VISION OF COUNCIL

 

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

 

 

AGENDA

 

 

 

FOR THE

 

Ordinary Meeting of Council

 

23 February 2017

 

 

"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.

 

 

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.]

 

 

 

SHIRE OF BROOME

Ordinary Meeting of Council

Thursday 23 February 2017

INDEX – Agenda

 

1.               Official Opening.. 8

2.               Attendance and Apologies. 8

3.               Declarations of Financial Interest / Impartiality. 8

4.               Public Question Time. 8

5.               Confirmation of Minutes. 9

6.               Announcements by President Without Discussion.. 9

7.               Petitions. 9

8.               Matters for Which the Meeting May Be Closed.. 9

9.               Reports of Officers. 10

9.1      Our People. 11

9.1.1     WASTE MANAGEMENT FACILITY - MULCHED GREEN WASTE. 12

9.1.2     CHINATOWN REVITALISATION PROJECT UPDATE. 16

9.2      Our Place. 135

9.2.1     DESIGN WA - SHIRE OF BROOME SUBMISSION.. 136

9.2.2     CIRCUS ROYALE EVENT APPLICATION.. 151

9.2.3     EVENT APPROVAL - FULL MOON BAREFOOT BALL. 160

9.2.4     DEVELOPMENT ASSESSMENT PANEL (DAP) NOMINATIONS OF MEMBERS AND ALTERNATE MEMBERS. 168

9.2.5     PROPOSED WELCOME TO COUNTRY SIGNS - GREAT NORTHERN HIGHWAY. 180

9.2.6     DRAFT POLICY FOLLOWING PUBLIC COMMENT PERIOD - CONSULTATION ABORIGINAL HERITAGE. 187

9.2.7     TRADING IN PUBLIC PLACES LICENCE APPLICATION - BROOME FAT BIKE TOURS. 217

9.2.8     GOVERNMENT SEWERAGE POLICY - SHIRE OF BROOME SUBMISSION.. 229

9.2.9     RFT 17/02 PROVISION OF CLEANING SERVICES FOR OPERATIONAL BUILDINGS. 239

9.3      Our Prosperity. 243

9.3.1     MOTORSPORT RELOCATION PROJECT LAND TENURE. 244

9.4      Our Organisation.. 250

9.4.1     MONTHLY PAYMENT LISTING - DECEMBER 2016. 251

9.4.2     MONTHLY PAYMENT LISTING - JANUARY 2017. 276

9.4.3     MONTHLY STATEMENT OF FINANCIAL ACTIVITY REPORT DECEMBER 2016. 300

9.4.4     MONTHLY STATEMENT OF FINANCIAL ACTIVITY REPORT JANUARY 2017. 422

9.4.5     ANNUAL ELECTORS MEETING HELD 15 DECEMBER 2016. 545

9.4.6     REVIEW OF DELEGATIONS OF AUTHORITY. 556

10.            Reports of Committees. 656

10.1      LOCAL EMERGENCY MANAGEMENT COMMITTEE MEETING MINUTES - 7 DECEMBER 2016. 657

10.2      BUSH FIRE ADVISORY COMMITTEE MEETING MINUTES - 7 DECEMBER 2016. 696

10.3      MINUTES OF THE AUDIT COMMITTEE MEETING HELD 14 FEBRUARY 2017. 726

11.            Notices of Motion.. 845

12.            Business of an Urgent Nature. 845

13.            Questions by Members Of Which Due Notice Has Been Given.. 845

14.            Matters Behind Closed Doors. 845

15.            Meeting Closure. 845

 

 

 

NOTICE OF MEETING

 

 

 

Dear Council Member,

 

 

The next Ordinary Meeting of the Shire of Broome will be held on Thursday, 23 February 2017 in the Council Chambers, Corner Weld and Haas Streets, Broome, commencing at 5.00pm.

 

 

 

Regards

 

 

S MASTROLEMBO

Acting Chief Executive Officer

 

16/02/2017

 

 

 

 

 

              Attendance:

 

              Leave of Absence:

 

A written request for a Leave of Absence for meetings of Council held in March and April 2017 has been received from Cr M Fairborn.

 

RECOMMENDATION: That a Leave of Absence be granted for Cr M Fairborn for meetings of Council held in March and April 2017.

 

              Apologies:              Cr B Rudeforth

 

              Officers:

 

              Public Gallery:

 

 

FINANCIAL INTEREST
Councillor	Item No	Item	Nature of Interest

 

IMPARTIALITY
Councillor	Item No	Item	Nature of Interest

 

 

The following question was asked at the Special Meeting of Council held 24 January 2017 by Ross Forbes-Stephen and was taken on notice:

 

Question One:

Why is the information contained in item 6.3.1 not available to the public? As a tourism business in Broome, this could be of benefit and impact to my business.

 

Answer provided by Acting Director Community Development:

The Shire of Broome received correspondence from Australia’s North West (ANW) dated 16 January 2017 regarding a proposal to trial flights between Broome and Singapore. The proposal has been developed by a consortium that included Broome International Airport, ANW and Tourism WA. The item and any attachments are confidential in accordance with Section 5.23(2) of the Local Government Act 1995 section 5.23(2)((e)(ii)) as it contains “a matter that if disclosed, would reveal information that has a commercial value to a person, where the information is held by, or is about, a person other than the local government”. 

 

 

Recommendation: That the Minutes of the Ordinary Meeting of Council held on 15 December 2016 be confirmed as a true and accurate record of that meeting.

 

Recommendation: That the Minutes of the Special Meeting of Council held on 24 January 2017 be confirmed as a true and accurate record of that meeting.

 

 

 

 

 

 

Under section 5.23 (2)(d) of the Local Government Act 1995 Council may resolve to move the meeting behind closed doors.

 

9.

Reports

of

Officers

 

9.1

 

Our People

 

 

 

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.

 

 

9.1.1      WASTE MANAGEMENT FACILITY - MULCHED GREEN WASTE LOCATION/ADDRESS:                            Nil APPLICANT:                                              Nil FILE:                                                           ACC01; RES 40813.9 AUTHOR:                                                   Waste Coordinator CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Director Infrastructure DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    3 February 2017

 

SUMMARY:         Mulched green waste is available for purchase from the Waste Management Facility at the rate of $10 per cubic metre. This report seeks to change the fee to a NIL charge for 2016/17.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 30 June 2016                            Item 9.4.3

 

COMMENT

 

The Shire of Broome receives raw green waste from Broome residents and businesses. The raw green waste is stockpiled and processed into mulched green waste. The mulched green waste is then made available for collection by residents and businesses.

 

In 2014/15 the Shire of Broome provided mulched green waste to residents and business free of charge. Throughout the financial year the Shire was able to maintain supply to residents however at certain stages was unable to maintain supply to businesses. This was due to an in increase in demand for mulched green waste caused by improved mulch quality and large commercial developments.

 

For 2016/17, in response to the higher demand the Shire introduced a fee of $10 per cubic metre for mulched green waste. The basis of the fee was to offset some of the operational expense incurred from receiving and processing the raw green waste, the introduced fee is not full cost recovery.

 

Since the implementation of the fee the demand for mulched green waste has decreased. Averages for 2015/16 versus 2016/17 are provided below for comparison;

 

Description	2015/16 Monthly Average (cubic metre)	2016/17 Monthly Average (cubic metre)
Mulched green waste  - produced	919	788
Mulched green waste demand - residential	160	137
Mulched green waste demand – commercial	759	74
Surplus to stockpile	-	577

 

As a result of the decreased demand the Shire has had to stockpile all surplus mulched green waste. The Shire currently has 3,400 cubic meters of mulched green waste and the stockpile area is nearing full capacity. Once the stockpile area reaches capacity the Shire are not licenced to stockpile raw green waste or mulched green waste in other areas. The only alternative at that point is for the Shire to landfill the surplus raw green waste.

 

Based on the reduced demand, current stockpile volumes and limited future stockpile capacity officers recommend that the Shire remove the $10 per cubic metre charge for mulched green waste. The removal of the fee will remove the financial burden on business to collect the mulched green waste and will potentially increase demand.

 

CONSULTATION

 

The Shire of Broome Waste Coordinator has contacted local businesses via telephone. The feedback received indicated that the demand will increase from businesses should the fee be removed.

 

STATUTORY ENVIRONMENT

 

Local Government Act 1995

 

6.16. Imposition of fees and charges

 

(1)     A local government may impose* and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service

charge is imposed.

* Absolute majority required.

(2)     A fee or charge may be imposed for the following —

(a)     providing the use of, or allowing admission to, any property or facility wholly or partly owned, controlled, managed or maintained by the local government;

(b)     supplying a service or carrying out work at the request of a person;

(c)     subject to section 5.94, providing information from local government records;

(d)     receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorisation or certificate;

(e)     supplying goods;

(f)      such other service as may be prescribed.

(3)     Fees and charges are to be imposed when adopting the annual budget but may be —

(a)     imposed* during a financial year; and

(b)     amended* from time to time during a financial year.

* Absolute majority required.

 

6.17. Setting level of fees and charges

 

(1)     In determining the amount of a fee or charge for a service or for goods a local government is required to take into consideration the following factors —

(a)     the cost to the local government of providing the service or goods;

(b)     the importance of the service or goods to the community; and

(c)     the price at which the service or goods could be provided by an

alternative provider.

(2)     A higher fee or charge or additional fee or charge may be imposed for an expedited service or supply of goods if it is requested that the service or goods be

provided urgently.

(3)     The basis for determining a fee or charge is not to be limited to the cost of providing the service or goods other than a service —

(a)     under section 5.96;

(b)     under section 6.16(2)(d); or

(c)     prescribed under section 6.16(2)(f), where the regulation prescribing the service also specifies that such a limit is to apply to the fee or charge for the service.

(4)     Regulations may —

(a)     prohibit the imposition of a fee or charge in prescribed circumstances; or

(b)     limit the amount of a fee or charge in prescribed circumstances.

 

6.19.  Local government to give notice of fees and charges

 

If a local government wishes to impose any fees or charges under this Subdivision after the annual budget has been adopted it must, before introducing the fees or charges, give local public notice of —

          (a)     its intention to do so; and

          (b)     the date from which it is proposed the fees or charges will be imposed.

 

POLICY IMPLICATIONS

 

Nil

 

FINANCIAL IMPLICATIONS

 

For 2016/17 to date the Shire has collected $5,180 for the sale of mulched green waste. The forecast income for the remainder of 2016/17 is a further $3,700.

 

RISK

 

The risk with removing the fee for mulched green waste is insignificant as the financial impact is less than $10,000.

 

Should the Shire not remove the fee for mulched green waste the stockpile area will reach capacity and the Shire will have to landfill raw green waste. This will contribute to faster utilisation of the landfill.

 

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

 

A healthy and safe environment

 

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:

 

Responsible resource allocation

 

Effective community engagement

 

Improved systems, processes and compliance

 

 

VOTING REQUIREMENTS

Absolute Majority

 

REPORT RECOMMENDATION: That Council: 1.       Amends the fee for the sale of per cubic metre, mulched green waste from $10 to nil; and 2.       Provides Local Public notice in accordance with Section 6.19 of the Local Government Act 1995 advising that these Fees and Charges will take effect on and from 1 March 2017. (Absolute Majority Required)

 

Attachments

Nil

 

9.1.2      CHINATOWN REVITALISATION PROJECT UPDATE LOCATION/ADDRESS:                            N/A APPLICANT:                                              Nil FILE:                                                           PLA94 AUTHOR:                                                   Acting Chief Executive Officer CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Acting Chief Executive Officer DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    9 February 2017

 

SUMMARY:         This report seeks to provide Council with an update on the progress made to date on the delivery of the Chinatown Revitalisation Project (CRP).  A copy of the minutes of the meetings held by the Chinatown Stakeholder Reference Group are also presented for Council’s information.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 26 June 2014                            Item 9.3.1

OMC 30 April 2015                             Item 9.2.7

OMC 2 June 2015                              Item 9.2.5

OMC 27 August 2015                        Item 9.3.1

OMC 26 November 2015                 Item 9.4.5

SMC 17 June 2016                             Item 6.2.1

OMC 25 August 2016                        Item 9.1.6

OMC 27 October 2016                     Item 10.2

OMC 15 December 2016                 Item 9.3.1

 

At the Special Meeting of Council held 17 June 2016, Council resolved the following;

 

COUNCIL RESOLUTION: (REPORT RECOMMENDATION) Moved: Cr B Rudeforth                                                      Seconded: Cr H Tracey That Council: 1.      Thanks the State of Western Australia for the $10 million grant funding for the Chinatown Revitalisation Project.  2.      Thanks Tourism Western Australia for confirmation for the Tourism Demand Driver Infrastructure Grant of $300,000 to be applied towards the Frederick Street/Dampier Terrace Lookout Facility, which forms part of the Chinatown Revitalisation Project.   3.      Endorses the Draft Financial Assistance Agreement with the Department of Regional Development and authorises the Shire President and Chief Executive Officer to engross the final documentation as required. 4.      Endorses the updated Memorandum of Understanding between the Shire of Broome, Landcorp and Kimberley Development Commission and authorises the Shire President and Chief Executive Officer to engross the documentation as required. 5.      Endorses the Chinatown Revitalisation Steering Group Terms of Reference and Governance structure and appoints the Chief Executive Officer to be the Shire’s representative on this group. 6.      Requests the Chief Executive Officer to:(a)    Allocate $1.7 million dollars over the 2016/17 and 2017/18 financial years to the          Chinatown Revitalisation Project. (b)   Commence procurement of the relevant consultancies together with the project collaborative group in line with the project documentation. (c)   Ensure incentives are included within project tender specifications to encourage submissions from and/or involvement of local businesses where appropriate. (d)   Provide six monthly updates on the project for Council’s information.    CARRIED UNANIMOUSLY 7/0

 

In accordance with point 6(d), this report provides Council with a six monthly update on the Chinatown Revitalisation Project (CRP). 

 

As background, the Financial Assistance Agreement (FAA) between the WA Department of Regional Development (DRD) and the Shire of Broome provides an investment of $10 million by the State for the delivery of the following projects.  The Shire of Broome and Tourism WA have also allocated a further $2 million and $600k respectively, resulting in a total project spend of $12.6 million. 

 

Item of Expenditure	Budget	Source of Funds
Grey Street Extension Feasibility & Technical Studies	$1,000,000	Royalties for Regions ($745,000) Shire of Broome ($255,000)
Roebuck Bay Reconnection and Coastal Protection Feasibility	$1,000,000	Royalties for Regions ($855,000) Shire of Broome ($145,000)
Cultural Centre Feasibility	$750,000	Royalties for Regions
Dampier Terrace Renovation	$3,800,000	Royalties for Regions
Carnarvon Street Upgrades	$2,725,000	Royalties for Regions
Frederick Street Lookout	$900,000	Shire of Broome ($600,000) Tourism WA ($300,000)
Tourist Rest Facilities	$700,000	Shire of Broome
Connection of Dampier Terrace and Terrace Street	$600,000	Shire of Broome ($300,000) Tourism WA ($300,000)
Enhanced laneways strategy and funding program	$290,000	Royalties for Regions
Chinatown Commercial Liaison Officer (over 2 years) and funding program	$600,000	Royalties for Regions
Administration/Audits/Reporting	$235,000	Royalties for Regions
Total Budget	$12,600,000

 

Following the engrossing of the FAA (Attachment 1), an amount of $10 million was deposited into the Shire’s account. These funds were then deposited into a Western Australian Treasury Corporation Account and are transferred across in agreed lump sums upon successful achievement of project milestones set out in the agreement.

 

The aforementioned projects have been scheduled across two years and the first of these milestones was the signing and return of the FAA which triggered a milestone payment of $500,000.

 

In accordance with the adopted Business Case and the FAA, the first items of expenditure incurred in 2016/17 were the recruitment of a Chinatown Investment and Development Coordinator and the engagement of a Project Director consultancy.

 

The Chinatown Investment and Development Coordinator commenced employment on 31 October 2016.  The key responsibilities of the role include;

·     Develop a two year Activity Plan outlining a program of activities and events for the activation of Chinatown.

·     Maintain effective and co-operative communications with traders, land owners and other key stakeholders in Chinatown.

·     Provide a central point of communication for consultants engaged to undertake, manage and/or facilitate sub-projects.

·     Develop strategies to encourage commercial tenant attraction and engagement, and facilitate and realise investment in Chinatown.

·     Project manage/coordinate activation events, small capital projects and promotional activities in Chinatown.

·     Facilitate an ongoing programme of events, place activation and branding for Chinatown.

Over the last few months the Chinatown Investment and Development Coordinator has contacted 114 traders/stakeholders, held 86 ‘drop in’ meetings, had 60 phone call conversations and sent 96 emails.  A Chinatown Traders meeting was also held on 8 February 2016 to present an overview of the draft Activity Plan and workshop activation initiatives with over 30 traders attending.

 

The Project Director, Devman, was engaged by LandCorp on 5 October 2016 in accordance with the Procurement Plan for the Chinatown Revitalisation Project.  This Project Management Consultancy firm will lead a team of specialist consultants to deliver the feasibility studies and/or design and construction projects detailed in the Chinatown Revitalisation Business Case.

 

Further to this, the Communications and Engagement consultancy team were also engaged by LandCorp on 12 September 2016.  This was awarded to the partnership of RFF Australia and the Broome Chamber of Commerce and Industry.  The role of this consultancy is to manage all external communications for the suite of projects forming part of the CRP and manage community and stakeholder engagement for the feasibility projects, with the exception of the Cultural and Interpretive Centre.

 

The second milestone date was 31 December 2016 and required the submission of finalised project plans for all ten sub-projects and the completion of the Chinatown Investment and Development Coordinator Two Year Activity Plan.  These milestone requirements have been met and further funds of $1.3 million have been released and form part of the 2^nd Quarter Finance and Costing Review considerations.  The Activity Plan is currently under review and amendment following feedback from members of the Project Control Group.  The draft document is attached (Attachment 2) for Council’s information.  In brief the plan outlines the following:

 

·    framework for staff operations and workload

·    outline preliminary activation initiatives

·    schedule for implementation of activation initiatives

·    matched funding opportunities

 

Further, at the Ordinary Meeting of Council held on 25 August 2016, Council resolved the following:

 

COUNCIL RESOLUTION: (REVISED REPORT RECOMMENDATION)   Moved: Cr C Mitchell                                                   Seconded: Cr H Tracey   That Council: 1.       Delegates authority to the Chief Executive Officer to make decisions and execute documents on behalf of the Shire in relation to the Chinatown Revitalisation Project in accordance with; (a)    Sections 5.42 and 9.49A (4) of the Local Government Act 1995; (b)    The Funding Assistance Agreement with the Department of Regional Development; (c)    The MOU with Kimberley Development Commission and Landcorp; and (d)    The approved Governance Structure for the project.   2.       Notes the intended establishment of a Cultural Centre Working Group and its proposed membership and endorses the decision to invite the Chief Executive Officer of Nyamba Buru Yawuru to chair the working group.   3.       Notes that the goal of the working group is to develop a concept with a sound business case for the development of an iconic cultural centre that is a major new attraction for visitors and locals alike, presenting the full diversity and depth of all Broome’s and the region’s history, art and culture.   4.       Requests the Chief Executive Officer to; (a)    draft Terms of Reference for the Working Group that reflects the above purpose in consultation with the members of the Chinatown Steering Group for Council’s consideration and endorsement at the September Ordinary Meeting of Council; and b)      include a representative of the WA Museum in the Terms of Reference for the Working Group.   5.       Notes the resignation of Anthea Demin as a Community Representative on the Chinatown Stakeholder and Community Reference Group and thanks her for her contribution to date.   6.       Requests the Chief Executive Officer to advertise publicly for expressions of interest to          fill the vacancy on the Chinatown Stakeholder and Community Reference Group for          Council’s consideration.   CARRIED UNANIMOUSLY BY ABSOLUTE MAJORITY 8/0

Sub-Project 3 of the CRP is the Feasibility and Design of a Cultural and Interpretive Centre. This project will comprise community and stakeholder engagement, site services investigation, planning, tenure and detailed analysis of the capital, operational and governance requirements for a Broome Cultural and Interpretive Centre. The final task will be to undertake a detailed design and finalise architectural plans and site selection.

 

The Cultural and Interpretive Centre Working Group has met on three occasions and includes the following membership:

·        Chief Executive Officer – Nyamba  Buru Yawuru (Chair)

·        Chief Executive Officer – Shire of Brome

·        Chief Executive Officer – Kimberley Development Commission

·        Regional Manager Northern and Goldfields Regions– LandCorp

·        Director Destination Development and Projects – Tourism WA

·        Nominee of WA Museum

·       Other members as appointed by the Chinatown Steering Committee

At this point the Group has undertaken a preliminary visioning exercise in preparation for the engagement of the key consultant on this project.

