Agenda of Ordinary Meeting - Monday, 14 November 2022

Ordinary Meeting

Meeting Date: Monday, 14 November, 2022

Location: Council Chambers, City Administrative Building, Bridge Road, Nowra

Time: 5.30pm

Membership (Quorum - 7)

All Councillors

Please note: The proceedings of this meeting (including presentations, deputations and debate) will be webcast, recorded and made available on Council’s website, under the provisions of the Code of Meeting Practice. Your attendance at this meeting is taken as consent to the possibility that your image and/or voice may be recorded and broadcast to the public.

Shoalhaven City Council live streams its Ordinary Council Meetings and Extra Ordinary Meetings. These can be viewed at the following link

https://www.shoalhaven.nsw.gov.au/Council/Meetings/Stream-a-Council-Meeting.

Statement of Ethical Obligations

The Mayor and Councillors are reminded that they remain bound by the Oath/Affirmation of Office made at the start of the council term to undertake their civic duties in the best interests of the people of Shoalhaven City and to faithfully and impartially carry out the functions, powers, authorities and discretions vested in them under the Local Government Act or any other Act, to the best of their skill and judgement.

The Mayor and Councillors are also reminded of the requirement for disclosure of conflicts of interest in relation to items listed for consideration on the Agenda or which are considered at this meeting in accordance with the Code of Conduct and Code of Meeting Practice.

Agenda

1. Acknowledgement of Country

2. Moment of Silence and Reflection

3. Australian National Anthem

4. Apologies / Leave of Absence

5. Confirmation of Minutes

· Ordinary Meeting - 31 October 2022

6. Declarations of Interest

7. Presentation of Petitions

8. Mayoral Minute

9. Deputations and Presentations

10. Call Over of the Business Paper

11. A Committee of the Whole (if necessary)

12. Committee Reports

CL22.581..... Report of the Nowra CBD Revitalisation Strategy Committee - 25 October 2022........................................................................................................................ 1

CBD22.36... Election of Chairperson and Notification of Council Resolution

13. Reports

City Performance

CL22.582..... Draft Financial Statements for the year ended 30 June 2022....................... 2

CL22.583..... DPOP 2022-23 - Quarterly Performance and Budget Report (July - September)........................................................................................................................ 6

CL22.584..... Policy - Privacy Management Plan for Adoption.......................................... 15

CL22.585..... Misuse of Council Resources – March 2023 State Election........................ 17

CL22.586..... Ongoing Register of Pecuniary Interest Returns - October 2022................ 20

City Futures

CL22.587..... Proposed Voluntary Planning Agreement - Part of Mundamia Urban Release Area...................................................................................................................... 22

CL22.588..... Planning Agreement and Works In Kind Agreement Policy Review........... 29

CL22.589..... Report Back - Short Term Protection Options - Former Anglican Church, Huskisson...................................................................................................................... 31

City Services

CL22.590..... Proposed Land Disposal - North Crescent Culburra Beach........................ 36

CL22.591..... Proposed Transfer of Lot 1 DP 915430 Brooman Road, Morton from the Minister for Public Works to Shoalhaven City Council.................................................... 41

CL22.592..... IPART Review of Domestic Waste Charges................................................ 44

City Development

CL22.438..... Policy - Companion Animals (Impacts on Native Fauna) - Conditions of Development Consent........................................................................................................ 46

City Lifestyles

CL22.593..... Policy - Shoalhaven Sports Board Terms of Reference.............................. 50

CL22.594..... Policy - Terms of Reference - Inclusion and Access Advisory Group and Aboriginal Advisory Committee..................................................................................... 54

CL22.595..... Rescind Policy - Community Facilities - Use and Hire for Commercial Activities 66

Shoalhaven Water

CL22.596..... Acquisition of Easement for Water Supply - Lot 3 DP 595695 - 109 Main Road Cambewarra................................................................................................. 72

CL22.597..... Classification of Land - Lot 21 DP 1284124 Abernethys Lane Meroo Meadow 75

