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Addendum Agenda - Extra Ordinary Meeting – Tuesday 05 May 2020 Page 1 |
CL20.102 Independent Legal Advice - Development Application - Lake View Drive Burrill Lake - Lot A DP21307
HPERM Ref: D20/158388
Section: Executive Strategy
Approver: Stephen Dunshea, Chief Executive Officer
Attachments: 1. Report and Attachments - DE20.25 - Development & Environment Committee - 7 April 2020 ⇩
2. Response to Philip Davenport Submission ⇩
3. Letter to Council - DA19.1987 - 4 May 2020 ⇩
Reason for Report
To provide Council with the independent legal advice obtained on behalf of the Chief Executive Officer for consideration in Council’s determination of DA19/1897 - development application for relocation of the Children’s Playground and construction of a boat shed at Lake View Drive Burrill Lake (“the Development Application”).
Background
At the Ordinary Meeting on 28 April 2020 Council resolved:
That the Council’s determination of the Development Application for relocation of the Children’s Playground within the reserve and the construction of a boat shed for the storage of paddle powered boats on the lake at Lake View Drive Burrill Lake – Lot A DP 21307 be deferred until the Development Committee or an Extraordinary Meeting of the Council to consider legal advice to be received by the Chief Executive Officer.
The Chief Executive Officer has obtained the independent legal advice of Holding Redlich dated 4 May 2020 (“Council’s Legal Advice”) and presents that advice to Council for consideration in their determination of the Development Application.
Detailed Advice Summary
On 29 April 2020, the Council’s Legal Counsel instructed Holding Redlich to provide Council with independent legal advice for consideration in its determination of the Development Application. In particular, Holding Redlich were instructed to consider and provide independent legal advice on the issues raised in the legal opinion of Phillip Davenport, Solicitor dated 14 April 2020.
Documents and materials
The materials and documents considered by Holding Redlich in preparation of Council’s Legal Advice are listed in Annexure A to that advice and include:
1. Minutes of Council Ordinary Meeting, 28 April 2020
2. Minutes of the Development and Environment Committee, 7 April 2020
3. Assessment Report for Development Application – Lake View Drive, Burrill Lake, DA19/1897, D20/64858
4. Shoalhaven City Council Parks Plan of Management (CLP No. 6) – Adopted July 2001;
5. Document prepared by Council’s Property Unit Manager entitled “Response to Phillip Davenport submission dated 14 April 2020”;
6. H C Laan, submission enclosing legal opinion;
7. Legal opinion, letter from P Davenport, 14 April 2020
8. Development Application material
Issues Considered
The issues that Holding Redlich were instructed to consider in their independent advice were the problems with the development application, the assessment and recommendation that were identified by Mr Laan’s solicitor, Mr Phillip Davenport in his advice dated 14 April 2020.
In particular, these problems identified by Mr Davenport included:
1. The development application is not valid;
2. The Plan of Management of the Community Land does not permit the proposed development.
3. The Club cannot construct the boatshed without a licence from Council.
4. Council has no power to grant such a licence.
5. Council has no power to grant the proposed lease.
Legislative framework relevant to the submission and assessment of the Development Application
A. Relevant legislation
The relevant legislation in relation to the submission and assessment of the Development Application is the EP&A Act and EP&A Regulation not the LG Act, in particular clause 49(1) of the EP&A Regulation and section 4.15 of the EP&A Act
The LG Act is only relevant in relation to this matter, when consideration is being given to the granting of a licence or lease prior to construction and prior to occupation. If the Development Application is determined by way of an approval, the granting of a licence or lease will be the subject of conditions of consent.
B. Owners Consent
There appears to be no dispute that the owner of the land is Council. Accordingly, the applicant is required under Clause 49(1) of the EP&A Regulation to obtain the written consent of Council prior to being able to validly lodge a development proposal with respect to the subject land.
Owner’s consent was provided to the applicant by Council’s Property Unit Manager, under delegated authority. Accordingly, there may be no dispute that owner’s consent was not provided.
C. Assessment of the Development Application
Section 4.15 of the EP&A Act sets out the requirements of Council in assessing the Development Application.
These requirements do not include the requirement to give consideration to the provisions the LG Act. Therefore, in assessing the Development Application, Council is not required to give consideration to the application of the relevant Plan of Management and/or the issues around the granting of a lease or licence.
As stated in A. above, if the Development Application is determined by way of an approval, the granting of a licence or lease will be the subject of conditions of consent and the LG Act provisions will then be considered.
Legislative framework relevant to the granting of a lease or licence
There is no dispute that the applicant cannot construct the proposed development until it has a licence (or lease) to use and occupy the land from Council. If the Development Application is approved, as recommended, it is a proposed condition of consent that the applicant is to enter into a licence agreement with Council for the leasing of the land prior to construction commencing.
Council’s power to grant a lease or licence is derived from the relevant Plan of Management and Part 2 Division 2 of Chapter 6 of the LG Act.
The relevant legislative and policy considerations with respect to the granting of a licence include consideration of the relevant Plan of Management and Part 2 Division 2 of Chapter 6 of the LG Act.
1. Use and management of Community Land
Section 35 of the LG Act proves the following framework as to what governs the use and management of community land:
a. The plan of management applying to the land
b. Any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land
c. Division 2 of Chapter 6 of the LG Act.
2. Plan of Management
Shoalhaven City Council Parks Plan of Management (CLP No. 6) – Adopted July 2001 is the plan of management applicable to the Land (“the Plan of Management”).
Council’s Legal Advice has considered the Plan of Management, including the core objectives at section 2.1 and the provision for licencing and leasing at section 3.2.11.
Council’s Legal Advice is that the proposed development meets the requirements of the Plan of Management and Council would therefore be able to issue licence (or lease) for the use of the Land by the applicant as per the provisions of the LG Act.
3. Local Government Act
The requirements for the grant of a licence (or lease) are contained in section 47 and 47A of the LG Act. The granting of such a licence is contingent upon following the requirements contained in section 47 of the LG Act for licences with a term of greater than 5 years or section 47A of the LG Act for licences with a term of less than 5 years.
The LG Act requirements are set out in paragraphs 34 to 36 of Council’s Legal Advice. Such requirements broadly include the requirement for public notice, the consideration of submissions and in some cases obtaining the Minister’s consent.
Conclusions and recommendations
Having regard to Council’s Legal Advice it may be concluded that:
1. Owner’s consent provided to the applicant is valid and therefore the submission of the Development Application was lawful;
2. Relevant and proper considerations were made in the assessment of the Development Application;
3. Council has the power under the LG Act and the Plan of Management to grant the applicant a licence to use and occupy the land.
Based upon the above conclusions it is recommended that:
1. Council has the required information and advice before it to satisfy itself of the validity of the Development Application and Council’s ability to determine the Development Application by way of approval.
2. Council determine the Development Application by way of approval and subject to the proposed conditions of consent as recommended by the Director of Development, Environment and Planning in the report submitted to the Development and Environment Committee on 7 April 2020.
Following the issue of an approval it is acknowledged that:
1. Prior to any construction taking place, it will be a condition of consent that the applicant enter into a licencing agreement with Council.
2. The process for granting a licence is governed by the provisions of the LG Act, namely, section 47, in the case of a licence with a term exceeding 5 years, or section 47A for a licence with a term not exceeding 5 years.