 

At the Ordinary Meeting of Council held on 15 December 2016, the following was resolved in regards to Cultural and Interpretative Centre sub-project:

 

COUNCIL RESOLUTION: (REPORT RECOMMENDATION) Moved: Cr C Mitchell                                                   Seconded: Cr H Tracey That Council: 1.       Endorse the Cultural and Interpretive Centre Working Group Terms of Reference as attached to this report; 2.       Accept the Tourism WA TDDI funding of $100,000 and match it against the existing Cultural and Interpretive Centre Feasibility Project funding by the Department of Regional Development; and 3.       Approves the Tourism WA TDDI Grant Agreement and authorises the Chief Executive Officer to engross all documentation as required.   CARRIED UNANIMOUSLY 7/0

 

COMMENT

 

During consideration of the governance structure for the CRP, the following structure was endorsed:

 

 

The Chinatown Stakeholder and Community Reference Group was established at the Ordinary Meeting of Council held 27 August 2015.  The first meeting of the Group was held on 4 March 2016 and meetings have occurred for the most part on a monthly basis since then.  A copy of the minutes from each meeting held to date are attached (Attachment 3) to this item and provided for Council’s information. 

 

The Terms of Reference state that the purpose of the Chinatown Stakeholder and Community Reference Group is to:

1. Provide input and feedback to the Project Control Group and Council on the Revitalisation of Chinatown.

2. Ensure the community and key stakeholders are appropriately engaged in the design and delivery of projects as part of the Chinatown Revitalisation.

3. Act as a conduit between the Project Working Group and the community and traders and landowners in Chinatown.

 

In brief the Group has been presented the following information and/or deliberated on the following initiatives:

 

·    Provided details and updates on the Business Case and progress through Cabinet

·    Provided project information and updates

·    Considered short-term wins

·    Reviewed the taxi rank location

·    Reviewed parking restrictions and availability

·    Proposed a Dampier Tce Alfresco Dining Trial

·    Presented a Chinatown Entry Statement Proposal

·    Provided information on a Chinatown Style Guide

·    Considered the deteriorating DMcD Pearl Lugger

·    Considered Wi-fi opportunities

·    Considered Marina proposal

·    Presented Governance Structure for delivery of the CRP

·    Provided updates from the Project Control Group

·    Considered progress of the Chinatown Christmas Party

·    Presentations from the Communications consultant

·    Considered opportunities for Streeters Jetty to become a functional facility

·    Presentation received from the Chinatown Investment and Development Coordinator

 

With the appointment of key consultancies expected by the end of February 2017, it is envisaged this group will have a key role to play in the formulation of streetscape plans and place making initiatives.

 

A high level project plan forms Attachment 4 to this report for Council’s information.  This indicates the feasibility projects are currently within the ‘Preliminary Analysis and Fatal Flaws’ stage, with the Design and Delivery Projects in the ‘Site Investigation’ stage.  Council will continue to be informed of progress on the CRP through monthly briefing updates and six-monthly formal reports.

 

CONSULTATION

 

Kimberley Development Commission

Landcorp

Yawuru

Chinatown Stakeholder and Reference Group

Chinatown Investment and Development Coordinator

 

STATUTORY ENVIRONMENT

 

Nil

 

POLICY IMPLICATIONS

 

Nil

 

FINANCIAL IMPLICATIONS

 

At the SMC held on 17 June 2016, Council resolved to:

(a)    Allocate $1.7 million dollars over the 2016/17 and 2017/18 financial years to the          Chinatown Revitalisation Project.

 

The Terms of Reference for the Steering Group includes responsibility;

-     To approve and manage the release of funds in accordance with agreed budget, process, timelines and milestones within each project and within standard government accountability guidelines;

 

It should be noted that any budget amendments required to reflect the terms of the Funding Assistance Agreement entered into with the Department of Regional Development will be brought to Council for approval via the quarterly Financial and Costing Review process.

 

RISK

 

The Governance Agreement and Terms of Reference for the CRP have been developed with high regard for the risks associated with the project as outlined in the report considered by Council at the SMC held 17 June 2016. 

 

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

 

Accessible and safe community spaces

 

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

 

A preserved, unique and significant historical and cultural heritage of Broome

 

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:

 

Sustainable and integrated strategic and operational plans

 

Responsible resource allocation

 

Effective community engagement

 

Improved systems, processes and compliance

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council: 1.       Notes the progress achieved to date in the delivery of the Chinatown Revitalisation Project as outlined in this report; 2.       Notes the minutes of the Chinatown Stakeholder and Reference Group meetings as attached; and 3.       Notes the Draft Chinatown Investment and Development Coordinator’s Two Year Activity Plan.

 

Attachments

1.	Financial Assistance Agreement
2.	CIDC 2 Year Activity Plan
3.	CSRG Meeting Minutes
4.	High Level CRP Project Plan

  

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

 

 

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Item 9.1.2 - CHINATOWN REVITALISATION PROJECT UPDATE

 

 

 

 

9.2

 

Our Place

 

 

 

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.

 

9.2.1      DESIGN WA - SHIRE OF BROOME SUBMISSION LOCATION/ADDRESS:                            Nil APPLICANT:                                              Nil FILE:                                                           PLA01 AUTHOR:                                                   Manager Planning & Building Services CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Director Development Services DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    22 December 2016

 

SUMMARY:         The Western Australian Planning Commission (WAPC) has released a package of documents for public comment as a part of the Design WA planning reforms. This report includes a review of the proposed changes as a part of the Design WA reforms and recommends that Council make a formal submission.

 

 

BACKGROUND

 

Previous Considerations

 

Nil

 

In August 2014, the WAPC released Planning Makes it Happen - Phase 2 Blueprint for Planning Reform. The blueprint included a number of initiatives relating to design and development with the intention of improving built form and place design outcomes. These initiatives included:

 

•   State Planning Policy for Design of the Built Environment

•   Apartment Design

•   Model for Design Review

•   Design Skills Discussion Paper

•   Implementation and training program

 

The Department of Planning, on behalf of the WAPC, has progressed with the above reforms (collectively referenced ‘Design WA’) and in late 2016 released the following documents for public comment:

 

·    Draft State Planning Policy 7: Design of the Built Environment;

·    Draft Apartment Design Policy;

·    Draft Design Review Guide; and

·    Draft Design Skills Discussion Paper.

 

The public comment period closed on the 20 December 2016, however the Department has granted an extension to the end of February 2017 to enable sufficient time for the industry to make submissions.

 

Copies of each of the above documents, together with a brochure providing an overview of the process can be accessed from the following link: https://www.planning.wa.gov.au/publications/DesignWA.asp.

 

COMMENT

 

The planning documents that form part of the Design WA process do have the potential to impact upon development and assessment processes in the Shire of Broome. An overview of each document and potential implications is provided below.

 

Draft State Planning Policy 7: Design of the Built Environment (SPP 7)

 

SPP 7 is a new State Planning Policy which will apply to the whole built environment and is intended to be the lead policy of the Design WA reforms.

 

SPP 7 will be used as the basis for developing new policies and will apply to all levels of the planning hierarchy - structure planning, subdivision, major public works and development applications. Section 6 of the policy details the measures and establishes the following:

 

·    Design Principles – 10 principles of good design have been established with the intent of providing a consistent framework to guide the design, review and decision making processes for planning proposals.

 

·    Design Review – this measure outlines that design review is an important component of the design process, particularly to negotiate the design elements of complex proposals. This section sets out that State, local government and/or precinct authorities are required to establish and operate design review processes to review applications of certain thresholds set out the in the WAPC Design Review Guide.

 

·    Design Skills – this measure establishes that using skilled and competent designers for planning proposals is an important component to achieve quality design outcomes. It is intended that amendments are made to the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations) which will require that applications meeting a certain threshold (yet to be determined) will have to be prepared by a pre-qualified designer/architect. Every application meeting the thresholds will need to be accompanied by information that:

a.   verifies the person who has designed, or directed the design or development; and

b.   provides an explanation of how the proposal addresses the 10 design principles and reference how the design objectives, criteria and guidelines under an applicable SPP (i.e. the R-Codes or the proposed Apartment Design Policy) have been achieved.

 

While the Design Principles aspect of the SPP 7 will be capable of being implemented in isolation of other changes, the Design Review and Design Skills measures of the SPP will require amendments to the Regulations and other changes which are foreshadowed in the draft Design Review Guide and draft Design Skills Discussion Paper, which are further outlined below.

 

Overall the intent of the SPP to establish design principles is supported. Concern is raised with the Design Review measure in SPP 7, in that local governments are required to establish and operate a design review process. This is considered administratively onerous and may impose unnecessary financial burden on local governments and applicants. This is further discussed in relation to the Design Review Guide below.

 

It is therefore recommended that the Shire submit that it supports the general intent of SPP 7, however does not support the Design Review measure contained in the SPP. It is also recommended that the WAPC provide clarification on how the Policy will apply to Public Works proposals, given that they are exempt from the need to obtain development approval.  A copy of the draft submission is provided in Attachment 1.

 

Draft Apartment Design Policy (Design Policy)

 

This policy has been developed to establish the standards which apartments and mixed-use developments are to be assessed against and is intended to replace the section in the Residential Design Codes (R-Codes) for multiple dwellings (currently Part 6 of the R-Codes).

                           

The WAPC has outlined that the Design Policy is different in its approach to the current R-Codes, in that it has moved away from prescriptive controls to performance based controls which offer greater flexibility and promote positive development outcomes, rather than simply defending against negative impacts. The Design Policy represents a performance based structure by establishing Objectives and Design Guidance complemented by specific, measurable standards known as Design Criteria (which will define where an objective has been achieved) where appropriate.

 

The majority of the residential development that occurs in Broome is in the form of single or grouped dwellings and this Policy will not have any impact upon this type of development. The Design Policy would only apply to multiple dwellings (where one dwelling is built on top of another, also known as apartments) in areas coded R40 or higher, and therefore is only applicable in limited areas in Broome North, Six Seasons, Roebuck Estate, some areas in Old Broome, in the Town Centre (principally Chinatown) and Mixed Use zoned areas.

 

The Design Policy is structured into four parts:

 

1.   Introduction - provides an overview of the Design Policy and description of how the objectives are achieved.

 

2.   Primary controls - contains controls regarding the form and scale of new development which is directly tied to the applicable R-Code density. These controls establish standards with regard to building height, street setbacks, side and rear setbacks, plot ratio, building depth and building separation. 

 

This section will operate in a similar fashion to the R-Codes, in that these controls are prescriptive and are established in a Tables. The Design Policy does not provide discretion to local government to vary these controls through the development assessment process, and while the Design Policy does allow for local governments to adopt variations, it is uncertain as to how this is to occur (i.e. whether it can be through a Local Planning Policy or requires an amendment to the Local Planning Scheme). Officers have concerns in relation to the inclusion of setbacks as a Primary Control without scope to vary this in the development assessment process, as is currently provided for under the R-Codes. These issues are raised in the submission as set out in Attachment 1.

 

Building height is also proposed to be included as a Primary Control. Currently under the R-Codes for the R40 density, a 6m maximum wall height and 9m roof height applies. Under the Design Policy, a building height limit of 3 storeys is proposed at the R40 density, with the heights increasing as the density increases. The submission expresses some concern with measuring building height in stories, however no objections are raised to increasing the height of buildings (note, the provisions of the Shire’s Local Planning Scheme will prevail over the Primary Controls to the extent of any inconsistency). If building heights are sought to be reviewed by the Shire in the future this would still be possible under the Design Policy, however an increase in densities would be required in conjunction with this.

 

3.   Siting the building – addresses the concept design of apartment projects, including analysing and responding to the site context, interface with neighbours and the public domain, and measures to achieve quality open spaces and maximise residential amenity.

 

This section contains design criteria that must be addressed in apartment developments that are currently in the R-Codes, such as privacy and parking. Additional design considerations have been incorporated which relate specifically to apartment design, and include the need for bicycle parking, guidance for basement level parking areas, and more emphasis on site and context design (will require designers of apartments to provide a site analysis to show how the proposal would integrate into the local urban context). To assist in the preparation of applications, visual examples of the type of information and step-by-step examples of how to address site analysis and design response are provided.

 

While this section does contain additional design criteria that is to be addressed compared to what currently exists under the R-Codes, this is considered appropriate to guide this type of development. The introduction of these design criteria will achieve improved built form outcomes, which is particularly important if in the future Broome seeks to increase building densities and building height. Further, numerous visual and design concepts are provided under this section to show what are considered good outcomes.  Overall, the approach of having Objectives, Design Criteria and Design Guidance is considered to achieve the balance of providing certainty to developers and landowners in the area, whist still allowing flexibility for site responsive design.

 

4.   Designing the building – informs the design development of apartment projects, including building form, layout, functionality, landscape design, environmental performance and residential amenity.

 

This section introduces design considerations that are to be addressed so that apartment design is functional for the future occupants. It does this through introducing the following elements:

 

·    Solar and day light access;

·    Natural ventilation;

·    Ceiling heights;

·    Apartment size and layout;

·    Private open space and balconies;

·    Circulation and common spaces;

·    Storage;

·    Acoustic privacy;

·    Noise and pollution;

·    Apartment mix;

·    Ground floor apartments;

·    Facades;

·    Roof design;

·    Landscape design;

·    Planting on structures;

·    Universal design;

·    Adaptive reuse;

·    Mixed use;

·    Awning and signage;

·    Energy efficiency;

·    Water management and conservation;

·    Waste management; and

·    Building maintenance.

 

With the exception of private open space and balconies, storage, apartment mix and waste management, the above are new design elements that need to be considered/addressed that are not currently contained in the R-Codes. While it is noted that this seems like a large number of elements to be addressed in designing apartments, they are practical consideration to ensure that apartment design is appropriate for future occupants. Further, the above design elements generally have design guidance only, rather than establishing design criteria. Some of the design elements mentioned above are also addressed under the National Construction Code (NCC) and assessed at the Building Application stage. The design elements proposed to be incorporated in to the Design Policy will focus more on liveability and achieving positive design outcomes, rather than the NCC which establishes minimum standards and focuses more on function.

 

5.   Appendices – includes checklists for information required at different stages in the planning process. These checklist will assist applicants when lodging applications to compile information that demonstrates that the design elements have been addressed.

 

Overall, the Design Policy is considered appropriate for apartment design and also to ensure that when designing apartments, practical considerations impacting on the liveability for the future occupants are taken into account. While this Policy is more detailed than the R-Codes in terms of design elements that need to be addressed, given that this Policy will guide apartment developments (which are more complex than standard residential developments), it is considered appropriate. As such it is recommended that Council submit that it supports the Design Policy. The submission identifies some points of clarifications or recommendations to make the Policy more useable, and these are detailed in Attachment 1.

 

Draft Design Review Guide

 

The draft Design Review Guide provides guidance for local governments in establishing and operating design review processes (referred to as a design review panel), which will become a requirement under the new SPP.

 

A design review is a process of evaluating the design quality of a proposal and is to be carried out by a panel of appropriately-trained, multi-disciplinary built environment experts, who are experienced in offering objective and constructive design advice. The Guide provides an overview of how to establish a design review process and recommends that it is undertaken at the following stages:

 

·    Concept design – undertaken early in the concept design, when the proposal is still flexible and can easily respond to advice given;

·    Design development – when design has progressed beyond concept, generally prior to the submission of a development application, to allow for modifications prior to formal submission.

·    Building permit – after development approval it is suggested that a check of the plans is undertaken by a delegate of the design review panel to ensure that the building permit is consistent with the approved development application.

 

The Guide outlines that the panel membership should be a pool of around seven members from which a sitting panel of four members is drawn from each review (3 members to reach a quorum). The members should have expertise in architecture, landscape architecture and urban design, however membership can also extend to the planning, heritage, transport planning and civil and structural engineering professions. The Guide establishes that for the panel to be independent and apolitical, decision-makers, elected members and local government staff should not be appointed as panel members (however local government planning staff should participate in all design reviews). Further, one of the ‘best-practice principles’ of the panels is independence which is where panel members are unconnected with the proposal’s promoters and decision makers and conflicts of interest should not arise.

 

Procedures are recommended in the Guide to address matters such as quorums and attendance; panel member preparation; agendas; meeting formats; reporting; etc. All of these processes would need to be refined and then coordinated by the local government.

 

In terms of funding and remuneration, the Guide establishes that local governments are responsible for the funding and remuneration of design review panels and outlines that three different funding models are under consideration:

 

·    Local government appropriated funds – promoted as proponents may be more likely to seek design review earlier in the design process;

·    Proponent funded – a set fee, or development application fee, committing applicants to a minimum number of reviews which may encourage proponents to seek design review earlier in the design process;

·    A balance of local government appropriated funding and proponent fee – local governments could offer a set number of design reviews under appropriated funding, with extra reviews paid for by the proponent.

 

It is proposed that only those applications which meet the following thresholds would need to undergo the design review process:

 

·    Commercial developments DAP threshold (over $10 million in estimated development value);

·    Apartment development DAP threshold (over $10 million in estimated development value);

·    Apartment development equal to or greater than 10 dwellings; and

·    Activity centre plans and structure plans. 

 

Examples of developments in Broome that would meet these types of thresholds would include resort developments over $10 million in value, the Shiba Lane apartments, the multiple dwelling development at 25 Dalmatio Street (Broome North) and all the structure plans prepared.

 

Overall, while the theory of having design review panels is considered positive, requiring that all local governments have such a process will introduce significant administrative burden and costs. In Broome’s context, based on the thresholds proposed, only a small portion of developments would need to be considered by a design review panel, yet the administrative burden to establish and maintain the panel would be high. Further, while it is noted that early discussion in the concept and design phase with proponents and local governments can result in improved outcomes and time savings (which is a practice already promoted by the Shire), the introduction of a panel will result in additional costs and administrative burden on both the local government and applicants, which is considered unnecessary, particularly in Broome’s case when only a small amount of developments would be captured.

 

While such a panel may be able to operate in a larger metropolitan context (where there is a pool of potential multi-disciplinary panel members) in the case of Broome, while there are a number of high-quality practitioners that would meet the panel member criteria, they may have a conflict, as they may be acting on behalf of the applicant or quoted on the project. The requirement for the panel to be ‘independent’ in Broome’s case is likely to increase the cost of administering a panel as panel members may have to be sourced from outside of Broome.

 

Also, while it is understood that the panel’s role is to provide design feedback and recommendations, the Guide does not address how the recommendations are to be dealt with, i.e. whether the applicant has to amend the design to address recommendations raised or provide a justification for why the recommendation cannot be accommodated. Further, the role of the design review panel is in conflict with the planning assessment process, where considerations are limited to the proposal put forward, not whether an alternative design would be better.

 

It is therefore recommended that Council submit that while the Design Review process is considered to have merit, the need to have a panel is considered administratively onerous and should not be a requirement under the State Planning Policy, rather it should be at the discretion of each local government to opt to have a design review panel or not. Further, the improvements overall to design outcomes that will be achieved through the introduction of the other elements of the new SPP mean there is less justification for the need for a Design Review Panel.  

 

Draft Design Skills Discussion Paper

 

This discussion paper presents options on possible policy or legislative changes to require development that meets certain thresholds must be designed or accredited by a qualified registered architect or other licensed design professional. In preparing this discussion paper, the Department has engaged with representatives from the Australian Institute of Architects, Buildings Designers Association of WA and the Property Council of Australia.

 

The discussion paper foreshadows the following options:

 

·    Option one – threshold based regulations

 

This approach proposes that developments meeting certain thresholds are required to be prepared or certified by a registered architect prior to the lodgement of a development application. This option and introduction of specified thresholds are likely to require amendments to the Planning and Development Act 2005, the Regulations and the draft SPP 7.

 

The thresholds to capture what type of development would need to be prepared by an architect could either be based on building type (i.e a development containing 10 or more dwellings or reaching a height of 3 or more storeys) or based on the estimated development value (such as the DAP thresholds).

 

·    Option two – competency standards

 

This would see the introduction of performance-based requirement for design skills and developments would then need to be prepared by a person accredited as meeting the competency standards. A similar example is the accreditation of bushfire practitioners by the Fire Protection Association of Australia for the purpose of meeting the requirements of recently implemented bushfire risk management requirements.

 

·    Option three – no regulation

 

In accordance with this option, anyone may prepare and lodge plans as part of a development application for projects of any scale, as is currently the case. The development application would then be assessed on its merits against the requirements of

SPP7 and the Apartment Design Policy.

 

With regard to the options above, it is recommended that the Shire submit if the State is going to introduce design skills standards then the first option of threshold based regulation should be used. This is considered a more appropriate response as Architects are already required to be registered under the provisions of the Architects Act 2004. If this type of skills standard is going to be introduced, it is important that the thresholds for applications are determined appropriately based on the type of development which is being designed. In this regard, the DAP thresholds could be used as a threshold.  Note that recent amendments to the DAP Regulations have excluded warehouse development meaning that this type of proposal could still be prepared by a building designer who is not a registered architect.

 

Summary

 

Overall, while there are some elements of the Design Review process that need to be clarified, the new documents are generally considered positive and it is recommended that the Shire submits its support of the proposal. This support however, does not extend to the requirement in the SPP for local government to run a design review process. A copy of the proposed draft submission is set out in Attachment 1.

 

CONSULTATION

 

Nil.