Councillor Conference Report

CL22.598..... Australian Regional Tourism Convention..................................................... 78

14. Notices of Motion / Questions on Notice

Notices of Motion / Questions on Notice

CL22.599..... Rescission Motion - CL22.547 - Tree Management in Shoalhaven - Proposed Trial Amendment to Shoalhaven Development Control Plan 2014 - 45 Degree Rule and Asset Protection Zone Clearing................................................................... 89

CL22.572..... Notice of Motion - Affordable Housing......................................................... 91

CL22.600..... Notice of Motion - Update and Proposed Next Steps - Land Use Planning Changes for Agritourism.............................................................................................. 93

CL22.601..... Notice of Motion - Call in and Councillor Briefing - Hitchcock’s Lane - SF10965 100

CL22.602..... Notice of Motion - Councillor Briefing - RA21/1003 - South Moss Vale Road Subdivision................................................................................................. 101

CL22.603..... Notice of Motion - Urgent Inclusion of Character Considerations in Shoalhaven’s Key Planning Instruments.................................................................................. 102

15. Confidential Reports

Nil

Ordinary Meeting – Monday 14 November 2022

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CL22.582 Draft Financial Statements for the year ended 30 June 2022

HPERM Ref: D22/457081

Department: Finance

Approver: Kevin Voegt, Director - City Performance

Attachments: 1. Commentary - Financial Statements for the year ended 30 June 2022 (councillors information folder) ⇨

2. Draft General Purpose Annual Financial Statements - June 2022 (councillors information folder) ⇨

3. Draft Special Purpose Annual Financial Statements - June 2022 (councillors information folder) ⇨

4. Draft Statement by Councillors and Management - General Purpose Financial Statements (councillors information folder) ⇨

5. Draft Statement by Councillors and Management - Special Purpose Financial Statements (councillors information folder) ⇨

Reason for Report

Under Sections 413 and 418 of the Local Government Act 1993, Council is required to formally refer the draft Financial Statements to audit, sign statements on the preparation of the statements, and set the date for the presentation of the audited Financial Statements to the public.

Recommendation

That:

1. Council receives and notes the draft Financial Statements for the year ended 30 June 2022 and commentary on the draft Statements presented as Attachments 1, 2 and 3 to this report.

2. The Mayor, Deputy Mayor, Chief Executive Officer and Responsible Accounting Officer sign the statements on the preparation of the Financial Statements for the year ended 30 June 2022 in accordance with Section 413(2)(c) of the Local Government Act 1993 and requirements under the Local Government Code of Accounting Practice and Financial Reporting 2021-22 presented as Attachments 4 and 5 to this report.

3. The draft Financial Statements for the year ended 30 June 2022 be formally referred to Council’s External Auditor, Audit Office of New South Wales, in accordance with Section 413 of the Local Government Act 1993.

4. Council, in anticipation of receiving the Auditor’s Report, set the Council Meeting to be held on 12 December 2022 as the meeting at which the audited Financial Statements for the year ended 30 June 2022 and Audit Report be presented to the public in accordance with Section 418 of the Local Government Act 1993.

Options

1. Adopt the recommendation

Implications: Council will proceed in submitting the Financial Statements for the year ended 30 June 2022 to the Office of Local Government in line with the requirements of the Local Government Act.

2. Adopt part of the recommendation and make an alternative resolution

Implications: Council will not meet the required timeframes for the submission of the Financial Statements for the year ended 30 June 2022.

Background

Council’s Financial Statements for the year ended 30 June 2022 have been prepared and informally referred for audit.

In accordance with Section 413 of the Local Government Act 1993, Council must now formally refer these statements for audit. Prior to the completion of the audit, Council is required to provide its statement on the Financial Statements.

