1(c)(ii)

Failing to make adequate refuse collection arrangements to satisfaction of local government.

150

15

4.6.1(c)(iii)A.

Failing to obtain approval under Health (Public Buildings) Regulations 1992 – Certificate of Approval.

150

16

4.6.1(c)(iii)B.

Failing to obtain approval under Health (Public Buildings) Regulations 1992 – Certificate of electrical compliance.

150

17

4.6.2(a)

Failing to maintain pedestrian access through and beyond approved market area.

150

18

4.6.2(b)

Failing to maintain access to adjacent building entries.

150

19

4.6.2(c)

Failing to retain access to existing or approved outdoor dining areas with adjacent building entries.

150

20

4.6.2(d)

Failing to maintain adequate access for emergency vehicles through any thoroughfare of the approved market area.

150

21

4.6.2(e)

Failing to stabilise all stalls and furniture and other equipment used in operation of market and remove same when not in use.

150

22

4.6.2(f)

Failing to maintain noise levels from music, announcements and the like so as not to cause a nuisance.

150

23

4.6.2(g)

Failing to maintain approved market area clean and free from rubbish.

150

24

4.6.3

Failing to remove all structures and equipment at conclusion of market.

150

PART 5 –TRADING

25

5.1

Trading without a licence.

250

26

5.7.1(a)

Failure to comply with conditions of trading licence.

150

27

5.7.1(b)(i)

Failing to display sign indicating licensee name and licence number.

100

28

5.7.1(b)(ii)

Failing to have approved trading area attended when trading.

100

29

5.7.1(b)(iii)

Failing to keep any stall in clean, safe condition and good repair.

150

30

5.7.1(b)(iv)

Failing to keep approved trading area free from refuse and rubbish.

150

31

5.7.1(b)(v)

A.

Failing to remove any stall, goods, equipment and signs and leave approved trading area clean at conclusion of operation hours.

150

32

 

5.7.1(b)(v)

B.

Failing to remove any stall, goods, equipment and signs and leave location vacant whenever trading is not taking place.

150

33

5.7.1(c)

Failing to have licence available at all operation times for inspection at the request of any authorised person.

100

 

 

 

 

34

5.7.2(a)

Trading beyond approved trading area.

150

35

5.7.2(b)

Trading in any goods or services not specified in the licence.

150

36

5.7.2(c)

Causing or permitting any nuisance to exist, arise, or continue from the approved trading area.

150

37

5.7.2(d)

Depositing, placing or storing any goods on any public place other than the approved trading area.

150

38

5.7.2(e)

Obstructing free passage of pedestrians on footpath or accessway.

150

39

5.7.2(f)

Using, displaying or permitting advertisement outside licence location, larger than approved size.

150

40

5.7.2(g)

Erecting and maintaining signs so as to obscure other signage on or adjacent to the approved trading area.

150

41

5.7.2(h)

Crying out or shouting about goods or services in public place.

150

42

5.7.2(i)A.

Using or permitting use of loud hailer, microphone, amplifier or other sound apparatus, on approved trading area without approval.

150

43

5.7.2(i)B.

Using or permitting use of any record, tape, radio or musical instrument capable of being heard outside approved trading area without approval.

150

44

5.7.2(i)C.

Using or permitting use of any flashing or intermittent lighting apparatus or device on or from approved trading area.

150

45

5.7.2(i)D.

Using or permitting use of any apparatus to increase dimensions of a stall beyond that specified in the licence.

150

PART 6 STREET ENTERTAINMENT

46

6.1

Engaging in street entertainment without a licence.

250

47

6.6.1(a)

Failing to comply with conditions of street entertainment licence

150

48

6.6.1(b)

Permitting street entertainment to extend beyond area approved as part of the licence.

100

49

6.6.1(c)(i)

Permitting the performance to impede pedestrian flow or access to and along footpaths, entry or exit to shops or other buildings.

150

50

6.6.1(c)(ii)

Permitting the performance to impede vehicular flow or access to and along any thoroughfare or vehicular entry or exit.

150

51

6.6.1(c)(iii)

Permitting the performance to cause a nuisance to any other street entertainment or activity approved by the local government.

150

52

6.6.1(c)(iv)

Having more than 4 people participating in any performance without approval.

150

53

6.6.1(c)(v)A.

Permitting the performance to include persons under 14 years of age, during school hours on a school day, without approval.

150

54

6.6.1(c)(v)B.

Permitting the performance to include persons under 14 years of age on school days between 7.00pm and 6.00am, without approval.

150

55

6.6.1(c)(vi)A.

Permitting the performance to involve anything that is offensive or obscene.

150

56

6.6.1(c)(vi)B.

Permitting the performance to involve the use of fire.

150

57

6.6.1(c)(vi)C.

Permitting the performance to involve any weapon or object with sharp edges, including knives or swords.

150

58

6.6.1(c)(vi)D.

Permitting the performance to involve any motorised machinery which emits a loud noise or is not suitable for the location.

150

59

6.6.1(c)(vi)E.

Permitting the performance to involve any activity, object or matter whatsoever that endangers the safety of the public or performer.

150

60

6.6.1(c)(vi)F.

Permitting the performance to involve cruelty to animals.

150

61

6.6.1(c)(vii)

Permitting the performance to include amplification without specific approval.

150

62

6.6.1(c)(viii)

Permitting the performance to include amplification outside permitted times.

150

63

6.6.1(d)

Failing to use the approved street entertainment area to perform during the days and times specified or vacate that area.

150

64

6.6.1(e)

Failing to produce the licence when requested by an authorised person.

100

65

6.6.1(f)(i)

Failing to display the name of the licensee and licence number during each performance.