 

STATUTORY ENVIRONMENT

 

Planning and Development Act 2005

 

POLICY IMPLICATIONS

 

Nil.

 

FINANCIAL IMPLICATIONS

 

The potential introduction of Design Review Panels which is proposed in the SPP could have financial implications for the Shire of Broome.

 

The establishment of a Design Review Panel as recommended in the Design Review Guide would place significant administrative burden on the Shire. Further, the Shire would have to pay for the services of the expert members selected to sit on the panel. The Guide outlines that based on a survey of existing panels, operating costs vary from $12,000 to $120,000 per annum (note this does not include administrative costs in setting up the panel, selecting the panel members, training of members, minutes and agenda, meeting room, travel costs, etc).

 

RISK

 

Nil.

 

STRATEGIC IMPLICATIONS  

 

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

 

Affordable services and initiatives to satisfy community need

 

Accessible and safe community spaces

 

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:

 

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

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council endorses the submission on the Design Review WA documents as set out in Attachment No 1 and requests the Chief Executive Officer to forward the submission to the Western Australian Planning Commission.

 

Attachments

1.	Draft Submission

  

Item 9.2.1 - DESIGN WA - SHIRE OF BROOME SUBMISSION

 

 

STATE PLANNING POLICY 7: DESIGN OF THE BUILDING ENVIRONMENT

Section / Clause	Officer Comments	Recommendation
General Comment	The Shire supports the intent of State Planning Policy (SPP) and welcomes the investment the WAPC has made to seek to improve built form and place design outcomes through the Design WA reforms.   This support does not extend to the design review process under part 6 of the SPP. While the Shire acknowledges that such a process may have merit in other local government authorities, requiring a design review process to be implemented through a SPP is considered inappropriate and it should be left to each local government’s discretion to have a design review process or not.
4 – Application of Policy   This policy and complementary State Planning Policies, including their objectives, criteria and guidance (where relevant) apply to the design, review and assessment of: ·    Activity Centre Plans ·    Structure Plans ·    Local Development Plans ·    Subdivision ·    Residential development (including residential components of mixed use development) ·    Institutional development ·    Public works	Given that Public Works are exempt from the need to obtain development approval, clarification is sought on how this Policy is to guide the preparation of Public Works proposals.	Clarification is provided whether the Policy will apply to Public Work proposal.
6 – Measures   Design Review   Design review is an important component of the design process; particularly to negotiate the design elements of complex proposals. The process is scalable and may include design review by one or a number of experts (panel).   State, local government and/or precinct authorities are required to establish and operate design review processes to review applications of certain thresholds set out in the WAPC Design Review Guide.	The SPP states that design review is a requirement.   For a local government like Broome, the requirement to establish a Design Review panel is considered administratively onerous and a financial burden. Specific concerns with the proposed Design Review Guide is outlined in the comments below.   While it is acknowledged that proposed Design Review process could deliver positive outcomes, this may only be appropriate for local governments which receive a large number of the ‘threshold applications’.   Further given the cost in running Design Review processes, each local government should have discretion to choose whether it wants to implement a design review process and it should not be mandated.	The State Planning Policy is amended to outline that it is at the Local Government’s discretion whether a Design Review process is adopted.

 

DRAFT APARTMENT DESIGN POLICY (DESIGN POLICY)

Section / Clause	Officer Comments	Recommendation
General Comments	The Shire of Broome welcomes the release of the draft SPP 7.3 – Residential Design Codes Guidance for multiple-dwelling and mixed use developments (Design Policy). While the predominant residential development activity that occurs in Broome is in the form of single or multiple dwellings, as Broome plans for its future growth and the possibility of increase in densities, this document will be important in ensuring positive apartment design outcomes.   The Design Policy is considered appropriate to address apartment design and also to ensure that when designing apartments, practical considerations that will impact upon the liveability of the future occupants are taken into account. While this Policy is more detailed than the R-Codes in terms of design elements that need to be addressed, given that this Policy will guide apartment development (which are more complex than standard residential development), it is considered appropriate.
1.1 – Preliminary   Varitations to Volume Two of the Residential Design Codes   Where amendments or replacements to primary controls and planning criteria are consistent with the relevant planning objectives, local planning policies, local development plans, structure plans and activity centre plans may contain provisions that: ·    with the approval of the WAPC, amend or replace the primary controls and planning criteria contained in the following sections of this policy: -      Streetscape character types -      Plot ratio -      Building height -      Building depth -      Building separation -      Street setbacks -      Side and rear setbacks -      Incentive-based development standards.	This section of the Policy outlines that amendments or variations to Primary Controls can occur through a range of planning instruments, which includes local planning policies, structure plans, etc. This section appears to contradict the text provided under part 2 – primary controls, which implies that amendments or variations can only occur through an amendment to a Local Planning Scheme.   Further, this section appears to be inconsistent with the WAPC’s Structure Plan Framework and the Planning and Development (Local Planning Schemes) Regulations (the Regulations) which states that the Regulations do not allow structure plans to vary the requirements of the R-Codes.   This ambiguity needs to be clarified.   It is submitted that a Structure Plan is not an appropriate mechanism for amending primary controls and instead this should be undertaken through the preparation of a Local Development Plan (LDP), as these are more detailed planning instruments and are generally focused on a particular precinct and built form outcome, rather than a broader land use document like a Structure Plan.	1.   Correct typo in heading, should be ‘variations’ not ‘varitations’. 2.   The WAPC needs to clarify in this section and further in part 2 – primary controls, which planning process is required to introduce amendments or variations to primary controls. 3.   The WAPC needs to clarify whether primary controls can be amended through provisions within a Structure Plan.  Tt is recommended that a Local Development Plan is a more appropriate planning instrument for detailed amendments to primary controls.
2.1 Primary Controls   Street, side and rear setbacks   Table 1 – Primary Controls Table   Minimum Street Setbacks – 4m R40 – R160 (Detached streetscape pattern)   Minimum Side and Rear Setback – 3m and 6m (Detached streetscape pattern)	Currently in the R-Codes, Table 4 contains the minimum primary and secondary street setback which are 4m and 1.5m respectively at the R40 density. These setbacks decrease to 2m for both primary and secondary setback under the higher density codes and no minimum rear setback is prescribed (it is controlled by Tables 2a and 2b based on the height and the length of the wall). The Design Policy prescribes greater minimum setbacks to that currently provided which may impact upon development viability for lots.    Further, under clause 6.1.3 and 6.1.4 of the current R-Codes, Design Principles are established which enable a performance assessment of applications and variations to the minimum setbacks if warranted on a case-by-case basis at the development assessment stage. As setbacks are a primary control, as set out in the comments above, it is uncertain where any discretion exists to be able to vary a primary control and what mechanism is required to allow for a variation (i.e whether the Scheme has to be amended or if it could occur through an LDP or Local Planning Policy).	That consideration be given to either: a)    removing setbacks as a Primary Control and making them a ‘Siting the Development’ design element under Part 3. This would enable minimum setbacks to be established as Design Criteria, while allowing these to be varied on a site by site basis where the overall objective can be satisfied; or b)    Establishing ‘design principles’ specifically for setbacks under the Primary Controls to enable variations to be considered where warranted.
2.1 Primary Controls   Building Height   Table 1 – Primary Controls Table establishes building height limit in storeys, rather than in metres.	Establishing control measures in storeys rather than metres is problematic. Height controls should be measured in metres and a description can be provided in explanatory text setting out on average how many building storeys are likely within the building height controls.	That building height controls are in metres not storeys or alternatively a definition is provided in relation to the height of a building storey.
3.9 Vehicle Access   Vehicle access points are designed and located to minimise streetscape impacts and avoid conflicts between pedestrians and vehicles.	The objective provided under this section is appropriate, however subjective. It is considered that given the impact vehicle access can have upon a number of design elements, Design Criteria should be included to have measurable standard of when the objective is deemed satisfied. The existing deemed-to-comply criteria under the R-Codes could be used.   Also recommended that Design Criteria is included on the driveway standards and the need for vehicles to enter the street in forward gear in set situations.	1.   That Design Criteria are included with measureable controls regarding the number of vehicle access points. 2.   That Design Criteria are included on driveway standards, particularly where driveways are required to allow for two way vehicle movement and vehicles entering the street in forward gear.
4.5 Private Open Space and Balconies   Design Criteria is established which allows for studio apartment and 1 bedroom apartment is to have minimum 8sqm of private open space/balconies.	Currently under the R-Codes, each unit must be provided with at least one balcony with a minimum area of 10sqm and minimum dimension of 2.4m. Under the Design Policy it is proposed to be reduced to 8sqm for both studio and 1 bedroom apartments and in the case of studio units, the minimum dimensions have been reduced to 2sqm.   Given this is the only area of private open space available to future residents, to ensure that outdoor open space remains usable for future residents the existing minimum standards under the R-Codes should be maintained. This is particularly important in Broome, where outdoor living forms an integral part of lifestyle.	That the Design Criteria for private open space and balconies for studio apartments and 1 bedroom units be maintained as per the existing deemed-to-comply criteria under the R-Codes.

 

DRAFT DESIGN REVIEW GUIDE

Section / Clause	Officer Comments	Recommendation
General Comments	Overall, while the theory of having design review panels is considered positive, requiring that all local governments have such a process will introduce significant administrative burden and cost. In Broome’s context, based on the thresholds proposed only a small portion of developments would need to be considered by a design review panel. However, the administrative burden to establish and maintain the panel would be high. Further, while it is noted that early discussions in the concept and design phase with proponents and local governments can result in improved outcomes and time savings (which is a practice already promoted by the Shire), the introduction of a panel will result in additional costs and administrative burden on both the local government and applicants. This is considered unnecessary, particularly in Broome’s case when only a small amount of developments would be captured.	While the Design Review process is considered to have merit, the need to have a panel is considered administratively onerous and should not be a requirement under the State Planning Policy.  Instead, this should be at the local government’s discretion. Further, the improvements overall to design outcomes that will be achieved through the introduction of the other elements of the new SPP mean there is less justification for the need for a Design Review Panel.
5 How to establish design review processes   For design review to be effective, it must be conducted in a manner that is fair, robust and credible. The following ‘best practice’ principles of design review should be used to guide the review process and set an appropriately high standard of conduct from panel members.   Design review should be:   Independent It is conducted by people who are unconnected with the proposal’s promoters and decision-makers and ensures that conflicts of interest do not arise.   Expert It is carried out by suitably trained people who are experienced in design and know how to criticise constructively. Review is usually most respected when it is carried out by professional peers of the project designers, because their standing and expertise will be acknowledged.	A panel may be able to be established in a larger metropolitan context where there is a pool of potential ‘expert’ and multi-disciplinary panel members.  However in the case of Broome, while there are a number of high-quality practitioners that would meet the panel membership criteria, they are likely to have a conflict as they may be acting on behalf of the applicant. The requirement for the panel to be ‘independent’ in Broome’s case is therefore is likely to increase the costs of administering a panel, as panel members may have to be sourced from outside of Broome.	The Design Review process is not made a requirement through the State Planning Policy.
5 How to establish design review processes   Role description   The role of a design review panel is to provide independent, expert design advice: -      to decision-makers (local governments, Development Assessment Panels, the State Administrative Tribunal) on eligible development applications in design reviews -      through design workshops where necessary - held to assist with the design development of larger or strategic projects. -      to local governments, where sought, on strategic policy, master plans, precinct plans, Local Development Plans, Structure Plans, Activity Centre Plans and Local Planning Scheme amendments, to guide the quality of wider precincts.   Design review panels are advisory only and do not have a decision-making function. The panel advises on the design quality of applications with reference to design principles (from SPP 7, refer to Part 4) and supporting State Planning Policies, as well as Local Planning Schemes and policies. Decision-makers must pay due regard to the design review assessment outcomes in their deliberations. The panel may identify and recommend improvements necessary to achieve consistency with the wider planning framework.	While it is understood that the panel’s role is to provide design feedback and recommendations, the Guide does not address how the recommendations are to be dealt with (i.e. whether the applicant at any stage of the design review process has to amend the design to address recommendations raised or provide a justification for why the recommendation cannot be accommodated). Further, the role of the design review panel is in conflict with the development assessment process, where considerations are limited to the proposal put forward, not whether an alternative design would be better	The Design Review process is not made a requirement through the State Planning Policy.
5 How to establish design review processes   Funding and remuneration   Local governments are responsible for the funding and remuneration of design review panels. Entitlements for design review panel members include remuneration and the payment of expenses.   In 2016, a survey of existing design review panel processes indicated that design review panel operating costs varied from $12,000 - $120,000, depending on the number of eligible proposals submitted for review, frequency of meetings and the extent to which the panel is called upon to contribute to the development of local policies and precinct planning. The investment in design review was considered good value-for-money as it offered broad and long-term benefits to the community. Funding models for consideration include:   Local government appropriated funds -      If local governments fund design review, then proponents may be more likely to seek design review earlier in the design process.   Proponent funded -      Design review fees create an incentive to appoint a skilled designer and pursue good quality design from the outset, so that the number of reviews are minimised.  -      A set fee, or development application fee, committing applicants to a minimum number of reviews may encourage proponents to seek design review earlier in the design process.   A balance of local government appropriated funding and proponent fee -      Local governments could offer a set number of design reviews under appropriated funding, with any extra reviews paid for by the proponent.   It is important that remuneration for design review panel members is fair and equitable. Remuneration should reflect the professional standing of design review panel members and their time taken to prepare for and participate in meetings.	While the concept of design review panels is considered sound, requiring that all local governments have such a process will introduce significant administrative burden and costs (it is noted that the operating costs provided do not included the administrative expense to local government in establishing and running a panel, it is the direct panel member costs only). In Broome’s context, based on the thresholds proposed, only a small portion of developments would need to be considered by a design review panel.  However, the administrative burden to establish and maintain the panel would be high. Further, while it is noted that early discussions in the concept and design phase with proponents and local governments can result in improved outcomes and time savings (which is a practice already promoted by the Shire), the introduction of a panel will result in additional costs and administrative burden on both the local government and applicants, which is considered unnecessary, particularly in Broome’s case when only a small amount of developments would be captured.	The Design Review process is not made a requirement through the State Planning Policy.
7 Design review modes and thresholds   Interim procedures until a full design review panel is appointed   The Design Review Threshold Table (page 27) establishes that ‘commercial development DAP threshold’ and ‘apartment Development DAP threshold’ are to be considered by the State Design Review Panel as an interim procedure.	No information is provided within the Guide as to the process (including timing, sitting dates, costs etc) of the State Design Review Panel (SDRP), yet the Guide establishes that in the interim while each local government is establishing a full design review panel that relevant applications are to be referred to the SDRP.    It is unclear who is to pay for consideration of a proposal by the SDRP, how a referral is to occur, or whether such applications could be considered within the strict timeframes required by the DAP Regulations to prepare the Responsible Authority report on which the DAP is to base its decision on.	The Design Review process is not made a requirement through the State Planning Policy.
7 Design review modes and thresholds   Design Review Threshold   The Design Review Threshold Table (page 27) establishes that ‘commercial development DAP threshold’, ‘apartment Development DAP threshold’, ‘apartment development equal or greater than 10 dwellings’ and ‘activity centre and structure plans’ are to be subject to a design review process.	Given that local governments are not a decision making authority in the case of Structure Plans (the WAPC is) and further as the expertise of the panel members is orientated more to built form outcomes, the need for structure plans to be referred to a design review panel is questioned.	Structure Plans not be included as a planning instrument which is to be considered by a design review panel.

 

DRAFT DESIGN REVIEW DISCUSSION PAPER

Section / Clause	Officer Comments	Recommendation
4 – Options for consideration   ·    Option one – threshold-based regulation ·    Option two – competency standards ·    Option three – no regulation	If design skills standards are going to be introduced then the first option of threshold based regulation should be used. This is considered a more appropriate response as architects are already required to be registered under the provisions of the Architects Act 2004. If this type of skills standards is going to be introduced, it is important that the thresholds for applications are determined appropriately based on the type of development which is being prepared. In this regard, the DAP thresholds could be used as a threshold.	The threshold based regulation is selected as the preferred option.

 

 

9.2.2      CIRCUS ROYALE EVENT APPLICATION LOCATION/ADDRESS:                            Male Oval APPLICANT:                                              Circus Royale FILE:                                                           REP004 AUTHOR:                                                   Events & Economic Development Coordinator CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Acting Director Community Development DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    19 January 2017

 

SUMMARY:         This report seeks Council’s consideration of an application from Circus Royale to hold a series of circus performances over a seven day period on the Male Oval Concourse and Reserve between 29 May and 4 June 2017. Circus Royale seeks a total number of seven nights caravanning on Male Oval for the purpose of undertaking Circus Royale performances. This event application cannot be approved under delegation and is required to be considered by Council for the following reasons: 1.   Approval is required to allow caravanning and camping other than at a caravan park or camping ground for a period that is longer than three nights; 2.   Approval for the event to operate for a period longer than five days under provisions of Local Planning Scheme No. 6. This report recommends that the application be approved with minor amendments to the proposed signage.

 

 

BACKGROUND

 

Previous Considerations

 

Nil

 

Circus Royale were previously approved to hold an event on Male Oval Concourse for a period of seven days including camping for this period and the holding of five, performances between 4 - 9 June 2013.

 

Circus Royale is a circus performance showcasing human and animal based acts including both Australian and International performers. No caged or exotic animals are featured in the circus, although the applicant is seeking permission to house camels, llamas, geese, horses and dogs on Male Oval for performance purposes.

 

The event applicant proposes a total of fifteen caravans and one billboard trailer to remain on site in order to accommodate a total number of 30 persons, operate a box office and hold all production equipment.  They are also requesting the billboard trailer be placed onsite for a period of one week prior to the event.

 

The attached Circus Royale site map indicates a site footprint with the main ‘big top’ tent being 35 metres in width and the foyer tent being 10 metres in width. Peripheral trailers include a box office, kiosk, mobile homes and storage vehicles. The animals will be housed in an area with a boundary of one metre high electric fence. Photographic evidence demonstrates that the Circus Royale production equipment is aesthetically attractive and will not negatively affect the appearance of Male Oval reserve.

 

COMMENT

 

Approval to Camp

Under the Caravan Parks and Camping Grounds Regulations 1997-

 

Part 2 – Caravanning and camping generally, Regulation 11 (2) –

Camping other than at a caravan park or camping ground ‘(2) Written approval may be given for a person to camp on land referred to in sub regulation (1) (a) for a period specified in the approval which is longer than 3 nights (a) by the local government of the district where the land is situated, if such approval will not result in the land being camped on for longer than 3 months in any period of 12 months;

 

Planning Approval

In accordance with LPP 8.30 – Minor Development, an event that occurs on a temporary basis is exempt from the need to obtain planning approval. Temporary is defined as less than 120 continuous hours (the use of the land for a maximum of five consecutive days).  Though this application exceeds the set period of five days by a period of two days it is recommended that this be approved as the event is considered low risk.

 

Parking Provision

Given that the circus will operate outside of the trading hours of most businesses within proximity to the site, it is reasoned that there will be limited, if any, conflict in the use of public parking bays by patrons of the circus and customers of businesses within proximity.

 

Advertising

The applicant is seeking permission to advertise the circus show times via parked billboard trailers and stationary signage. It has been requested that one of the billboard trailers be located on the Male Oval reserve for one week prior to the event commencing. The proposal of the stationary billboard truck for one week prior to the event is not supported by officers. An alternative option of Banner signage is proposed. All advertising will be addressed and controlled in accordance with the appropriate Local Laws under the direction of Development Services.

 

Any event signage must comply with the Shire’s Local Planning Policy 8.17 Signs. It should be noted that as per Local Planning Policy 8.17 Signs, event signage cannot involve any advertising devises which are inflatable, or devices which are illuminated with pulsating, flashing or moveable electronic writing or animation.

 

Recommendation

Officers are recommending approval based on the activation of Chinatown, with potential flow on benefits to Chinatown traders and assistance in building a robust Broome events calendar.

 

CONSULTATION

 

Nil

 

STATUTORY ENVIRONMENT

 

Shire of Broome Local Government Property and Public Places Local Law 2012

 

Definitions and Interpretations

 

1.6     (1) In this local law, unless the context otherwise requires: “function” means an event or activity characterised by any or all of the following:

 

(a) formal organisation and preparation;

(b) its occurrence is generally advertised or notified in writing to particular persons;

(c) it is organised by or on behalf of a club;

(d) payment of a fee is required for attendance; and

(e) there is systematic recurrence in relation to the day, time and place;

 

3.1     (1) Where a person is required to obtain an approval from the local government under this local law, that person shall:

(a) not do the thing for which the approval is required without first obtaining the approval; and

(b) apply for the approval in accordance with subclause (2).

 

(2) An applicant shall make an application for an approval by completing the form provided for the purpose by the local government, paying the application fee to the local government and forwarding the application to the local government.

(3) The signature of the applicant on the form under subclause (2) shall be deemed to be proof that the applicant has:

 

(a) read and understood any conditions printed on the application form; and

(b) accepted and agreed to comply with any conditions printed on the application form.