Section 413(2)(c) of the Local Government Act 1993 and the Local Government Code of Accounting Practice and Financial Reporting requires the Mayor, one other Councillor, the Chief Executive Officer and Responsible Accounting Officer to certify the following:

1. The General Purpose Financial Statements have been prepared in accordance with:

· Local Government Act 1993 (as amended) and Regulations made thereunder

· The Australian Accounting Standards and other pronouncements of the Australian Accounting Standards Board

· Local Government Code of Accounting Practice and Financial Reporting

And that to the best of Council’s knowledge and belief that the statements:

· Present fairly the Council’s operating result and financial position for the year; and

· Accord with Council’s accounting and other records

2. The Special Purpose Financial Statements have been prepared in accordance with:

· NSW Government Policy Statement Application of National Competition Policy to Local Government

· Division of Local Government Guidelines Pricing & Costing for Council Businesses - A Guide to Competitive Neutrality

· The Local Government Code of Accounting Practice and Financial Reporting

· The NSW Office of Water Best-Practice Management of Water and Sewerage Guidelines

And that to the best of Council’s knowledge and belief, the statements:

· Present fairly the operating result and financial position for each of Council’s declared business activities for the year, and

· Accord with Council’s accounting and other records

· Present overhead reallocation charges to the water and sewerage businesses as fair and reasonable

The General Purpose Financial Statements (Attachment 2) and Special Purpose Financial Statements (Attachment 3) have been prepared in accordance with the Local Government Code of Accounting Practice and Financial Reporting and applicable Accounting Standards (draft confidential copies are included in Councillors’ Information Folder).

The General Purpose Financial Statements are prepared on a consolidated basis. The information presented reflects all of Council’s activities including the General Fund, Water Fund, Sewer Fund and Southern Water Services Pty Ltd, a wholly owned subsidiary. It should be noted that all internal transactions are eliminated, including expenses relating to Council rates, water usage charges, waste management charges, etc. levied on Council activities.

It should also be noted that earlier Financial Statements also included Council’s Management Committees. While Council will continue to receive financial statements from, and monitor the financial wellbeing of its Management Committees they will no longer be included in the consolidated financial statements. In the context of the Financial Statements, Management Committees are immaterial individually and collectively. From an administrative perspective, Council received information from different Committees from one year to the next and often in an untimely manner. Their exclusion from the Financial Statements will simplify the preparation process and not detract from the information presented in the Statements.

The Special Purpose Financial Statements relate to activities that Council has declared as business activities under the National Competition Guidelines. Declared activities are further classified as either a Category 1 or Category 2 business depending on whether the annual turnover is above or below $2 million.

In preparing the Special Purpose Financial Statements, certain taxes and charges Council is not normally liable to pay must be calculated. These “notional” taxes include company income tax, land tax and payroll tax. These amounts are included in the Special Purpose Financial Statements but only as notional amounts.

The Financial Statements Commentary (Attachment 1) provides an overview of Council’s year-end financial results and key indicators and is consistent with the information provided at the Councillor Briefing on 19 September 2022.

It is important to note that the Office of Local Government have granted Shoalhaven City Council an extension to the submission date for the Financial Statements for the year ended 30 June 2022 by one month, to 30 November 2022. Council has applied for a further extension to 23 December as a precaution to allow sufficient time for the audit to be completed.

Statement by Management

To assist Councillors with their decision in respect of the recommendations to this report, the following statement by the Chief Executive Officer, Director - City Performance and Chief Financial Officer (Responsible Accounting Officer) is provided:

We acknowledge our responsibility for the preparation of the General Purpose and Special Purpose Financial Statements and we confirm, to the best of our knowledge and belief, the following:

· The Financial Statements have been prepared in accordance with the Local Government Act 1993 (NSW) (as amended) and Regulations made thereunder, Australian Accounting Standards and other pronouncements of the Australian Accounting Standards Board and the Local Government Code of Accounting Practice and Financial Reporting so as to present fairly Council’s operating result and financial position for the year.