 

Determination of application

 

3.2     (1) The local government may, in respect of an application for an approval: (a) refuse the application; or (b) approve the application on such terms and conditions, if any, as it considers fit.

(2) Without limiting the generality of subclause (1)(b), the local government may impose conditions requiring the payment of a fee for the issue of the form of approval referred to in subclause (3) and for the renewal of the approval, including the payment of a renewal fee.

(3) If the local government approves an application under subclause (1)(b), then it is to issue to the applicant an approval in the form determined by the local government.

 

Conditions of approval

 

3.3              (1) Where an application for an approval has been approved subject to conditions, the approval holder shall comply with each of those conditions.

(2) The local government may vary the conditions of an approval and the approval holder shall comply with those conditions as varied.

 

Division 2 – Matters relating to approvals

 

Term and validity of approval

 

3.4 An approval remains valid until:

 

(a) the expiration date and time stated in the approval is reached;

(b) the activity or function for which the approval was issued is changed to the extent that it is no longer consistent with the original purpose or intent for which the approval was given;

(c) the approval is cancelled by the local government under clause 3.5; or

(d) the public liability or indemnity insurance required as a condition of an approval lapses, is cancelled or is no longer current.

 

3.5     (1) The local government may cancel an approval if:

 

(a) anything purporting to be done in accordance with the approval is not done in conformity with the conditions of the approval;

(b) the approval holder is convicted of an offence against this local law; or

(c) the approval holder fails to comply with a notice given under clause 12.1 in relation to a breach of the approval or a condition of the approval.

 

(2) Notwithstanding subclause (1), where an approval relates to the hiring of local government property, the local government may cancel the approval at any time. (3) Where the local government cancels an approval for the hire of local government property under subclause (2), then the local government shall not be liable to the approval holder for any loss or damage sustained by the approval holder arising from the cancellation

 

Part 4 – Activities Which Are Restricted Or Prohibited On Local Government Property and Public Places

 

Division 1 – Activities only permitted under an approval or by a sign

Activities requiring an approval 4.1 (1) A person shall not on any local government property or public place within the Broome town site area, without first having obtained an approval from the local government to do so:

 

(a) consume any liquor;

(b) erect a structure for public amusement or for any performance for personal gain or otherwise;

(c) conduct any function;

(d) light or set off any fireworks or conduct a fireworks display;

(e) light any fire except in a facility provided for that purpose;

(f) erect any tent, camp, hut, building or other structure, other than a beach umbrella or other portable item used for protection from the elements between sunrise and sunset on any day;

(g) coach, teach, instruct or train any person for a fee;

(h) charge a person for entry to local government property;

(i) operate any broadcasting or public address system or apparatus, other than those used by a life saving club in the performance of its functions;

(j) erect any sign;

(k) walk, lead, ride, herd or drive any large animal;

(l) play or use any musical instrument or any other similar device;

(m) pursue a use on local government property set aside for that purpose under clause 5.1

 

Shire of Broome Trading, Outdoor Dining ad Street Entertainment Local Law 2003

 

Definitions and Interpretations 1.6 In this local law unless the context requires otherwise: “trading” includes:

 

(a)  the selling or hiring or, the offering for sale or hire of or the soliciting of orders for goods or services in a public place;

 

(b) 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

 

(c) 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:

 

(d) the delivery of pre ordered goods or services to the purchaser of those goods or services, or to the person nominated by the purchaser of those goods or services to accept delivery, whether or not payment for those goods or services is made on delivery;

 

46. Local laws and regulations generally (1) Any regulation made under section 44 or local law made under this Act may be so made —

(a) as to apply generally or in a particular class of case, or particular classes of cases, at all times or at a specified time or specified times, throughout the district or in a specified part or specified parts of the district and in areas which although not within the district are by the operation of the provisions of this Act nevertheless to be regarded as being within the district;

(b) as to require a matter affected by it to be in accordance with a specified requirement, or as approved by, or to the satisfaction of, a specified person or body, or class of person or body, and so as to delegate to or confer upon a specified body a discretionary authority; and

(c) as to provide that in specified cases, or a specified class of case, or specified classes of cases, whether on specified conditions or unconditionally, persons or things may be exempted from its provisions either wholly or to such extent as is specified.

 

(2) Any regulation made under section 44 or local law may make provision for the imposition of penalties not exceeding $100 in respect of any contravention.

 

(3) Where in relation to a regulation made under section 44 or local law made under this Act the expression “specified” is used, the expression, unless the context requires otherwise, means specified in that regulation or local law.

 

Shire of Broome Health Local Law 2006

 

Division 3 - Keeping of Large Animals

 

5.3.1 Interpretation

 

5.3.1 In this Division, unless the context otherwise requires - "approved animal" includes a horse, cow or large animal the subject of an approval by the local government under Section 5.3.2;

"cow" includes an ox, calf, or bull;

"horse" includes an ass, mule, donkey or pony;

and "large animal" includes a pig, sheep, goat, deer or camel.

 

5.3.2 Conditions for keeping of an animal 5.3.2

 

(1) An owner or occupier of premises, within a townsite shall not keep a horse, cow or large animal on those premises without approval of the local government.

(2) An owner or occupier of premises who has an approved animal shall ensure –

(a) the premises has an area of not less than 0.2 hectares for the exclusive use of the approved animal; and

(b) the approved animal does not approach within 30 metres of a dwelling.

 

5.3.3 Stables

 

5.3.3 (1) Subject to clause 5.3.3(4) the owner or occupier of premises within the townsite, who has an approved animal is to provide for its use a stable which shall –

 

(a) not be situated within 30 metres of a house or other premises;

(b) have a proper separate stall –

(i) for each horse, cow or large animal; and

(ii) the floor area of which shall be a minimum of 6 square metres;

(c) have each wall and roof constructed of an approved impervious material;

(d) have on all sides of the building between the wall and the roof a clear opening of at least 150 millimetres in height;

(e) subject to subsection (3), have a floor, the surface of which shall –

(i) be at least 75 millimetre above the surface of the ground;

(ii) be constructed of cement, concrete or other similar impervious materials approved by the Manager Health Services;

(iii) have a fall of 1 in 100 to a drain which shall empty into a trapped gully situated outside the stable and shall discharge in a manner approved by the local government.

 

(2) The owner or occupier of any premises on which a stable is located shall –

(a) maintain the stable in a clean condition and when so directed by an Environmental Health Officer, clean, wash and disinfect it;

(b) keep all parts of the stable so far as possible free from flies or other vectors of disease by spraying with a residual insecticide or other effective means; and

(c) when so ordered by an Environmental Health Officer, spray the stable or such parts as maybe directed, with a residual insecticide.

 

(3) A stable constructed with a sand floor may be permitted by the local government, subject to the following –

(i) the site must be well drained with the highest known water table at least 1.5 metres below the sand floor level, which may be achieved artificially;

(ii) sand whether natural or imported, must be clean, coarse and free from dust;

(iii) the stable design must allow for the access of small earth moving machinery such as a skid steer loader, into each stall, to maintain the correct floor height;

(iv) the minimum floor area of each stall shall be not less than 28 square metres and walls shall be not less than 3 metres vertically or 4 metres horizontally;

(v) the roofed area of each stall shall not be less than 50 percent of the floor area of the stall.

 

(4) An owner or occupier of a premise may apply in writing to the Local Government for an exemption from compliance with the requirements of Section 5.3.3(1).

 

POLICY IMPLICATIONS

 

4.2.10         Approval to camp for up to 3 months in areas other than Caravan parks and camping Grounds

4.2.15         Trading in Public Places

5.1.11         Events

7.18            Signs

 

FINANCIAL IMPLICATIONS

 

The following fees will be payable by the applicant in line with the Shire of Broome’s schedule of fees and charges:

 

Fee Type	Fee
Event Application Fee	$112.00
Venue hire (7 Day total)	$5,482.40
Public Building Approvals	$460.00
TOTAL	$7,154.40
*A $1,100 refundable ground bond is required with venue hire. Additional costs may be charged for engineering and parks and gardens.

 

RISK

 

The applicant has submitted a risk management plan, emergency site plan and site evacuation plan. Current structural certification for production equipment including tents has been supplied along with a certificate of currency for Public Liability insurance. This event is considered to be a low to medium level risk for the Shire. 

 

Given the extended period of occupation, there is a possibility of damage to the oval surface. Should this occur, any excessive costs of rehabilitation will be withheld from the bond paid by the applicant.

 

The applicant is to ensure that infrastructure does not exceed the Broome International Airport height restrictions. 

 

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

 

Accessible and safe community spaces

 

Participation in recreational and leisure activity

 

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:

 

Key economic development strategies for the Shire which are aligned to regional outcomes working through recognised planning and development groups/committees

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council: 1.       Approves the event application and authorises the Chief Executive Officer to issue an event permit in accordance with Events Policy 5.1.11 to Circus Royale for the staging of the proposed Circus Royale performances at Male Oval Reserve from 29 May (6am) to 4 June (12noon) 2017 subject to: a) Compliance with all local laws, State and Federal Acts and Regulations related to the event activity; b) Appropriate advice and liaison being undertaken with the Broome International Airport in relation to structural height restrictions; c) Banner signage only be approved to be in place on Male Oval for one week prior to the event being 21 May to 28 May 2017; and d) All risk control measures outlined within the Risk Management Plan submitted with the event application are followed, to the satisfaction of the Chief Executive Officer. 2.       In accordance with the Caravan Parks and Camping Grounds Regulations 1997, issues approval to camp on Male Oval Reserve for a period of seven days from 29 May to 4 June 2017 for a total of 15 caravans and one billboard (Advertising) trailer for the purpose of accommodating a total number of 30 persons and required production equipment; and 3.       In accordance with clause 8.2 of Local Planning Scheme No. 6, agrees that the           proposal is temporary in nature and therefore does not require planning approval.

 

Attachments

1.	Circus Royale Male Oval Site Map 2017

  

Item 9.2.2 - CIRCUS ROYALE EVENT APPLICATION

 

 

 

9.2.3      EVENT APPROVAL - FULL MOON BAREFOOT BALL LOCATION/ADDRESS:                            Cable Beach Reserve APPLICANT:                                              Kyle Andrews Foundation Inc FILE:                                                           REP004 AUTHOR:                                                   Events & Economic Development Coordinator CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Acting Director Community Development DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    20 January 2017

 

SUMMARY:         The Shire has received an event application from the Kyle Andrews Foundation Inc. to hold the Full Moon Barefoot Ball on Cable Beach in front of the Surf Life Saving Club on 12 May 2017. This event will form part of the Foundation’s 20th anniversary celebrations of the Kyle Andrews Walk. The event will have low visual impact as it will be set up over an area of 30 metres x 40 metres on Cable Beach, with flags and citronella lamps being used to mark the event boundary. No large infrastructure will be erected. A secondary area five metres square will be located in close proximity to contain temporary toilets. This event application cannot be approved under delegation and is required to be considered by Council for the following reasons: 1.   Council’s Events Policy 5.1.11 requires events in Category 1 (120-500) patrons for an event located on Cable Beach to be approved by Council; 2.   Access to the beach vehicle prohibited area will be required for two vehicles for the duration of the event between 10.00am and 11.00pm on 12 May 2017.

 

 

BACKGROUND

 

Previous Considerations

 

Nil

 

The Full Moon Barefoot Ball will mark a milestone for the Kyle Andrews Foundation Inc in delivering 20 Kyle’s Camps in Broome and will be used to celebrate the support provided by the community.  The first came about after Kyle was sitting on Cable Beach watching a sunset after undergoing a bone marrow transplant and wishing the children from the Oncology ward could come to Broome and experience his lifestyle. Since this time the Broome community has sponsored and welcomed 340 children undergoing medical treatment to Broome to experience a week of sunshine and activities. The Full Moon Barefoot Ball will welcome major contributors to celebrate the anniversary including previous attendees of the camp, carers, Princess Margaret Hospital staff and ex committee members, along with the Broome community.

 

COMMENT

 

For this event, the pre drinks and canapes will be held at the Broome Surf Life Saving Club (BSLSC) with the main part of the event being held on Cable Beach on 12 May 2017. The visual impact will be low due to the layout and design of the set up. No large infrastructure will be erected and the event area will be delineated by flags and lamps. There will be tables, chairs and a small stage to the rear of the event area near the sand dunes, along with two small bar serving areas. The food preparation will be done in commercial kitchens off site and the BSLSC will be utilised to plate individual picnic hampers for the guests. The BSLSC will be applying for and holding the liquor licence for the event.

 

Officers will liaise with the Kyle Andrews Foundation Inc to ensure that all public access ways to the beach remain open to the general public at all times.  This is recommended to be a condition of approval for the event.  

 

On this basis, and in accordance with the current Events Policy, this report seeks Council approval of the event.

 

CONSULTATION

 

Nil

 

STATUTORY ENVIRONMENT

 

Shire of Broome Local Government Property and Public Places Local Law 2012

 

Definitions and Interpretations

 

1.6     (1) In this local law, unless the context otherwise requires: “function” means an event or activity characterised by any or all of the following:

 

(a) formal organisation and preparation;

(b) its occurrence is generally advertised or notified in writing to particular persons;

(c) it is organised by or on behalf of a club;

(d) payment of a fee is required for attendance; and

(e) there is systematic recurrence in relation to the day, time and place;

 

3.1     (1) Where a person is required to obtain an approval from the local government under this local law, that person shall:

(a) not do the thing for which the approval is required without first obtaining the approval; and

(b) apply for the approval in accordance with subclause (2).

 

(2) An applicant shall make an application for an approval by completing the form provided for the purpose by the local government, paying the application fee to the local government and forwarding the application to the local government.

(3) The signature of the applicant on the form under subclause (2) shall be deemed to be proof that the applicant has:

 

(a) read and understood any conditions printed on the application form; and

(b) accepted and agreed to comply with any conditions printed on the application form.

 

Determination of application

 

3.2     (1) The local government may, in respect of an application for an approval: (a) refuse the application; or (b) approve the application on such terms and conditions, if any, as it considers fit.

(2) Without limiting the generality of subclause (1)(b), the local government may impose conditions requiring the payment of a fee for the issue of the form of approval referred to in subclause (3) and for the renewal of the approval, including the payment of a renewal fee.

(3) If the local government approves an application under subclause (1)(b), then it is to issue to the applicant an approval in the form determined by the local government.

 

Conditions of approval

 

3.3              (1) Where an application for an approval has been approved subject to conditions, the approval holder shall comply with each of those conditions.

(2) The local government may vary the conditions of an approval and the approval holder shall comply with those conditions as varied.

 

Division 2 – Matters relating to approvals

 

Term and validity of approval

 

3.4 An approval remains valid until:

 

(a) the expiration date and time stated in the approval is reached;

(b) the activity or function for which the approval was issued is changed to the extent that it is no longer consistent with the original purpose or intent for which the approval was given;

(c) the approval is cancelled by the local government under clause 3.5; or

(d) the public liability or indemnity insurance required as a condition of an approval lapses, is cancelled or is no longer current.

 

3.5     (1) The local government may cancel an approval if:

 

(a) anything purporting to be done in accordance with the approval is not done in conformity with the conditions of the approval;

(b) the approval holder is convicted of an offence against this local law; or

(c) the approval holder fails to comply with a notice given under clause 12.1 in relation to a breach of the approval or a condition of the approval.

 

(2) Notwithstanding subclause (1), where an approval relates to the hiring of local government property, the local government may cancel the approval at any time. (3) Where the local government cancels an approval for the hire of local government property under subclause (2), then the local government shall not be liable to the approval holder for any loss or damage sustained by the approval holder arising from the cancellation

 

Part 4 – Activities Which Are Restricted Or Prohibited On Local Government Property and Public Places

 

Division 1 – Activities only permitted under an approval or by a sign

Activities requiring an approval 4.1 (1) A person shall not on any local government property or public place within the Broome town site area, without first having obtained an approval from the local government to do so:

 

(a) consume any liquor;

(b) erect a structure for public amusement or for any performance for personal gain or otherwise;

(c) conduct any function;

(d) light or set off any fireworks or conduct a fireworks display;

(e) light any fire except in a facility provided for that purpose;

(f) erect any tent, camp, hut, building or other structure, other than a beach umbrella or other portable item used for protection from the elements between sunrise and sunset on any day;

(g) coach, teach, instruct or train any person for a fee;

(h) charge a person for entry to local government property;

(i) operate any broadcasting or public address system or apparatus, other than those used by a life saving club in the performance of its functions;

(j) erect any sign;

(k) walk, lead, ride, herd or drive any large animal;

(l) play or use any musical instrument or any other similar device;

(m) pursue a use on local government property set aside for that purpose under clause 5.1

 

Shire of Broome Trading, Outdoor Dining ad Street Entertainment Local Law 2003

 

Definitions and Interpretations 1.6 In this local law unless the context requires otherwise: “trading” includes:

 

(a)  the selling or hiring or, the offering for sale or hire of or the soliciting of orders for goods or services in a public place;

 

(b) 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

 

(c) 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:

 

(d) the delivery of pre ordered goods or services to the purchaser of those goods or services, or to the person nominated by the purchaser of those goods or services to accept delivery, whether or not payment for those goods or services is made on delivery;

 

46. Local laws and regulations generally

 

(1) Any regulation made under section 44 or local law made under this Act may be so made —

          (a)as to apply generally or in a particular class of case, or particular classes of           cases, at all times or at a specified time or specified times, throughout the                     district or in a specified part or specified parts of the district and in areas which                although not within the district are by the operation of the provisions of this Act              nevertheless to be regarded as being within the district;

 

(b) as to require a matter affected by it to be in accordance with a specified requirement, or as approved by, or to the satisfaction of, a specified person or body, or class of person or body, and so as to delegate to or confer upon a specified body a discretionary authority; and

 

(c) as to provide that in specified cases, or a specified class of case, or specified classes of cases, whether on specified conditions or unconditionally, persons or things may be exempted from its provisions either wholly or to such extent as is specified.

(2) Any regulation made under section 44 or local law may make provision for the imposition of penalties not exceeding $100 in respect of any contravention.

 

(3) Where in relation to a regulation made under section 44 or local law made under this Act the expression “specified” is used, the expression, unless the context requires otherwise, means specified in that regulation or local law.

 

Shire of Broome Health Local Law 2006

 

POLICY IMPLICATIONS

 

5.1.11         Events

4.2.15         Trading in Public Places

 

FINANCIAL IMPLICATIONS

 

The Kyle Andrews Foundation Barefoot Ball on Cable Beach will attract application and licence fees in accordance with the adopted Council fees and charges.

 

Fee Type	Fee
Event Application Fee	$112.00
Venue hire	$313.50
Public Building Approvals	$210.00
Waste Services	$489.64
TOTAL	$1,125.14

 

RISK

 

No significant risk factors have been identified with this event.

 

In accordance with the Shire Events Policy 5.1.11, the applicant is required to submit a Risk Management Plan. Officers have requested the event organiser include controls to mitigate any risk associated with glass on the beach at this event within the risk management plan, prior to an event permit being issued and provide certificates of currency for public liability insurance cover.

 

STRATEGIC IMPLICATIONS  

 

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

 

Accessible and safe community spaces

 

Participation in recreational and leisure activity

 

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

 

Effective community engagement

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council approves the event application and authorises the Chief Executive Officer to issue an event permit in accordance with Event Policy 5.1.11 to the Kyle Andrews Foundation Inc for the Full Moon Barefoot Ball to be held on Cable Beach 12 May 2017 (with any minor variations), subject to the following conditions: 1.   All public access ways, stairs and paths remain open and accessible to the     general public at all times; 2.   Only two vehicles with trailers will have access to the vehicle exclusion zone of Cable Beach at any one time; 3.   The applicant must meet all regulatory requirements for the event; and 4.   All risk control measures, outlined in the Risk Management Plan submitted with the event application, are to be followed to the satisfaction of the Chief Executive Officer.

 

Attachments

1.	Ball Location Plan Cable Beach
2.	Ball Site Layout Plan

  

Item 9.2.3 - EVENT APPROVAL - FULL MOON BAREFOOT BALL

 

 

Item 9.2.3 - EVENT APPROVAL - FULL MOON BAREFOOT BALL

 

 

 

9.2.4      DEVELOPMENT ASSESSMENT PANEL (DAP) NOMINATIONS OF MEMBERS AND ALTERNATE MEMBERS LOCATION/ADDRESS:                            N/A APPLICANT:                                              Department of Planning FILE:                                                           PLA01 AUTHOR:                                                   Senior Planning Officer CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Director Development Services DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    24 January 2017

 

SUMMARY:         Development Assessment Panels (DAPs) were introduced on 1 July 2011 to determine development applications that meet prescribed thresholds. Each DAP comprises five (5) members: three (3) specialist members and two (2) local government members. As per the DAP Regulations, the Shire is required to nominate two (2) sitting members and two (2) alternate members to the Joint Kimberley Development Assessment Panel (JDAP). The Shire’s current DAP members were appointed on 27 July 2015 for the term expiring 26 April 2017. A request for nominations of replacement members for the Kimberley JDAP was received from the Department of Planning (DoP) on 4 January 2017. Accordingly, this report recommends that Council submit its nomination of DAP members to the Minister of Planning.