· Further, the Special Purpose Financial Statements have been prepared in accordance with NSW Government Policy Statement ‘Application of National Competition Policy to Local Government’ the Division of Local Government Guidelines ‘Pricing & Costing for Council Businesses - A Guide to Competitive Neutrality’ and the NSW Office of Water ‘Best-Practice Management of Water and Sewerage Guidelines’ and present fairly the operating result and financial position of the activities and present overhead reallocation charges to the water and sewerage businesses as fair and reasonable.

· There have been no irregularities involving management or employees who have a significant role in the accounting and internal control systems or that could have a material effect on the Financial Statements.

· We have made available to the auditors all books of account and supporting documents and all minutes of meetings of Council.

· The financial statements are free of material misstatements, including omissions.

· The Council has complied with all aspects of contractual arrangements that could have a material effect on the Financial Statements in the event of non-compliance.

· There has been no non-compliance with requirements of regulatory authorities that could have a material effect on the Financial Statements in the event of non-compliance.

· We have recorded or disclosed, as appropriate, all liabilities, both actual and contingent, and have disclosed any guarantees that we have given to third parties.

· All material claims have been properly accrued in the Financial Statements. No other material claims in connection with litigation have been or are expected to be received.

· There are no formal or informal set-off arrangements with any of our cash and investment accounts. Except as disclosed in the financial statements, we have no overdraft arrangements.

Accordingly, we believe that it is in order for Council to adopt its statements of certification in relation to the Financial Statements which is as per Recommendation 2 to this report.

Review by the Audit, Risk & Improvement Committee

A meeting of the Audit, Risk and Improvement Committee (ARIC) has been scheduled for 21 November 2022 to review the draft Financial Statements presented to Council in this report. Any comments or recommendations made by ARIC will be reported to Council when the Financial Statements are presented to the public in December.

Next Steps

The draft Financial Statements have been informally referred for audit and the audit is progressing. As noted above, ARIC will be reviewing the draft Statements at a meeting to be held on 21 November. Council’s auditors will be in attendance at that meeting to provide an update on the progress of the audit and answer any questions from the Committee.

When the audit is completed, the auditors will provide a Closing Report and meet with Management at an Audit Clearance meeting. Upon receipt of the Audit Reports, Council will be able to lodge its Financial Statements with the Office of Local Government.

Community Engagement

When the audit is finalised, the audited Financial Statements and Audit Report are to be presented to the public at a meeting of Council in accordance with Section 418 of the Local Government Act 1993. It is proposed that the Financial Statements and Audit Report be presented to the public at the Ordinary Meeting of Council to be held on 12 December 2022. Achieving this is dependent on the completion of the audit and receipt of the Audit Reports. Public notice of this meeting will be made as required by legislation and the Financial Statements made available for inspection at Council’s offices and on the website accordingly.

Ordinary Meeting – Monday 14 November 2022

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CL22.583 DPOP 2022-23 - Quarterly Performance and Budget Report (July - September)

HPERM Ref: D22/432241

Department: Corporate Performance & Reporting

Approver: Kevin Voegt, Director - City Performance

Attachments: 1. DPOP 2022-23 - Quarterly Performance Report - July to September (under separate cover) ⇨

2. Quarterly Budget Review Statement – September 2022 (under separate cover) ⇨

3. Capital Projects Status Update September 2022 (under separate cover) ⇨

4. Completed Notices of Motion Report (councillors information folder) ⇨

5. Uncompleted Notices of Motion Report (councillors information folder) ⇨

Reason for Report

This report outlines Quarter 1 performance (July to September 2022) against actions and targets set in Council’s 2022-23 Delivery Program and Operational Plan (DPOP). Also, in accordance with Regulation 203 (1) of the Local Government (General) Regulation (2021), the responsible accounting officer must prepare and submit to Council, a Budget Review Statement after the end of each quarter. This has been carried out for the first quarter of the 2022/23 financial year.

Recommendation

That Council:

1. Receive the September Quarterly Performance Report on the 2022-2026 Delivery Program and 2022-2023 Operational Plan and publish on Council’s website.