 

 

BACKGROUND

 

Previous Considerations

 

OMC 27 November 2014             Item 9.4.5

OMC 21 February 2013                Item 9.2.12

OMC 27 October 2011                 Item 9.1.4

OMC 29 October 2009                 Item 9.3.1

SMC 29 January 2015                             Item 9.2.1

 

Kimberley Joint Development Assessment Panel

The JDAP for the Kimberley considers all DAP applications received by the Shires of Broome, Halls Creek, Derby/West Kimberley and Wyndham East Kimberley. When an application is received for development proposed within the Shire of Broome, in addition to the three (3) specialist members appointed by the Minister for Planning, the assessment panel will also comprise two (2) local representatives for Broome nominated by the Local Government.

 

Any application for development having a value of $10 million or more is required to be determined by the DAP and the proponents of any development having a value of $2 million or more can elect to have a development determined by the DAP. Certain developments are excluded from consideration by the DAP regardless of the development value. Excluded development includes single houses and associated incidental development and grouped or multiple dwelling developments of less than 10 dwelling units.

All development applications are to be made to the local authority and where the application is to be determined by the DAP there is an additional application form and an additional application fee. The additional application form and fee is remitted to the Department of Planning.

 

Recent changes to the DAPs

 

With a view to ensuring that the DAP system remains flexible and responsive, the DoP announced amendments to the Planning and Development (Development Assessment Panel) Regulations 2011 in October 2016. Following a Parliamentary Inquiry in 2015, the largely administrative amendments were informed by extensive consultation and seek to increase the transparency and accountability of the DAP process. The amended Regulations came into effect on 1 February 2017, and whilst the full extent of changes are detailed in Attachment 1 – Practice Note 11, key changes of particular relevance are summarised as follows.  

 

•     Providing an option to opt-out of a DAP in favour of a local government assessment for development of industrial warehouses even when over $10 million in value;

•     DAP agendas to be published at least seven days before a meeting - instead of the current five days - to provide greater advance notice to the public;

•     Local governments will be required to proactively contact each person who has provided a written submission in relation to a DAP application, to inform them of when the meeting will take place;

•     Responsible authority reports to include more information about why decisions can be made, to ensure that the decision-making process is clearly communicated and can be better understood;

•     Provide proponents with the option to choose between a local government or a DAP when requesting an amendment to a minor aspect of an existing development approval (Form 2); and

•     Changes to the DAP fee structure.

 

Changes have also been made to the term of appointment of DAP members. This change was made as local government elections are held every 2 years for half of the Council. If the local government DAP members’ terms also expire after 2 years, then situations can arise where there is a period of time in which no local government Councillors have been formally appointed to the DAP.

 

To address this, Regulation 29(2) has been amended to provide that a DAP member can be appointed for a term of up to 3 years, rather than 2. This will allow local government DAP members who retain office as local councillors after an election to remain in place as a DAP member until they can be formally reappointed.

 

Eligibility and Role of Nominated Members

 

Currently the JDAP comprises the following members and alternate members for Broome:

 

-     Chris Mitchell (Member)

-     Harold Tracey (Member)

-     Desiree Male (Alternate Member)

-     Bruce Rudeforth (Alternate Member)

 

As detailed above, the term of current DAP member appointments expire on 26 April 2017. Following receipt of all local government nominations, the Minister for Planning will consider and appoint nominees for up to a three-year term, expiring on 26 April 2020.

 

All appointed local members will be placed on the local government member register and advised of DAP training dates and times. It is a mandatory requirement, pursuant to the DAP Regulations, that all members attend training before they can sit on a DAP and determine applications.

 

All nominated members who have not previously undergone training will be required to complete mandatory training before undertaking any DAP duties. The training is organised by the DoP who have advised such training can be offered, should a DAP application be received, prior to the DAP meeting.

 

COMMENT

 

The DoP has advised the appointment of all Local Government Development Assessment Panel (DAP) members expire on 26 April 2017. The Shire of Broome has been requested to provide nominations no later than Friday 27 February 2017.

 

This report recommends Council nominates two members and two alternative members to the DAP and advises the Minister accordingly. In accordance with the recent amendments to the Regulations, the recommendation reflects that the term of appointment should be three years.

 

CONSULTATION

 

The selection of nominated DAP members is not required to be advertised by Council.

 

STATUTORY ENVIRONMENT

 

Planning and Development Act 2005

171D.         Constitution, procedure and conduct of DAPs

      (1)     The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or that are necessary or convenient to be prescribed, for the establishment and functioning of DAPs.

      (2)     Without limiting subsection (1), regulations may be made about the constitution, procedure and conduct of DAPs, including but not limited to regulations about the following —

                 (a)     the total number of persons who are to be on a DAP;

                 (b)     the qualifications to be held by each person on a DAP;

                 (c)     the procedure to be followed for nominating and appointing DAP members;

                 (d)     the remuneration and allowances payable to DAP members;

                 (e)     the term of office of DAP members;

                   (f)     the removal of DAP members;

                 (g)     compiling and maintaining a register of persons who are eligible to be DAP members;

                  (h)     the paid training of persons appointed to be DAP members;

                   (i)     procedures at DAP meetings;

                   (j)     the conduct of DAP members.

      (3)     The qualifications to be held by a person on a DAP may be specified in the regulations by reference to one or more of these —

                 (a)     an office or position;

                 (b)     an educational qualification;

                 (c)     a type or level of knowledge;

                 (d)     a type or level of experience.

 

Planning and Development (Development Assessment Panel) Regulations 2011

Part 4 — Development assessment panels

 

25.     JDAP members

 

(1)          The members of a JDAP, at any meeting of the JDAP to determine or otherwise deal with a development application or an application to amend or cancel a determination of the JDAP, are —

(a)         the 2 local government members included on the local government register for the relevant local government in relation to the development application; and

(b)         3 persons appointed to the JDAP as specialist members.

 

(2)          In subregulation (1)(a) —

              relevant local government, in relation to a development application, means the local government of the district in which the land to which the development application relates is situated.

 

(3)          The specialist members must be appointed in writing by the Minister.

(4)          Regulation 37 applies to the appointment of specialist members.

 

26. JDAP local government member register

 

(1)          The Minister must cause to be established and maintained a register of local government members of JDAPs.

 

(2)          Subject to subregulation (4), the register must include, for each local government of a district for which a JDAP is established, the names of 2 members of the council of the local government.

 

(3)          Whenever it is necessary to include a member of a council of a local government on a local government register under subregulation (2), the Minister must —

(a)         in writing, request the local government to nominate a member of the council of the local government for inclusion on the register; and

(b)         unless subregulation (4) applies, include on the register the name of the person nominated.

 

(4)          If, within 40 days after the date on which the Minister makes a request under subregulation (3) or such longer period as the Minister may allow, the local government fails to nominate a person for inclusion on the local government register in accordance with the request, the Minister may instead include on the register a person who is an eligible voter of the district of the local government.

 

(5)          For the purposes of subregulation (4) a person is an eligible voter of a district if that person is eligible under the Local Government Act 1995 section 4.29 or 4.30 to be enrolled to vote at elections for the district.

 

POLICY IMPLICATIONS

 

Nil.

 

FINANCIAL IMPLICATIONS

 

Nil.

 

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

 

A preserved, unique and significant historical and cultural heritage of Broome

 

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

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council: 1.       Nominates Cr______________________ and Cr ____________________ as its Development Assessment members for the term expiring 26 April 2020; 2.       Nominates Cr _______________________ and Cr ____________________ as its alternative Development Assessment Panel members for the term expiring 26 April 2020; and 3.       Requests the Chief Executive Officer to submit nominations to the Minister for Planning.

 

Attachments

1.	Practice Note 11 - Changes to DAP Regulations

  

Item 9.2.4 - DEVELOPMENT ASSESSMENT PANEL (DAP) NOMINATIONS OF MEMBERS AND ALTERNATE MEMBERS

 

 

 

 

 

 

 

 

 

9.2.5      PROPOSED WELCOME TO COUNTRY SIGNS - GREAT NORTHERN HIGHWAY LOCATION/ADDRESS:                            Great Northern Highway APPLICANT:                                              Nyangumarta Warrern Aboriginal Corporation FILE:                                                           GRE-1/GEN AUTHOR:                                                   Manager Planning & Building Services CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Director Development Services DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    27 January 2017

 

SUMMARY:         An application for development approval to install three signs on the Great Northern Highway has been received. The signage is proposed at the southern and northern entrance of the Nyangumarta determination area in addition to a sign to signal the entrance to the ‘Nyangumarta Highway’ (also known as the Kidson Track). The application is referred to Council as it seeks a variation to the Shire’s Local Planning Policy 8.17 - Signs (LPP 8.17). This report recommends that the signage as proposed be approved.

 

 

BACKGROUND

 

Previous Considerations

 

Nil.

 

Description of the Proposal

 

Approval is being sought for the placement of three signs within the Great Northern Highway road reserve. Two signs are ‘welcome to country signs’ and will be positioned at the entrance point to the Nyangumarta Native Title determination area. 

 

The first sign is proposed at the southern-most entry point to the Shire and the second sign is proposed for approximately 28km north-east of Sandfire Roadhouse. These two signs will display the same message and will advise people that they are entering Nyangumarta country.

 

The third sign will be a double-sided sign and will be positioned at the start of the ‘Nyangumarta Highway’ or the track commonly known as the Kidson Track (which is approximately 1.4km to the east of the Eighty Mile Beach turn-off). The sign is proposed to make travellers aware of the track’s location and also to advise how permits for access can be obtained.

 

Details of all three signs are provided in Attachment No 1.

 

COMMENT

 

The application seeks a variation to LPP 8.17 as it proposes the erection of signage within a road reserve. Both signs would fall within the ‘sign not permitted’ section of LPP 8.17, in that they are signs that are not erected within or on lot boundaries.  Officers do not have delegated authority to approve development applications for signs in variation to LPP 8.17.

 

In considering this application, the objectives of LPP 8.17 must be referenced. The relevant objectives are set out below:

 

1.       Coordinate and control signage within the Shire of Broome;

3.       Ensure the siting, design and general appearance of advertising does not detract    from the visual amenity and character of the Shire; and

4.       To avoid a proliferation of signs on individual sites and building.

 

Based on the above objectives of LPP 8.17, it is considered that this application for signs within the Great Northern Highway can be supported for the following reasons:

 

·    The signs are not traditional advertising signs and the purpose of the signs is to inform people that they are entering Nyangumarta country. This is not considered to establish a precedent which would lead to the submission of applications for other advertising signs in similar locations, and therefore would not lead to the proliferation of signage.

·    Two signs are proposed over a distance of approximately 140km, which is not considered to detract from the visual amenity nor result in the proliferation of signage. 

·    The Great Northern Highway road reserve is 150m in width. This limits the ability of the applicant to achieve compliance with LPP 8.17 because if the signs were placed on the lot boundary, they would not be visible to passing traffic.

·    The signs would increase community awareness that they are entering Nyangumarta country and also the location of the ‘Nyangumarta Highway’ or Kidson Track.

 

The welcome to country signs are proposed to be 2.4m x 1.2m in dimension with a total area of 2.88sqm and the ‘Nyangumarta Highway’ sign is proposed to be 1.8m x 0.8m in dimension with a total area of 1.44sqm.  The proposed sizing will be similar to Main Roads directional signage for service stations and the like, which are generally 2.4m in width and can vary from 0.45m to 1.2m in height. The Shire has previously approved two welcome to country signs for the Karrajarri people which were 1.5m x 1m in dimension. While these signs are larger, given the distance that they are separated and that their dimensions are similar to the typical MRWA road side directional sign, the proposed sizing of the signs are considered appropriate. 

 

Given the above points, it is recommended that the application for the signs is conditionally approved.

 

CONSULTATION

 

Nil. The applicant has submitted copies of communication from Main Roads WA where consent is given to the placement of the signs within the Great Northern Highway road reserve.

 

STATUTORY ENVIRONMENT

 

Planning and Development Act 2005

 

Local Planning Scheme No 6

 

POLICY IMPLICATIONS

 

Local Planning Policy 8.17 – Signs

 

FINANCIAL IMPLICATIONS

Nil.

 

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:

 

 

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

 

A preserved, unique and significant historical and cultural heritage of Broome

 

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

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council approves the application for three freestanding signs within the Great Northern Highway, Eighty Mile Beach, subject to the following condition: 1.       Development must be carried out in compliance with the plans and documentation listed below and endorsed with the Council's stamp, except where amended by other conditions of this approval.   Plans & Specifications   P1 (Sign Description, Sign Elevation and Location Plan) as received by the Shire on 14 December 2016.

 

Attachments

1.	Sign Details

  

Item 9.2.5 - PROPOSED WELCOME TO COUNTRY SIGNS - GREAT NORTHERN HIGHWAY

 

 

Attachment to application for development approval

Installation of ‘Welcome to Nyangumarta country’ signs along the Great Northern Highway

 

Supplier: BK Signs, Broome

Installation: Nyangumarta rangers under the supervision of ranger coordinator

 

1)    2 ‘Welcome to country’ signs with following details:

·    Dimensions: 2.4m x 1.2m

·    2 posts & brackets

·    Top of sign flush with top of post, approximately 2.5-3m above ground

·    Posts will be 1-1.5m into the ground (depending on nature of soil); holes will be dug with petrol auger, posts secured with gravel and light concrete

·    Distance from edge of pavement/shoulder: according to local regulations

·    Locations

i.  Western boundary, coordinates  19°59'21.20"S 120° 3'52.80"E, north of the road

ii. Eastern boundary, coordinates  19°40'47.33"S, 121°15'49.78"E, south of the road

iii.  Note: final locations are flexible and will depend on road safety issues, vegetation and soil. Locations can be adjusted inside Nyangumarta country.

 

2)    1 double sided directional sign with following details:

·    Dimensions: 1.8m x 0.8m

·    2 posts and brackets

·    Top of sign flush with top of post, approximately 1.5-2m above ground

·    Posts will be approximately 1m into the ground; holes dug with auger, posts secured with gravel and light concrete

·    Distance from edge of pavement/shoulder according to local regulations

·    Location:

i.  Coordinates  19°50'2.54"S 120°41'32.15"E

ii. preferably north of the road, opposite the turn off to Kidson track/Wapet road

 

9.2.6      DRAFT POLICY FOLLOWING PUBLIC COMMENT PERIOD - CONSULTATION ABORIGINAL HERITAGE LOCATION/ADDRESS:                            N/A APPLICANT:                                              Shire of Broome FILE:                                                           PLA97 AUTHOR:                                                   Manager Planning & Building Services CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Director Development Services DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    27 January 2017

 

SUMMARY:         The Shire of Broome is recognised as having a rich cultural heritage, with significant Aboriginal cultural heritage present in the Shire. As the Shire performs a number of functions which can interact with Aboriginal cultural heritage, a policy has been drafted to guide how and when the Shire will consult with key stakeholders in this regard. This is proposed to ensure that Aboriginal cultural heritage is taken into account when both planning for and undertaking works. Council adopted the draft Policy at the August 2016 Ordinary Meeting of Council for the purposes of seeking public comment. The 60 day public comment period has concluded and this report presents the submissions received and recommends that Council adopt the Policy. It is also recommended that Council commits to review the Policy once the Memorandum of Understanding has been finalised in accordance with the Yawuru Indigenous Land Use Agreement (ILUA).

 

 

BACKGROUND

 

Previous Considerations

 

OMC 25 August 2016                             Item 9.2.1

 

History

 

At the Ordinary Meeting of Council in May 2014, Council adopted a Local Planning Policy – Public Consultation Planning Matters (LPP). This LPP was prepared to guide when the Shire will undertake public consultation on planning matters and also the form of advertising that should be undertaken. At this time, the Council agenda item noted that the LPP does not deal with consultation regarding Aboriginal Cultural or Heritage Matters and that a separate Policy would be prepared in this regard.

 

Since this time, Officers have been researching and investigating with a view to developing a corporate Policy which sets out the process for consulting on Aboriginal Heritage.  As a result, the draft Consultation – Aboriginal Heritage policy has been developed (Policy). The objectives of the Policy are to:

 

·    guide where the Shire will advise and consult with Aboriginal persons to gauge whether a Development Strategy, Public Works or Shire Development proposal may impact upon Aboriginal heritage;

 

·    establish the process the Shire will follow when a Public Works or Shire Development proposal is to be referred for consultation and how comments received will be considered; and

 

·    detail the requirements for consultation based on the level of interaction with Aboriginal heritage.

 

This Policy has been prepared further to Action 2.1.1.1 in the Corporate Business Plan which requests that a policy be developed regarding cultural heritage consultation with traditional owners and other stakeholders.

 

The draft Policy was considered at the Ordinary Meeting of Council on 25 August 2016 where Council resolved:

That Council:

1.       Adopts the draft Policy – Consultation – Aboriginal Heritage, as set out in Attachment No 1 for the purposes of seeking public comment for a period of 60 days. 

2.       Adopts the Community Engagement Framework as set out in Attachment No 2 to guide the consultation to be undertaken during the public comment period. 

 

The draft Policy was advertised for public comment in accordance with the adopted Community Engagement Framework. At the conclusion of the public comment period two submissions were received. The Shire also received correspondence from Nyamba Buru Yawuru Ltd (NBY) prior to the formal comment period commencing. All comments received are provided in Attachment 1 – Schedule of Submissions. 

 

COMMENT

 

The Shire of Broome’s Strategic Community Plan 2015-2025 recognises that history, identity and culture is the third most highly valued aspect of living in the Shire of Broome, and this relates to a living Indigenous culture and traditions and the connection to country. Further, the Shire of Broome Local Planning Strategy (Strategy) recognises that the Shire has a rich cultural heritage encompassing many different cultural groups, including Aboriginal culture. The Strategy acknowledges that it is important to protect and manage the significant heritage of the Shire which is valuable to the region’s inhabitants and acknowledged both nationally and internationally.

 

In response to the recognised importance of Aboriginal cultural heritage to the Shire, Council through the Corporate Business Plan has requested that a policy be prepared regarding cultural heritage consultation.  Shire Officer’s have prepared the draft Policy as set out in Attachment 2. This draft Policy was advertised for public comment for a 60 day period in accordance with the adopted community engagement plan. At the conclusion of the public comment period submissions were received as follows:

 

·    Department of Aboriginal Affairs (DAA); and

·    Goolarabooloo Millibinyarri Indigenous Corporation (GMIC) on behalf of the Goolarabooloo people.

 

Prior to Council’s adoption of the Policy for public comment, the Shire also forwarded a copy of the draft Policy to NBY. While comments were requested from NBY during the public comment period, no submission was received.  The matters that NBY raised in the original letter received prior to the public comment period is included in the schedule of submissions.

 

A review of the key points raised in the comments received are set out below.

 

NBY comments

 

NBY in the initial feedback to the Shire expressed concern with the draft Policy. This principally related to the provisions contained within the ILUA and the Shire’s approach in preparing the draft Policy.

 

NBY have expressed that the starting point for discussions on heritage issues in the Yawuru determination area should be clause 16.2 of the ILUA which states the following:

 

16.2   Memorandum of understanding

 

a)  The Parties agree to enter into a memorandum of understanding within 12 months of the Registration Date (Memorandum of Understanding) under which, in respect to heritage issues arising from time to time in any area within the outer boundaries of the Determination Area, the Parties, inter alia, shall agree:

i.    for the purpose of protecting and preserving heritage, the Yawuru Community has the primary and principal interest and rights;

ii.    Yawuru RNTBC must be consulted about heritage issues in the first instance; and

iii.   to consult each other and deal in good faith in accordance with the provisions of the Aboriginal Heritage Act 1972.

b)  The State will disseminate the Memorandum of Understanding to all relevant Western Australian agencies for observance by them when dealing with heritage issues that relate to all areas within the outer boundaries of the Determination Area.

 

NBY also referenced clause 13.2 of the PBC ILUA, which states the following:

 

13.2   Planning processes

 

Where planning processes are undertaken by the State agencies or local government in respect of any portion of the Determination Area, the State and the Shire (as applicable) shall support Yawuru RNTBC participation and consultation.

 

Overall, NBY expressed that the draft Policy does not comply with clause 16.2 of the ILUA because the process of developing the Policy did not include the relevant parties to the PBC ILUA. Further NBY expressed the following concerns with the Policy:

·    It makes no reference or acknowledgment of the relevant clauses of the PBC ILUA; and

·    It does not recognise the primacy of the Yawuru Community’s principal rights and interests in protecting and preserving heritage in the determination area.

 

In relation to these points raised by NBY, Officers recommend the Policy still be progressed for the following reasons:

 

·    It is acknowledged that the preparation of the MOU referenced in clause 16.2 of the ILUA remains outstanding. The draft Policy is not intended to replace or interfere with the development of the MOU referenced in the ILUA, but rather establish a clear and transparent process that can be followed by Shire Officers now.

·    The Policy can and will be reviewed and amended once the MOU is developed.

·    The draft Policy has been prepared for the whole Shire area, which extends beyond the outer boundaries of the Yawuru Determination Area. It is intended to guide the Shire Officers in their activities in all parts of the Shire. Given the high level of importance the Shire places on Aboriginal Heritage, it is seen as critically important that the Shire has something in place to ensure the Shire’s activities properly recognise Aboriginal Heritage at an early stage. Therefore, the draft Policy is needed now, and should not be delayed any further.

 

During the formal 60 day public comment period, Shire Officer’s meet with officers from NBY to seek feedback and input into the draft Policy. During the discussions, NBY reaffirmed the concerns previously communicated with the Policy, as cited above.  They advised that the Yawuru Implementation Committee has been reformed to progress with a number of outstanding matters in the ILUA, including the preparation of the MOU referenced in clause 16.2. More recently, a Yawuru Implementation Committee meeting has been held and a draft version of a MOU previously prepared by the DAA was circulated. At the conclusion of the Yawuru Implementation Committee meeting it was agreed that the DAA and NBY would work together to update the MOU with assistance from the State Solicitors Office.

 

A timeframe for when the MOU will be drafted or circulated has not been provided. While it is acknowledged that any matters that may form part of the MOU may require amendment to the draft Policy, given there is no known timeframe it is recommended that Council adopt the Policy to guide Shire operational practices now. This is recommended so the Shire has a framework to ensure that it is proactive in identifying and addressing heritage considerations. Further, it is recommended that Council commits to review the Policy once the MOU has been finalised.

 

DAA Comments

 

The DAA has advised that it supports the Shire in formalising a process that will enhance the protection of Aboriginal heritage during the planning stages, provide the opportunity for consultation and also promote protection or mitigation measures where development is planned to occur. The DAA has raised a number of points for consideration that are set out below:

 

Consultation with knowledge holders

 

The DAA stated that when views are being sought for planned activities that may impact Aboriginal heritage, along with Determined Native Title Holders and/or Registered Native Title claimants, those people who have knowledge for a specific Aboriginal heritage place should also be consulted. For already reported Aboriginal heritage places, people with specific knowledge are listed as ‘knowledge holders’ in the DAA database and may not necessarily be part of a Native Title determination or claimant group.

 

This issue is noted by Shire Officers and recognised in the Policy. Under clause 2.6, when the Shire is undertaking the detailed design of public works or Shire development and the works fall within an a registered Aboriginal Heritage Site, the Shire will forward the proposal to DAA and request details of the organisations and/or persons that should be consulted. At this stage, DAA will advise who the knowledge holders are and the Shire will undertake consultation with those persons. With regard to the preparation of Development Strategies (clause 1.1) and Shire developments at the concept phase (clause 2.4) the Policy outlines that consultation will be undertaken with Determined Native Title Holders or Registered Native Title claimants. This is consistent with the Yawuru PBC ILUA and for works outside of the Yawuru Determination Area, will mean that the Shire will be consulting directly with PBC (and in some limited circumstances claimant groups), which is considered appropriate as these bodies have demonstrated that they are the traditional custodians of the claimed area as a part of the Native Title processes. 

 

Shire officers have held further discussions with the DAA’s heritage team to clarify the comments received in this respect. In discussions, the DAA again reaffirmed its support for the Policy and advised that the purpose of this comment was to make sure that the Shire was aware of the difference between knowledge holders and Native Title holders/claimants. The DAA advised that it is in the Shire’s discretion as to how it seeks to engage with members of the community when preparing Development Strategies and concept plans for public works and/or Shire development. It was outlined that when it comes to the detailed design phase of works proposals, if a section 18 consent under the Aboriginal Heritage Act 1972 (WA)(AH Act) is required, the Shire must demonstrate that it has consulted with any registered knowledge holder in addition to Native Title holders/claimant groups.

 

Overall it is considered that the Policy reflects the practices that are statutory requirements under the AH Act. The consultation proposed at the Development Strategy and concept design phase goes beyond what would be required by the AH Act. As such it is not recommended that any amendments are made to the Policy in this regard. 

 

Definition of low ground disturbance activity

 

The Department has raised concern with the use of the definition of ‘low ground disturbance activity’ as a number of the activities listed (such as removing soil and rock samples and maintenance of existing roads, culverts, etc) may in some circumstances contravene section 17 of the AH Act or may require consent under Regulation 10 of the Aboriginal Heritage Regulations 1974.

 

The definition contained in the Policy was adapted from the definition included in the Government Standard Heritage Agreement (prepared by the Department of Premier and Cabinet), with the exception that the listed activities are only considered to be low ground disturbance when undertaken in an area which has previously been disturbed or are not significant or major works (which are defined in the DAA’s Aboriginal Heritage Due Diligence Guidelines (Due Diligence Guidelines)). This is consistent with the advice provided by the DAA in the Fact Sheet distributed for the reassessment of DAA 30274 (LSC11) which sets out that in built-up areas in Broome which have previously been cleared for these purposes will not require any additional approvals under the AH Act.

 

Shire Officers sought further clarification from officers at the DAA with regard to this comment. In these discussions, Shire Officers relayed that an activity would only be considered low ground disturbance where it was within an existing disturbed footprint or works were not significant or major. It was conveyed that this definition was included in the Policy to clarify that for certain activities the Shire would not be undertaking consultation of any form (i.e. grading and existing road within the footprint of the road or undertaking weed management within an existing drain and so on). It was acknowledged by DAA officers that this would be consistent with the approach in the Due Diligence Guidelines.  

 

Given the above and as the Policy is consistent with the practices recommended in the Due Diligence Guidelines, it is not proposed to amend the Policy in this regard.

 

GMIC Comments

 

GMIC have raised a number of points in relation to the draft Policy, which are all summarised and addressed in the Attachment No 1. Of particular note, GMIC raised the following in their submission:

 

Difference between knowledge holder and native title holder

 

GMIC raised that there is a difference between cultural knowledge holders and a native title holder and PBC. They may be synonymous, or they may not be depending upon the circumstances. They submit that the Policy does not bear this difference in mind.

 

As set out in the comments under the ‘DAA Comments’ heading above, this distinction has been recognised in the Policy when the Shire is preparing detailed designs (clause 2.6 onwards).

 

Development strategies

 

GMIC submit that Goolarabooloo (especially the responsible law bosses) must be consulted in relation to activities occurring in the Northern Tradition areas within the Rubibi determination area.  Further, informants for Aboriginal sites and places, where they are recorded, should be consulted in relation to any matter affecting a site or place. 

 

While the Shire notes that there is a difference between a ‘knowledge holder’ and Native Title Holder/Claimant, the Policy has been drafted so that at the higher level planning process (ie. the preparation of Development Strategies and concept plans), consultation will be undertaken with the Native Title Holders or Claimants. This is recommended as these bodies have demonstrated that they are the traditional custodians of the claimed area as a part of the Native Title process. Further, from an administration perspective, this is considered to be more practical as information on Native Title Holders/Claimant groups is publicly available. 

 

Low ground disturbance activities

 

GMIC raise concern in relation to Clause 2.3 of the Policy, in that no consultation will be undertaken for Low Ground Disturbing Activities.

 

This is addressed in the DAA comments section, see above.

 

Consultation with Goolarabooloo

 

Regarding Clauses 2.10 and 2.11 of the Policy, GMIC state that for all land which does not fall within a registered site but is between the Beagle Bay boundary and Dampier Creek, Goolarabooloo must be consulted. They submit that any comment from the Goolarabooloo People about the impact of the proposed activity on Aboriginal cultural significance should be dealt with separately from the wider community engagement program.

 

This contention is not supported. The Policy has been structured in such a manner that for higher level planning phases (the Development Strategy and concept planning phases), early engagement/consultation occurs to ensure that Aboriginal heritage is addressed and potential conflicts or damage to heritage is avoided. When it comes to undertaking the detailed design for the specific works or activity, known impacts on Aboriginal heritage should be avoided. At the detailed design level, unless the site falls within a registered Aboriginal Heritage Site or would be in an area that under the Due Diligence Guidelines is designated as medium or high risk, then it is not considered that consultation is required.

 

Summary

 

Detailed consideration has been given to the comments received in relation to the Policy. While it is noted that a MOU required by the ILUA remains outstanding, in the interim period this Policy is considered to be a strong guiding document for the Shire and its stakeholders in relation to how the Shire will mitigate the risk of its works or activities impacting on Aboriginal heritage.  The processes established in the Policy are considered robust and reasonable in terms of allowing for meaningful consultation, while being achievable taking into account Shire resources. 

 

Following the public comment period, it is recommended that two minor amendments are made to the Policy:

 

·    The definition of ‘Aboriginal Heritage Site’ is updated to be consistent with the Due Diligence Guidelines.

·    The definition of ‘Previously Surveyed Area’ is removed from the Policy as it is not mentioned in the Policy and does not need to be defined.

 

The proposed changes are shown as tracked changes in Attachment No 2.

 

It should also be noted that the Policy establishes a minimum level of consultation. There may be circumstances where higher levels of engagement or consultation occur, including seeking participation of Aboriginal persons on working groups. Examples of such projects would include the master planning being undertaken for the Town Beach area or the Chinatown Cultural Interpretative Centre working group. 

 

It is therefore recommended that Council adopt the Policy. As per the comments above, given that a MOU is currently being prepared further to the ILUA, it is recommended that Council commit to reviewing the Policy once the MOU has been finalised. 

CONSULTATION

 

In preparing the draft Policy, Officers have consulted with the Shire’s Infrastructure Services section and also sought preliminary comments from the Shire’s solicitors and the DAA.

 

Consultation with the community was undertaken in accordance with the adopted community engagement plan, which included the following:

·    Notification and copies of the Policy available on the website

·    Direct mail out to identified primary stakeholders which included Determined Native Title Holders, registered Native Title Claimants, Department of Premier and Cabinet and DAA.

·    Advertisement in the local newspaper targeting feedback from the primary and secondary stakeholders (general community).

The public comment period formally commenced on 8 September 2016 and went for 60 days, concluding on 7 November 2016. A summary of the submissions received and the proposed Shire responses to the points raised is provided in Attachment 1 – schedule of submission.

 

Also, as a part of finalising the Policy, further consultation was undertaken with the Shire’s Management Coordination Group. At this meeting concerns were expressed about the potential implications that the consultation could have upon the timing and project delivery if the Policy is adopted. While it is noted that from an operational perspective the Policy may have implications on how the Shire plans and implements its works scheduled, Aboriginal heritage is an important consideration that must be addressed. 

 

STATUTORY ENVIRONMENT

 

Local Government Act 1995

            

2.7. Role of council

 

(1)         The council –

(a)         governs the local government’s affairs; and

(b)         is responsible for the performance of the local government’s functions.

 

(2)         Without limiting subsection (1), the council is to -

(a)         oversee the allocation of the local government’s finances and resources; and

(b)         determine the local government’s policies.

 

POLICY IMPLICATIONS

 

Nil.

 

FINANCIAL IMPLICATIONS

 

Nil.

 

RISK

 

As set out in the comments above, the Shire is recognised as having rich Aboriginal heritage which is greatly valued by the community. This Policy is considered to reduce the risk that Shire operations could have a detrimental impact upon Aboriginal heritage by ensuring that an appropriate level of consultation is undertaken. Further, the Policy will establish clear direction to the relevant Officers at the Shire as to the level of consultation expected to be undertaken, which allows for more informed project management and reduces the risk of delays in the delivery of projects.

 

STRATEGIC IMPLICATIONS  

 

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

 

Effective communication

 

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 preserved, unique and significant historical and cultural heritage of Broome

 

Council is able to mobilise resources to deliver municipal service to indigenous communities that are compliant, effective and within Council’s capacity.

 

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

 

Key economic development strategies for the Shire which are aligned to regional outcomes working through recognised planning and development groups/committees

 

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

 

Sustainable and integrated strategic and operational plans

 

Effective community engagement

 

Improved systems, processes and compliance

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council: 1.       Adopts the Policy – Consultation – Aboriginal Heritage, with minor amendments as set out in Attachment 2; and 2.       Upon the finalisation of the Memorandum of Understanding required under Clause 16.2 of the Yawuru PBC Indigenous Land Use Agreement, commits to undertaking a review of the Policy.

 

Attachments

1.	Schedule of Submissions
2.	Policy: Consultation - Aboriginal Heritage

  

Item 9.2.6 - DRAFT POLICY FOLLOWING PUBLIC COMMENT PERIOD - CONSULTATION ABORIGINAL HERITAGE

 

 

 

#	Name	Date	Submission	Staff Comments	Recommendations
1.	NBY (Prior Engagement)		1.    The parties to the ILUA as I am sure that you are aware, are the PBC, NBY, the State of WA, Minister of Lands, Conservation Commission, CALM and the Shire of Broome. In our view, the starting point for any discussions in relation to heritage issues in the Yawuru Determination area is Clause 16.2 of the PBC ILUA which states that the parties agree to enter into a MOU (within 12 months) under which, for the purpose of protecting and preserving heritage, the Yawuru Community has the primary and principal interests and rights, Yawuru RBTBC must be consulted about heritage issues in the first instance and the parties are to consult each other and deal in good faith in accordance with the provisions of the Aboriginal Heritage Act 1972 (AHA). 2.    Clause 13.2 of the PBC ILUA is also important and related to clause 16.2 because it provides that “where planning processes are undertaken by State Agencies or local government in respect of any portion of the Determination Area, the State and the Shire (as applicable) shall support Yawuru PBC participation and consultation”. The use of word shall specifies a mandatory obligation on the State and the Shire in this regard. 3.    I consider that the Shire’s Draft Policy does not comply with Clause 16.2 of the PBC ILUA because essentially the process of developing it did not include the relevant parties to the PBC ILUA, makes no reference or acknowledgment of the relevant clauses of the PBC ILUA and notably does not recognise the primacy of the Yawuru Community’s principal rights and interests of protecting and preserving heritage in the determination area.         4.    Unfortunately the Draft Policy is presented as a fait accompli and inappropriately gives primacy to “public comment” for 60 days after endorsement by the Shire Council on the 25 August 2016, followed (almost by afterthought) by a formal referral to Yawuru for feedback and comment from “early September 2016 to approximately 7 November 2016”. This approach in your email is clearly contrary to the sprit of the ILUA and relegates the Yawuru in the consideration of heritage issues in the determination area. 5.    Clause 16 of the ILUA also prescribes that the State of WA will disseminate the MOU to all relevant WA agencies for observance by them when dealing with heritage issues that relate to all areas within the outer boundaries of the Determination Area. This is clearly after the parties to the PBC ILUA have negotiated and entered into a binding MOU. Unfortunately the Shire’s Draft Policy clearly has excluded the State and other agencies from negotiations and agreeing its terms and conditions although it adopts key documents such as the Aboriginal Heritage Due Diligence Guidelines and the Government Standard Heritage Agreement as an integral to the Policy. A MOU agreed between the parties to the PBC ILUA however was clearly intended to operate as a stand-alone agreement to be complied with by the Shire and the State agencies outside of other established policies and standard heritage agreements. 6.    The matter which I raise above are threshold issues which must be addressed by the parties to the PBC ILUA in accordance with clause 16 and regrettably the Shire’s approach and Draft Policy is a unilateral departure from the PBC ILUA which could also be a potential breach of the agreement.                 7.    However, I believe that we can work through these issues to get the negotiations on the right footing, aligned and in compliance with the PBC ILUA and welcome constructive discussion with the Shire in relation to these matters. I request that you withhold any further action in relation to obtaining approval from you Council on the 25 August 2016 to provide us the opportunity to move positively in developing an agreeable MOU with the relevant parties.	1.   It is acknowledged that the preparation of the MOU referenced in clause 16.2 remains outstanding. The draft Policy is not intended to replace or interfere with the development of the MOU referenced in the ILUA, but rather establish a clear and transparent process that can be followed by Shire Officers in the intervening period while the MOU is being developed.           2.   Noted.                3.   The draft Policy has been prepared for the whole Shire area, which extends beyond the outer boundaries of the Yawuru Determination Area. It is intended to guide the Shire Officers in their activities in all parts of the Shire.   The provisions of the Policy highlight that in all stages the Shire will consult with the Determined Native Title Holders, giving primacy to the Yawuru people for matters within the Yawuru Native Title Determination Area. 4.     Given the high level of importance the Shire places on Aboriginal Heritage, it is seen as critically important that the Shire has something in place to ensure the Shire’s activities properly recognise Aboriginal Heritage at an early stage. Therefore, the draft Policy is needed now.        5.   Once the MOU has been developed and agreed to by all parties forming part of the ILUA, the Shire will review the Policy as it applies to the Yawuru Determination Area.                            6.   In the absence of the MOU, it is a high priority to have established Council direction (through the Policy) ensuring that Aboriginal Heritage is identified and addressed as part of Council’s activities. While the MOU is still being developed, the Shire does not consider the adoption of this Policy to be a breach of the ILUA. The Shire wants to ensure that its practices incorporate Aboriginal cultural heritage and considers a Policy to be an appropriate mechanism to do this. The Policy can be reviewed once the MOU is finalised. 7.   The Shire will participate in the preparation of the MOU through the Yawuru ILUA implementation committee and it is recommended that Council commit to reviewing the Policy once the MOU is finalised.	That the submission be noted.   The Council commits to reviewing the Policy and incorporating any changes as required following the finalisation of the MOU which is to be prepared further to clause 16.2 of the ILUA.
2.	Department of Aboriginal Affairs	23/10/2015	1.    The DAA supports the Shire of Broome formalising a process that will enhance the protection of Aboriginal heritage during the planning stages, provide the opportunity for consultation, and also promote protection or mitigation measures when development is planned to occur. 2.    The ‘Public Works and Shire Development’ flow chart on page 11 of the document provides a clear, structured process, which includes requests for comment from the DAA at the appropriate stages of planning. 3.    When views are sought from Aboriginal people in regards to planned activities that may impact Aboriginal heritage, the Shire of Broome should be aware that along with either the Determined Native Title Holders and/or the Registered Native Title claimants for an area, those Aboriginal people who have knowledge for a specific Aboriginal heritage place should also be considered. For already ready reported Aboriginal heritage places, people with specific knowledge about heritage places are listed as ‘knowledge holders’ in the DAA database. Knowledge holders may not necessarily be a part of a Native Title determination or claimant group.                              4.    The section ‘1.0 Preparation of Development Strategies’ (pages 3-4) states that most important element in undertaking consultation is to inform the preparation of the Development Strategy and to ensure that an Aboriginal heritage site or areas of Aboriginal cultural significance are identified and considered. The process to obtain this outcome is described in the draft document as including a 30 day period which may include a workshop where information of the details about an Aboriginal site are expected to be provided. A potential issue may arise for areas where Aboriginal sites are present, but have not yet been reported, a workshop may not be the forum to adequately present information about these places. An outcome of the workshop may include a recommendation for the proponent to undertake a heritage survey where necessary. 5.    It is understood for all new development strategies, Aboriginal people will be provided details of the proposal and the opportunity to comment. The DAA agrees with the proposal to involve Aboriginal people in the consultation process of all new development strategies. 6.    The section 2.3 ‘Shire of Broome public works and shire development’ (page 4) states the Shire of Broome will not undertake any consultation or notification for activities or works which meet the definition of low ground disturbance activity. A number of the low ground disturbance activities listed, such as removing soil and rock samples, drilling using hand held rig or rig mounded on 4WD, maintaining existing roads, culverts, bridges, erosion control activities, may in some circumstances, contravene section 17 of the Aboriginal Heritage Act 1972 or may require consent under Regulation 10 of the Aboriginal Heritage Regulations 1974.                                         7.    The DAA suggests the Shire of Broome, when planning works within a reported Aboriginal heritage place or site, requests information form the DAA about the existing Aboriginal heritage place or site. 8.    The DAA is able to provide on request ‘Open’ or unrestricted site files to the Shire. 9.    ‘Closed’ or restricted files require the consent of the knowledge holder to view the file. This will allow an internal assessment within the Shire of Broome of the relevant considerations and allow a more informed due diligence process before contacting the DAA. 10.  The references throughout the document to the Aboriginal Heritage Due Diligence Guidelines are considered appropriate. 11.  The DAA supports the initiative to formalize the process to consider, protect and avoid impacting Aboriginal heritage, when the Shire of Broome is involved in planning and public works.	1.    Noted.             2.    Noted.        3.    This is noted by the Shire and is recognised in the Policy. Under clause 2.6, when the Shire is undertaking detailed designs of public works or shire development and the works fall within an a registered Aboriginal Heritage Site, the Shire will forward the proposal to DAA and request which organisations and/or persons should be consulted. At this stage DAA can advise the Shire who the knowledge holders are and the Shire will undertake consultation at that point. With regard to the preparation of development strategies (clause 1.1) and shire developments at the concept phase (clause 2.4) the Policy outlines that consultation will be undertaken with Determined Native Title Holders or Registered Native Title claimants. This is consistent with the Yawuru ILUA and for works outside of the Yawuru Determination Area, will mean that the Shire will be consulting directly with PBC, (and in some limited circumstances claimant groups) which is considered appropriate for this stage of the planning process as these bodies have demonstrated that they are the traditional custodians of the claimed area as a part of the Native Title processes.  4.    Noted.                               5.    Noted.          6.    The definition contained in the Policy was adapted from the definition included in the Government Standard Heritage Agreement, with the exception that the listed activities only apply in areas which has previously been disturbed. This is consistent with the advice provided by the Department in the Fact Sheet distributed for the reassessment of DAA 30274 (LSC11) which sets out that activities in developed areas will not require an Aboriginal heritage approval and that areas which have previously been cleared will not require any additional approvals.    The Shire has discussed this comment with officers at the DAA. In the discussion Shire officers relayed as per the definition that an activity would only be considered low ground disturbance where it was within an existing disturbed footprint (i.e. the Shire was grading and existing road within the existing roads footprint or was undertaking weed management within an existing drain). It was acknowledged that this is consistent with the approach in the Aboriginal Heritage Due Diligence Guidelines whereby such works would generally be negligible to moderate disturbance and when undertaken in a built environment or significantly altered environment has a low risk to Aboriginal heritage.   7.     Noted.          8.     Noted.    9.     Noted.          10.   Noted.      11.   Noted.	That the submission be noted.
3	Goolarabooloo Millibinyarri Indigenous Corporation (GMIL)		1.    GMIC makes this submission on behalf of the Goolarabooloo people, including their law bosses. Thank you for inviting us to comment on your draft policy for Aboriginal heritage. 2.    Our country falls across the Rubibi determination areas the Goolarabooloo Family claim area. Goolarabooloo country goes from Gariyan (near Beagle Bay boundary) to Ngellan Ngellangun (Dampier Creek) in the south. In this area, Goolarabooloo (and the law bosses in particular) are culturally responsible for the Northern Tradition. 3.    Goolarabooloo are not against development within the Shire of Broome, and in fact Goolarabooloo worked with the Shire over many years planning, investigating and approving a number of developments. Goolarabooloo must be consulted about activities that will affect their country or disturb the ground of their law or the integrity of the health and wellbeing of their Song Cycle Path. Development must be sustainable from a cultural perspective, as well as from and environmental and an economic perspective. 4.    The Shires policy as a whole is premised upon a narrower definition of Aboriginal cultural heritage than is warranted. The Shire should develop its policy in light of the requirements of the Burra charter and its practice notes. The Shire’s definition of “Aboriginal cultural heritage’ clearly borrows from the Burra’s charter definition, but other critical elements of the Burra Charter are lacking.     5.    There is also a categorical different between a cultural knowledge holder and a native title holder or PBC. They may be synonymous, or they may not be depending upon the circumstances. The draft Policy does not bear this difference in mind. Two practical examples: a.   There are a number of Goolarabooloo people who hold knowledge for the country from Broome to Willie Creek, including the law boss Richard Hunter. Mr Hunter was recognised in the Rubibi determination as one of the law bosses for the Northern Tradition in Yawuru community. Mr Hunter is not a Yawuru native title holder. b.   Some places in the Shire of Broome also have significance under traditional law to people from outside of the Broome area. An examples is the place Billingur (see [60] of Rubibi v Western Australia (no. 5) [2005] FCA 1025).                   6.    Definition of “Aboriginal Heritage Site’ – no such term is defined in the Aboriginal Heritage Act 1972. There is a tension between the statutory concept of a “site” under the AHA and the broader concept of “Aboriginal cultural significance” as defined under the draft Policy. A place can plainly have acute “Aboriginal cultural significance” without meeting the requirements of section 5 of the AHA, and indeed not all places that meet the definitional requirements of section 5 are entered on the Register.  7.    How will the Shire determine whether a place meets the requirements of section 5 of the AHA, particularly in the absence of consultation or a comprehensive prior survey? Entry on the Register is an independent matter.     8.    Definition of “Low Ground Disturbance Activity” & “Previously Survey Area” – as the Burra Charter makes clear, the appropriate process is one which identifies Aboriginal cultural heritage values first, and then determines whether undertaking a particular activity is appropriate. The fundamental principle is “Ask First”. The Shire’s definition of ‘low ground disturbance activity’ is contrary to this, appears to be contrary to the due diligence matrix and also includes a large number of ground disturbing activities which could not reasonably be considered to be low impact even in the abstract.                                         9.    The interrelationship between a ‘previous surveyed area’ and whether an activity is a ‘low ground disturbance activity’ is problematic. A prior survey is usually limited in terms of area, the activities the survey has under consideration, who undertook the survey, the methodology employed and the time when it was undertaken (best practice in 1972, or 1992, is not the same as best practice in 2016). This Shire would leave itself to determine whether an area was “cleared” or not. 10.  Preparation of development strategies – Goolaralooboo (especially the responsible law bosses) must be consulted in relation to activities occurring in the Northern Tradition areas within the Rubibi determination area. North of Willie Creek, Goolarabooloo are registered native title claimants. Informants for Aboriginal sites and places, where they are recorded, should be consulted in relation to any matter affecting the site(s) or place(s). 11.  Goolarabooloo and any informants for affected sites of places, must be included in these workshops.   12.  Shire of Broome Public Works or Shire Development – although the Shire will not be undertaking consultation on behalf of other government agencies, Goolarabooloo suggests that when the Shire is notified of other government authorities or agencies undertaking works within their country the Shire should inform them.   13.  The Shire’s Policy of no consultation in relation to so-called “Low Ground Disturbing Activities” is alarming to the Goolarabooloo. Parts a, b, c, d, e, f, g, h, I, j, k, l, m, n, o, p, q, r, s of the definition are unacceptable. Goolarabooloo always seeks to accompany anyone wanting to undertaken any work on their country, including scientists and researchers or even school projects. This is much for the protection of the country and safety of strangers in country. Genuine consultation, which is aimed at achieving informed consent to activities affecting Aboriginal cultural significance, should be the Shire’s aim, rather than the push towards limited transparency and self-assessment which appears to inform the draft Policy.   14.  Concept Phase – Goolarabooloo (through GIMC) should be included in the consultations for activities occurring between the Beagle Bay boundary and Dampier Creek. 15.  In all cases, including where the work is identified as “not Low Discretion”, Goolarabooloo say that any impact upon Aboriginal Sites or Aboriginal cultural significance should be avoided.          16.  Design Phase – If a proposed Public Work or Shire Development (whether defined as “Low ground Disturbance Activity” or not) falls within an Aboriginal Heritage Site between the Beagle Bay boundary and Dampier Creek, then the Shire of Broome should forward a copy of the proposal to Goolarabooloo. In Goolarabooloo’s experience, DAA administration of the AHA has been negligent and partisan in recent years. DAA has repeatedly preferred development over genuine heritage protection. 17.  For all land, which does not fall within a registered site, but is between Beagle Bay boundary and Dampier Creek, Goolarabooloo must be consulted. Any comment from the Goolarabooloo about the impact of the proposed activity on Aboriginal cultural significance should be dealt with separately from the wider community engagement process. 18.  Aboriginal Heritage Monitors – no matter where works are proposed to be undertaken inside of Goolarabooloo country, or by whom, Goolarabooloo require that somebody onsite to monitor the works as a starting premises. The need for monitoring can be reviewed in light of further detail about the activity or as the activity progresses.           19.  Aboriginal Heritage Surveys – the right people to survey Goolarabooloo country, and to determine the Aboriginal cultural significance of that country and the areas and places within it, are the Goolarabooloo people themselves. 20.  Over may years since its inception, Goolarabooloo have sought protection for the Lurujarri Heritage Trail, including having the Trail entered on to the Municipal Inventory. We understand that Goolarabooloo’s submission was overwhelmingly supported by the Shire of Broome’s development officers, the State assessor and the independent assessor. It was also endorsed by the Arts and Cultural Committee as having an A class rating. Goolarabooloo requests the Shire of Broome to revisit this matter and confirm its support for listing the Trail on the Municipal Inventory.	1.    Noted.        2.    Noted.           3.    Noted, the policy has been provided to guide Shire officers as to when consultation will be undertaken for particular projects and development strategies.            4.    In the development of the Policy the Burra Charter was referenced and considered. The definition of Aboriginal Cultural Significance is consistent with the Burra Charter and the principles within the Policy of seeking to consult with parties and review all available information is consistent with the Burra Charter principle of collecting and analysing information before making decisions. 5.    This is noted by the Shire and is recognised in the Policy. Under clause 2.6, when the Shire is undertaking detailed designs of public works or shire development and the works fall within an a registered Aboriginal Heritage Site, the Shire will forward the proposal to DAA and request which organisations and/or persons should be consulted. At this stage DAA can advise the Shire who the knowledge holders are and the Shire will undertake consultation at that point. With regard to the preparation of development strategies (clause 1.1) and shire developments at the concept phase (clause 2.4) the Policy outlines that consultation will be undertaken with Determined Native Title Holders or Registered Native Title claimants. This is consistent with the Yawuru ILUA and for works outside of the Yawuru Determination Area, will mean that the Shire will be consulting directly with PBC, (and in some limited circumstances claimant groups) which is considered appropriate for this stage of the planning process as these bodies have demonstrated that they are the traditional custodians of the claimed area as a part of the Native Title processes.   6.    Noted. It is recommended that the definition is updated to be consistent with the one contained in the Government Standard Heritage Agreement.            7.    It is not for the Shire to determine whether a place meets with the requirements of section 5 of the AHA. This rests with the ACMC under the provisions of the Act.  If a site is on the register then the Shire will undertake the consultation as set out in the Policy. 8.    The definition contained in the Policy was adapted from the definition included in the Government Standard Heritage Agreement, with the exception that the listed activities only apply in areas which has previously been disturbed. This is consistent with the advice provided by the Department in the Fact Sheet distributed for the reassessment of DAA 30274 (LSC11) which sets out that activities in developed areas will not require an Aboriginal heritage approval and that areas which have previously been cleared will not require any additional approvals.    The Shire has discussed this comment with officers at the DAA. In the discussion Shire officers relayed as per the definition that an activity would only be considered low ground disturbance where it was within an existing disturbed footprint (i.e. the Shire was grading and existing road within the existing roads footprint or was undertaking weed management within an existing drain). It was acknowledged that this is consistent with the approach in the Aboriginal Heritage Due Diligence Guidelines whereby such works would generally be negligible to moderate disturbance and when undertaken in a built environment or significantly altered environment has a low risk to Aboriginal heritage.   9.    The definition of ‘previously surveyed area’ can be removed as it is not subsequently mentioned in the Policy and therefore does not need to be defined.            10.  See comments under point 5 above.                11.  See comments under point 5 above.     12.  The Shire receives numerous referrals for public work activities. It is the responsibility of each individual public authority to ensure that Aboriginal Heritage is addressed as part of the planning stages. The Shire does not have the administrative resources to undertaken this on behalf of other agencies.  13.  The definition of “low ground disturbing activities” only applies in areas which have previously been disturbed. This would cover activities such as grading a road within the roads existing footprint, weed management of drains within the existing footprint and so on. Given that the Shire undertakes these type of activities on a daily basis it is not in a position to consult on these matters. This position is consistent with the Aboriginal Heritage Due Diligence Guidelines.     14.  See comments in 5 above.      15.  Noted, while it is not the Shire’s intention to undertake works in areas which have Aboriginal cultural significance, there are circumstances where this may not be avoidable. In such circumstances the Shire will seek to avoid impacts, however this may lead to s 18 consent applications being submitted to the DAA. 16.  DAA is the department responsible for the implementation of the AHA and the process established in the Policy is consistent with this.              17.  The Shire will consult with Goolarabooloo in accordance with the provisions of the draft Policy.            18.  The Policy provides guidance about the circumstances where the Shire may engage heritage monitors. As set out under clause 2.13, monitors may be engaged following consultation where the works are being undertaken in an area which has previously not be disturbed and the comments received demonstrate that reasonable grounds exist to conclude that the presence of a heritage monitor is required to mitigate the risk of harm to Aboriginal heritage.   19.  See comments above.         20.  The Shire’s Corporate Business Plan shows that the review of the Municipal Inventory will be undertaken in the 18/19 financial year. The proposal to include the Lurujarri Heritage Trail on the Municipal Inventory will be considered at this time.	That the submission be noted.                                                                                                           That the definition of ‘Aboriginal Heritage Site’ be updated to be consistent with the definition contained in the Government Standard Heritage Agreement.                                                                                        That the definition of ‘previously surveyed area’ be deleted.

 

Item 9.2.6 - DRAFT POLICY FOLLOWING PUBLIC COMMENT PERIOD - CONSULTATION ABORIGINAL HERITAGE

 

 

 

CEO                                                                                 1.2.15

TITLE:	CONSULTATION - ABORIGINAL HERITAGE
ADOPTED:	OMC……………………….. – Pages
REVIEWED:	OMC……………………….. – Pages OMC……………………….. – Pages OMC……………………….. – Pages OMC……………………….. – Pages
ASSOCIATED LEGISLATION:	Aboriginal Heritage Act 1972 (WA)
ASSOCIATED DOCUMENTS:	Community Development Policy 5.1.10 – Community Engagement
REVIEW RESPONSIBILITY:	Chief Executive Officer & Director Development Services
DELEGATION:

Previous Policy Number: Nil

Background:

 

The Shire of Broome undertakes a number of functions which could potentially interact with Aboriginal heritage, this includes:

 

·   Preparation of strategic land use plans or development strategies (Development Strategies);

·   Undertaking of Public Works; and

·   Undertaking development.

 

The Shire of Broome acknowledges the importance of Aboriginal heritage and therefore proposes to have a clear policy to guide the Shire while performing the above functions.

 

Objectives:

 

·   Guide where the Shire will consult with the Aboriginal community to gauge whether a Development Strategy, Public Works or Shire Development proposal may impact upon Aboriginal heritage.

 

·   Establish the process the Shire will follow when a Public Works or Shire Development proposal is to be referred for consultation and how comments received will be considered.

 

·   Detail the requirements for consultation based on the level of interaction with Aboriginal heritage.

 

Definitions:

 

‘Aboriginal Cultural Significance’ means an area that displays aesthetic, historic, scientific, social or spiritual value for past, present or future generations of Aboriginal people.

 

‘Aboriginal Heritage Due Diligence Guidelines’ means the guidelines published by the Department of Premier and Cabinet of WA and amended from time to time.

 

‘Aboriginal Heritage Site’ means a place to which the Aboriginal Heritage Act 1972 applies by operation of section 5 of the Aboriginal Heritage Act 1972.  

 

‘Consultation’ is the open exchange of information between the Shire and the person/s being consulted, to promote awareness of the Shire’s activities and to enable the person/s to have meaningful input in the Shire’s decision-making process.

 

‘DAA’ means the WA Department of Aboriginal Affairs administered by the Minister of Aboriginal Affairs.

 

‘Development Strategy’ means a land use strategy, development strategy or other land use planning document that identifies aspirations for future land use or development for an area/precinct.  Examples of documents that would be considered Development Strategies for the purposes of this definition include:

·   Local Planning Strategy;

·   Old Broome Development Strategy;

·   Chinatown Development Strategy;

·   Tourism Strategy;

·   Recreation Strategies.

‘Government Standard Heritage Agreement’ means the Government Standard Heritage Agreement published by the Department of Premier and Cabinet of WA.

 

‘Low Discretion Works’ are Public Works or Shire Development in which there is limited discretion available to the Shire as to how or where the works can be carried out (for example, the extension of a footpath, road or drain).

 

“Low Ground Disturbance Activity” means any activity that is undertaken on land which has previously been disturbed or an activity that does not involve major or significant ground disturbance, including the following:

 

(a)     field mapping, including cadastral surveys, not involving the permanent disturbance of soil and vegetation;

(b)     sampling, including removing soil, rock and flora samples using hand methods (including hand augering) from the natural surface;

(c)     remote sensing, biological, environmental or conservation surveys, including installing monitoring plots and marker posts;

(d)     establishing temporary lay-down areas, where the establishment of the lay-down area does not require the removal of trees or shrubs and does not require any earthworks in areas which have not previously been disturbed;

(e)     reconnaissance and patrol in light vehicles;

(f)      drilling using hand held rig or rig mounted on 4 wheel vehicle, using existing access and without the construction of new roads and tracks (and where use of the existing roads or tracks involves no disturbance to plant roots);

(g)     digging pitfall traps and temporary trenches for small animals

(h)     baiting and installation of temporary fences and nest boxes;

(i)      collecting and removing loose rocks, firewood, flora or fauna;

(j)      conducting tests for water, site contamination, or other scientific or conservation purposes;

(k)     maintaining and refurbishing existing facilities, including recreation and camping facilities, water points, signs and other structures;

(l)      maintaining existing roads, drains, culverts, bridges, trails, tracks, fence lines and firebreaks;

(m)    erecting signage and barriers using hand and mechanical augers;

(n)     revegetating of degraded areas, including fencing areas of vegetation;

(o)     rehabilitating previously disturbed areas, including ripping, scarifying, matting, brushing, seeding and planting;

(p)     carrying out species recovery programs;

(q)     erosion control activities around existing roads, infrastructure or facilities;

(r)      weed control using hand, mechanical and chemical methods of control;

(s)      any other use of hand-held tools, not referred to in the preceding

         paragraphs;

(t)      the laying of temporary water pipelines across the ground where no excavation is required; and

(u)     electrical works associated with existing infrastructure in previously disturbed areas.

 

 

‘Public Work’ has the meaning given in the Public Works Act 1902.

 

‘Section 18 Notice’ means a notice lodged in accordance with section 18 of the Aboriginal Heritage Act 1972 (WA) for consent to use land which may impact an Aboriginal heritage site.

 

‘Shire Development’ means a development, other than public works, that is undertaken by the Shire which involves the carrying out on the land of any excavations or other ground disturbing works.

 

Policy:

1.0   Preparation of Development Strategies

 

While Development Strategies themselves do not propose to undertake works, they do identify future development opportunities or concepts to improve an area.   The most important element of undertaking consultation at this stage is to inform the preparation of the Development Strategy and to ensure that an Aboriginal Heritage Site or areas of Aboriginal Cultural Significance are identified and considered.

 

1.1     The Shire of Broome (or consultants engaged by the Shire) prior to preparing a Development Strategy will forward details of the land area proposed to be covered by the Development Strategy and a copy of the key objectives to the following organisations:

 

a) Determined Native Title Holders for the area; or

b) Registered Native Title claimants for the area.

 

The Shire will also review any heritage reports previously prepared and that are publicly available for the Development Strategy area.

 

1.2     The Shire will arrange a workshop with representatives of the above organisations, to discuss the project and any Aboriginal Heritage Sites or areas of Aboriginal Cultural Significance that may exist within the area of the Development Strategy.  

 

1.3     In undertaking this consultation, the Shire will request information on:

a) any Aboriginal Heritage Sites;

b) particular areas within the proposed Development Strategy area boundaries that are known to have Aboriginal Cultural Significance; and

c) a description of the significance (if culturally appropriate).

 

The Shire will provide a minimum 30 day period in which the above information can be provided and the workshop is to be held. Following this period, the Shire will progress with the preparation of the Development Strategy.

 

1.4     The outcomes from the consultation (both written and verbal) will be incorporated into the Development Strategy as far as practicable and will identify ways to avoid impacts upon Aboriginal Heritage Sites or areas of Aboriginal Cultural Significance.

 

1.5     As these planning instruments do not involve ground disturbing works or activities, the Shire will not undertake an Aboriginal heritage survey. However, the Shire will review and incorporate any relevant considerations for an identified Aboriginal Heritage Site that may exist in the Development Strategy area.

 

1.6     Following a draft of the Development Strategy being adopted, organisations consulted with in accordance with clause 1.1 of this policy will be forwarded a copy of the draft and invited to provide comments. 

 

1.7     A further opportunity will be provided for a workshop to be held between the Shire and representatives of the organisations mentioned in clause 1.1.

 

1.8     Any comments or submissions received will be tabled as a part of a report seeking the final adoption of the Development Strategy.

 

 

2.0   Shire of Broome Public Works or Shire Development

For the Shire of Broome to be able to deliver services to the community the Shire is required to undertake a number of different Public Works or Shire Development. This could include (but is not limited to) items such as:   ·   Road construction and maintenance; ·   Installation of drainage; ·   Footpaths and development of public recreation facilities; ·   Bridges; ·   Cemeteries; ·   Redevelopment of Shire owned/managed land or buildings; ·   Quarries or works for procuring stone, earth or any other material required for the construction of a public work.   The Crown, the Governor, or the State government may also undertake Public Works including works such as railways, public housing, court houses, provision of water, public schools, etc.    Public Works and Shire Development can have the potential to impact upon Aboriginal Heritage Sites. The provisions below will establish the Shire’s procedure for determining whether a Public Work or Shire development may impact upon Aboriginal Heritage Sites.

 

2.1     The Shire of Broome will not undertake consultation on behalf of other government authorities or agencies undertaking Public Works. This is the responsibility of the government authority or agency undertaking the works. 

 

2.2     The provisions below apply to the Shire of Broome’s activities only.   

 

2.3     The Shire will not undertake any consultation or notification for activities or works which meet the definition of Low Ground Disturbance Activity. 

 

 

Concept Phase

 

2.4     For Public Works or Shire Development which is not Low Discretion Works, at the concept design phase of the project the Shire will refer the proposal to:

 

a)  Determined Native Title Holders for the area; or

b)  Registered Native Title claimants for the area,

 

and provide a 30 day period in which comments are to be provided on any Aboriginal Heritage Sites or Aboriginal Heritage Significance that exists within the area. 

 

For any works which are Low Discretion Works, the consultation        will be undertaken in accordance with clause 2.6.

 

2.5     From the comments received the Shire will:

 

a)   If the concept plan has been identified as impacting upon an Aboriginal Heritage Site(s), as far as practicable the concept plan will be amended to avoid impacts upon the Aboriginal Heritage Site(s); and

b)   Subject to design and budgetary considerations, attempt to:

(i)   alter the design of the proposed works or activity to avoid impacts on elements of Aboriginal Cultural Significance that exists within the area of the works or activity; and/or

(ii)  incorporate interpretative or design elements to promote awareness of elements of Aboriginal Cultural Significance that exists within the area of works or activity.

 

Design Phase

 

2.6     If a proposed Public Work or Shire Development which is not a Low Ground Disturbance Activity falls within an Aboriginal Heritage Site,  the Shire of Broome will forward a copy of the proposal to the DAA to enquire if:

 

a) the Public Work or Shire Development proposed will disturb an Aboriginal Heritage Site;

b) whether a Section 18 Notice is required; and

c) who should be consulted prior to the lodgment of the section 18 Notice.

 

2.7     If the DAA advises that the proposed Public Works or Shire Development does fall within the area the subject of an Aboriginal Heritage Site, the Shire of Broome will consult with those persons or organisations advised by the DAA.  

 

2.8     In undertaking this consultation, the Shire will:

 

a)  Forward to the persons or organisations advised by the DAA in accordance with clause 2.7:

(i)  written notification advising of the proposed Public Works or Shire Development;

(ii) details of estimated commencement and completion dates; and

(iii) copies of the designs of the proposed works (if available); and

 

b)  Request that comments be provided within 30 days on whether the proposed works would impact upon any Aboriginal Heritage Sites and if the proposed works could be modified to avoid or minimise impacts upon Aboriginal Heritage Sites. 

 

2.9     If the DAA advises that there is ‘insufficient information’ to determine if the Aboriginal Heritage Act 1972 applies, the Shire of Broome will:

 

a)      forward the information outlined in clause 2.8 a) to any determined native title holders or any registered native title claimant groups; and

 

b)      provide a 30 day period in which any comments are requested to be forwarded to the Shire.

 

Please refer to Attachment No 1 – Public Works or Shire Development Flow Chart which provides a visual representation of the above processes.  

 

 

2.10   For all other land which does not fall within a registered Aboriginal Heritage Site, the Shire of Broome will follow the principles and process set out in the Aboriginal Heritage Due Diligence Guidelines.

 

2.11   If consultation is deemed to be required following a review of the Due Diligence Guidelines, then it will be carried out in accordance with clause 2.6.

 

Please refer to Attachment No 2 – The Aboriginal Heritage Risk Matrix which provides a summary of the risk assessment process provided within the Due Diligence Guidelines.

 

 

2.12   As part of the consultation carried out in accordance with clauses 2.8, 2.9 and 2.11, the Shire will only adjust how it intends to undertake the proposed Public Works or Shire Development if comments are received that the works would impact upon an Aboriginal Heritage Site. Any other comments received that do not relate directly to Aboriginal Heritage Site(s) will be considered as part of any wider community engagement process, if required in accordance with Policy 5.1.10 – Community Engagement.   

 

 

Aboriginal Heritage Monitors

2.13   If the Shire receives comments following consultation under clauses 2.8, 2.9 or 2.11 requesting that a heritage monitor is engaged, the Shire will agree to engage a heritage monitor in the following circumstances:

 

a)  the works are being undertaken in an area which has previously not been subject to ground disturbing activities; and

b)  the comments received following consultation demonstrate reasonable grounds exist to conclude that the presence of a heritage monitor is required to mitigate the risk of harm to Aboriginal heritage;

 

2.14   If doubt exists as to whether the engagement of a heritage monitor is required or regarding the selection of an appropriate heritage monitor for a particular location, then the Shire will seek advice from the DAA.

 

2.15   If:

a)      the Shire engages a heritage monitor in accordance with Clause 2.13; or

b)      consent to proceed with the works granted in accordance with Section 18 of the Aboriginal Heritage Act 1972 is conditioned on a heritage monitor being required while the ground disturbing works are being undertaken,

 

the Shire of Broome adopts the principles contained within the Department of Premier and Cabinet’s Guidelines for the Engagement of Aboriginal Heritage Monitors. 

 

Aboriginal Heritage Surveys

2.16   Aboriginal heritage surveys will be undertaken for proposed Public Works or Shire Development in the following circumstances: 

 

a) A person or an organisation consulted under clauses 2.8, 2.9 or 2.11 can demonstrate that an Aboriginal heritage survey is required to identify an Aboriginal Heritage Site; or

b) Advice is received from the DAA that a survey is required to support the Section 18 Notice application.

 

        Notwithstanding the above, the Shire may decline to undertake an    Aboriginal heritage survey if a survey has previously been      prepared for the area or the works.

 

2.17   When undertaking an Aboriginal heritage survey, the Shire adopts the principles contained within the Government Standard Heritage Agreement and will request that the registered Native Title claimants or determined Native Title holders enter into such agreement with the Shire.

Links:

 

Aboriginal Heritage Inquiry System:	http://www.daa.wa.gov.au/heritage/place-search/
Aboriginal Heritage Due Diligence Guidelines:	http://www.daa.wa.gov.au/globalassets/pdf-files/ddg
Government Standard Heritage Agreement:	https://www.dpc.wa.gov.au/lantu/MediaPublications/Documents/Government%20Standard%20Heritage%20Agreement%20-%20Draft%207%20-%20Master%20Copy%20-%2017%20October%202014.pdf

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

9.2.7      TRADING IN PUBLIC PLACES LICENCE APPLICATION - BROOME FAT BIKE TOURS LOCATION/ADDRESS:                            Cable Beach APPLICANT:                                              Lachlan Harris FILE:                                                           COS11 AUTHOR:                                                   Environmental Health Officer CONTRIBUTOR/S:                                    Nil RESPONSIBLE OFFICER:                          Director Development Services DISCLOSURE OF INTEREST:                     Nil DATE OF REPORT:                                    31 January 2017

 

SUMMARY:         The Shire received an application for a Trading Licence under the Trading, Outdoor Dining and Street Entertainment Local Law 2016 to conduct small group mountain bike tours along Cable Beach. The area of operation will be north of the rocks to Willie Creek. This report provides an overview of the application for Council’s consideration.

 

 

BACKGROUND

 

Previous Considerations

 

Nil.

 

COMMENT

 

Application Details

 

Applicant	Lachlan Harris
Application Received	19 September 2016
Application Fee Paid	Yes
Information On Application	Complete
Appropriately Zoned Land	Not required by this activity
Approvals	Approval under the Conservation and Land Management Act 1998 (CALM Act) is required.
Public Liability Insurance	Will be a requirement prior to issuing the licence
Details Of Proposed Activity	Small group mountain bike tours along Cable Beach north of the rocks.

 

An application for a Trading Licence was received from Mr Lachlan Harris on 19 September 2016. Requests for further information and consideration of the proposal by the Yawuru Park Council has delayed the preparation of this report.

 

Mr Harris has proposed that tours will be conducted along the beach north of the rocks to Willie Creek. Tours will operate year round subject to demand and will be undertaken under the trading name Broome Fat Bike Tours. 

 

Attachment 1 to this report shows the proposed area within which the Fat Bike Tours will be undertaken.  

 

The applicant proposes to operate all year around, running daily mountain bike tours.  Each tour group will have a maximum of 10 participants.  Tours will initially be conducted in the hours leading up to sunset, with a duration of 1.5 to 2 hours. Subject to popularity, additional tours may be run in the morning from dawn onwards.  The tours will utilise a special type of mountain bike known as a fat bike, which is a modified mountain bike that has specialised wheels designed for riding on sand. 

 

Staffing of the business will initially be solely by the applicant, Mr Harris. Depending on operating needs, one or two additional part-time or casual staff may be engaged in the future.  Staff will not be required to be present at the trading site at all times, as the trading site is not a point of sale or bookings, but functions as a start and finish point for the tours that the staff will be leading. 

 

The applicant requires sufficient space on the beach to park a vehicle and trailer combination used for the transport of customers and bikes. Land use will be non-exclusive, and as such a 30 metre wide strip of beach is considered to be an adequate sized trading area.  Tour participants will be picked up from their accommodation and driven to the approved area at Cable Beach for their transfer to the mountain bikes and the commencement of the tour.

 

The vehicle and trailer will be transported to the beach each day shortly before the start of tours and will be removed from the beach at the close of operations.  The trailer will be stored on a private property when not in use.

 

Attachment 2 to this report shows the proposed trading area on Cable Beach from which the Fat Bikes Tours will commence.

 

The tours will be marketed and booked in advance through a website that provides a booking portal. Promotional materials will be distributed through Broome accommodation providers and the Broome Visitors Centre. The applicant is exploring advertising possibilities with third party providers such as Trip Advisor and Lonely Planet.

 

A completed risk management checklist, which forms part of the Shire’s trading licence application requirements, has been included, as has confirmation of intention to obtain public liability insurance to the value of $10 million if the application is approved.

 

Land which the proposed tours will traverse

 

The proposed tours will commence on Lot 555 DP406039 which is managed by the Shire.  It is on this Lot that the 30 metre area where the vehicle and trailer will be parked.

 

The tours will then traverse Reserve 50994 and Reserve 51162.  Reserve 50994 is jointly managed by the Shire and the Yawuru Native Title Holders Aboriginal Corporation Registered Native Title Body Corporate (Yawuru).  Reserve 51162 is jointly managed by the Shire, Yawuru and Department of Parks and Wildlife (DPAW) on behalf of the Conservation Commission of WA.  Therefore, the application must be supported by Yawuru and the Yawuru Park Council (YPC) for it to proceed.

 

On advice from Shire officers, the applicant approached Yawuru to discuss the proposal prior to submitting his application for a trading licence.  As a result of this consultation, the applicant agreed that the Broome Fat Bike Tours would not access the sand dunes or tracks contained in the sand dunes, and would restrict tour activities to the beach.  Mr Harris confirmed this in an email to Shire officers.

 

Further, a report outlining the proposal was presented to the YPC at its meeting on 16 November 2016.  At this meeting, the YPC resolved as follows:

 

That Yawuru Park Council:

 

1.   Supports each Yawuru Park Council member organisation delegating authority to individual representative to assess the Shire of Broome Trading Licence application and the Dept. Parks and Wildlife ‘T-class’ application and include any other conditions so required by those agencies. If there is any dissention between agencies then the matter is referred back to YPC.

2.   That the delegated authority (as above) has the ability to advise the SoB and Dept. Parks and Wildlife to complete the processing of the licence applications.

 

In accordance with this YPC resolution, the application for trading licence and a set of draft conditions of approval were provided to Yawuru and DPAW representatives for their consideration. The conditions recommended for the trading licence for the Broome Fat Bike Tours include an addition requested by DPAW and Yawuru, stating that the tours must be undertaken below the Highest Astronomical Tide.

 

In addition, approval will be required for the proposed tours over Reserve R51162 under the CALM Act.  The applicant has been in discussions with the relevant officer at DPAW in relation to obtaining this approval and is aware of this requirement.

 

What are fat bikes?

 

A fat bike (also referred to as a fatbike or fat-tyre bike) is a bicycle designed for off-road use, which has larger than normal bicycle rims and tyres.  Tyre widths are typically upwards of 64mm, with sizes that are increasingly larger depending on the size and design of the bike wheels and rims.  This design allows for low ground pressure and a large contact area (or footprint) between the tyre and the ground.  This design enables the bikes to be ridden smoothly over soft terrain such as snow and sand, terrains on which tyres with a smaller contact area would not gain sufficient traction and become bogged.

 

Regulatory issues

 

The applicant addresses the issue of helmets in the Workplace Health and Safety Management Plan by saying that participants will be supplied with helmets that comply with the Australian Standard AS/NZS 2063:2008 Bicycle helmets.  The loaning or hiring out of bicycle helmets raises health issues relating to nits and bodily fluids such as sweat.  It is recommended that these health issues are addressed by the Applicant by ensuring that the helmets are cleaned between uses.

 

The applicant has also proposed that light refreshments may be served to participants after each tour.  The provision of food products, including bottled water, will require notification of a food business in accordance with s107(1) of the Food Act 2008.  As a result, the submission of a Food Premises Notification/Registration Form, an inspection of the business and payment of associated application and annual fees will be required before the trading activity can include the provision of light refreshments.  This is a requirement that the applicant has indicated will be met if the licence is approved.

 

Statutory planning considerations

 

As the activity will not require the exclusive use of the land as outlined above, it is not considered to constitute a land use change which would require development approval. 

 

Conclusion

 

It is recommended that a Trading Licence be issued for a period of five (5) years in accordance with Council Policy 4.2.15 subject to relevant conditions.  The trading licence will take affect upon payment of the licence fee in accordance with Council’s adopted fees and charges.

 

CONSULTATION

 

Nyamba Buru Yawuru Ltd, Department of Parks and Wildlife and Yawuru Park Council

 

STATUTORY ENVIRONMENT

 

Trading, Outdoor Dining and Street Entertainment Local Law 2016

 

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.

 

POLICY IMPLICATIONS

 

The application has been assessed against the Shire’s Trading, Outdoor Dining and Street Entertainment Local Law 2016 (Local Law) and Policy 4.2.15 – Trading in Public Places (Trading Policy).

 

A licence agreement via a formal disposal process in accordance with section 3.58 of the Local Government Act 1995 is not required in this particular instance due to the temporal nature of the activity and the fact that use of the area will not be exclusive.

 

Local Law

 

Clause 5.4 of the Local Law contains a list of application requirements. The applicant has provided the necessary information, as described above.

 

Trading Policy

 

The Objectives of the Trading Policy include:

 

1.         To facilitate the assessment and approval of Trading Licences in accordance with the Local Law.

2.          To maintain amenity, usability and public safety in public places.

3.          Promote fairness and certainty to traders, permanent businesses and the community in relation to trading in public places.

4.          Promote vibrancy of public places and economic development in the Shire of Broome.

5.          To protect Cable Beach as a highly valued environmental, cultural and social asset enjoyed by visitors and residents alike. 

 

The application is considered to comply with the objectives of the Trading Policy.

 

The Trading Policy also provides criteria to be met when considering a trading licence application.  These criteria are discussed below.

 

Other than the commercial camel operators, there is currently one other trading licence issued for Cable Beach.  This licence is held by Darryl and Angela Roberson trading as the Beach Hut. See Attachment 3 which shows the location of the other Cable Beach traders.

 

The business would not be directly competing with other like businesses, and is located more than 300m from the Broome Cycles bicycle hire business.

 

The location of the proposed trading area will minimise its impact on other traders and prevent congestion of the area.  In terms of community impact, the proposed trading area is already well used by members of the public for swimming and driving, as it is a main area in which vehicle access is permitted. Therefore, locating the starting point for the tours in this location will provide an additional recreational opportunity for people without detracting from the reasonable enjoyment of the beach by other visitors. 

 

The trading activity is not likely to generate a noise disturbance as it does not involve hawking or motorised vehicles beyond the vehicle used to transport customers and bikes.

 

The applicant provided all required documents including a Risk Management Plan, an Occupational Health and Safety Plan, and a Business/Operational Plan. These plans have been assessed and have been deemed satisfactory by Shire officers.

 

The Trading Policy includes additional provisions for trading activities on Cable Beach.  The proposed Fat Bike Tours comply with these criteria, as follows:

 

1.   A maximum of six trading licences are to be granted for Cable Beach - There are currently only five trading licences granted for Cable Beach.

 

2.   Trading licences are to only to be issued for trading activities that support and are related to the recreational use and enjoyment of Cable Beach and its adjacent waters -  Mountain bike tours are a recreational use and the location has been specifically selected to take advantage of the natural attributes of the area.

 

3.   A person must not hold more than one trading licence for Cable Beach at any time - The applicant does not currently hold another trading licence in Broome.

 

4.   The licensee must have a valid permit issued in accordance with the Control of Vehicles (Off Road Areas) Act 1960 - The area where the applicant intends to take his vehicle on the beach does not lie within the off-road vehicle prohibited area of Cable Beach. As such, a permit for access is not required.

 

Therefore, the application complies with the Local Law and Trading Policy.

 

FINANCIAL IMPLICATIONS

 

Should Council approve a Trading Licence for Broome Fat Bike Tours the following fees will be payable by the applicant. An application fee of $330.00 has already been submitted, and an annual licence fee will be collected in accordance with Council’s adopted fees and charges.

 

Fees are set based on cost recovery.  Given the activity is proposed on Cable Beach, an area to which significant Shire resources are dedicated, the high intensity licence fee of $1540.00 per annum will be applicable.

 

RISK

 

Risks associated with the business are to be borne by the applicant.  The applicant has developed a Risk Assessment and Management Plan and a Workplace Health and Safety Management plan to mitigate risks.

 

As part of the terms of the trading licence, the licensee is required to obtain public liability insurance to the value of $10,000,000 ($10 million) prior to the commencement of trading.

 

In light of these mitigation measures, the risk to the Shire in approving the activity is considered Low.

 

There is a risk if the Shire were to refuse the application that the decision may be challenged in the State Administrative Tribunal.  The risk of this occurring should the Shire refuse the application, given the application complies with the Local Law and Trading Policy, is considered Moderate.

 

STRATEGIC IMPLICATIONS  

 

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

 

Accessible and safe community spaces

 

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:

 

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

 

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

 

 

VOTING REQUIREMENTS

Simple Majority

 

REPORT RECOMMENDATION: That Council: 1.       Approves the application for a trading licence from Lachlan Harris for small group mountain bike tours on Cable Beach in accordance with: a)   clause 2.3.1 of the Trading, Outdoor Dining and Street Entertainment Local Law 2016; and b)   the application received by the Shire on 14 September 2016. 2.       Authorises the Chief Executive Officer to issue the trading licence to Lachlan Harris for small group mountain bike tours on Cable Beach in accordance with clauses 2.3.1 and 2.4 of the Trading, Outdoor Dining and Street Entertainment Local Law 2016 subject to the following conditions: a)   The licence expiry date is 28 February 2022. b)   No individual or business shall hold more than one (1) trading licence at any time and will operate independently at all times. c)   All necessary approvals for all aspects of the operation must be obtained and maintained.   d)   The licence holder must ensure that public liability insurance cover is in place for the trading activity to the value of $10,000,000 ($10 million) at all times. e)   The licence is not transferable or renewable without the approval of Council and there is to be no expectation of continuance of the licence by the Licence Holder. f)     The trading activity is to occur within the area approved for the trading activity as detailed on the plan attached to this trading licence. g)   The trading activity must remain limited to Cable Beach, below the highest astronomical tide. h)    The commencement of tours undertaken as part of the trading activity, including the placing of signs, is to occur within the area shown on the plan attached to this trading licence. i)     The licensee must immediately comply with any lawful direction given at any time by the Chief Executive Officer of the Shire of Broome or his or her delegate, or an Authorised Officer, including the Shire of Broome Rangers and Lifeguards. j)     The licensee must maintain and adhere to, during the period of the licence, all procedures, policies, licences and accreditation outlined in the licence application and allow Shire officers, at any time, to inspect and verify the use and currency of those procedures, policies, licences and accreditation. k)    The licensee must at all times comply with the requirements of all relevant legislation, including but not limited to the Road Traffic Act 1974, the Road Traffic Code 2000, the Food Act 2008 and the Occupational Health and Safety Act 1984. l)     The licensee must obtain approval in accordance with the Conservation and Land Management Act 1998 to undertake the trading activity within Reserve 51162. m)  The licensee may place only one portable sign within the trading area approved for the commencement of the tours.  That sign must: (i)    not exceed 750mm in height; (ii)   not exceed 0.9 square metres double sided area (eg. 750mm x 600mm each face); (iii)  not indicate or display any matter other than the nature of the trading activity; (iv)  be placed so as not to cause interference or be hazardous to vehicular traffic or cause any  interference or hazard or impede pedestrians; (v)   be of sound construction, maintained in good condition, neatly written and fixed in position to the satisfaction of the Shire’s Building Surveyor; (vi)  be removed from the land in the event of a cyclone threat; and (vii) be removed at the end of each trading session. n)    The licensee must, at the conclusion of business each day, remove all and any refuse and litter associated with the operation of the trading activity and ensure the site is left in a clean and safe condition. o)   All equipment must be removed from the beach at the close of operation each day. p)   A maximum of 10 participants is permitted in each tour. q)   The only trading activities permitted on the area of application are: ·     Small group mountain bike tours.

 

Attachments

1.	Proposed Trading Area up to Willie Creek
2.	Broome Fat Bikes Proposed Trading Area
3.	Cable Beach Trader Locations