2. Receive the September 2022 Quarterly Budget Review Report.

3. Adopt the budget adjustments as outlined in the September 2022 Quarterly Budget Report Document.

Options

1. Adopt the recommendation

Implications: Nil.

2. Adopt an alternative recommendation

Implications: Staff will be required to rework the quarterly performance and budget report in accordance with the alternative resolution.

Background

Section 404 of the Local Government Act 1993 requires the General Manager (Chief Executive Officer) to provide progress reports to the Council with respect to the principal activities detailed in the Delivery Program (Operational Plan) at least every 6 months. Furthermore, all Councils must continue to consider a Quarterly Budget Review report.

Clause 203 of the Local Government (General) Regulation 2021 requires the Responsible Accounting Officer (Chief Financial Officer) to prepare and submit to the Council, a Quarterly Budget Review Statement that shows, by reference, the estimates of income and expenditure set out in the Operational Plan and a revised estimate of the income and expenditure for the full financial year.

The Responsible Accounting Officer is also required to report as to whether they believe the financial position of the Council is satisfactory, having regard to the original estimate of income and expenditure.

The September 2022 Quarterly Budget Review Statement (QBRS) includes an analysis of the year-to-date result and the reasons for the major variances from the previously adopted Budget, by fund and for each Directorate. Any proposed changes to the budget are included in the attached September Quarterly Budget Review Statement.

Summary of DPOP Performance

The following performance has been measured on 30 September 2022 across each of the key themes outlined in the Community Strategic Plan - Shoalhaven 2032.

Theme	Progress snapshot
Resilient, safe, accessible and inclusive communities	92% actions on track or completed
Sustainable, liveable environments	93% actions on track or completed
Thriving local economies that meet community needs	95% actions on track or completed
Effective, responsible and authentic leadership	93% actions on track or completed

Key Highlights

Council has consistently delivered a range of services, projects and activities which work towards achieving the 11 key priorities outlined in Council’s Delivery Program 2022-26. Performance comments are provided in the report against each of the 156 actions and related targets in Council’s 2022-23 Operational Plan.

The complete DPOP Quarterly Performance Report (July - September) is included as Attachment 1.

Significant achievements between July and September 2022 include:

· Major preparation works completed at Rugby Park in time to host the 2022 NSW Koori Rugby League Knockout Carnival.

· Over 12 community events to build capacity were coordinated and supported during the quarter including: Thrive Together, Disability Expo, NAIDOC Awards, and Emergency Preparedness for older Adults.

· New Compliance Policy includes a risk-based compliance and regulatory framework has a completed and presented to Council.

· Cameras have been deployed on Council’s garbage collection trucks to analyse road defects.

· Tenderer appointed for supply of retail electricity for Council's Large Sites & Street Lighting for the next 8 years who has committed to build 2 new solar farms in the region.

· Alternative power supplies to critical Shoalhaven Water infrastructure is 95% complete

· 11 events were supported during the quarter including through the Kangaroo Valley Recovery Program, with a total return on investment a very strong $7.5M

· ‘Business after hours’ networking event held in Ulladulla on 21 September with around 70 attendees in partnership with the South Coast Centre of Excellence, Milton Ulladulla, and Shoalhaven Business Chambers.

· New customer request management system launched with a large number of requests categories now available online for the public to lodge requests 24 hours 7 days a week.

· Work Health and Safety team promoted “R U OK? Day” with site visits across Council’s workplaces to deliver healthy fruit snacks and mental health support material.

· Held two citizenship ceremonies with an average of 51 guests at each.

Requires Attention

The following six (6) Action items have been reported as requires attention at 30 September 2022. Full performance comments are in the attached report and remedial actions have been reported to senior management.

Ref.	Action	Quarter 1 Comment (summary) Full comments in attached report
1.1.01.08	Investigate the opportunities for bushfire resilient buildings, such as FORTIS House, to be constructed within the LGA.	There is interest from the FORTIS House Team to provide funds to build an exhibition home to showcase the resilience of the FORTIS House project. What is needed, is an allotment of land to erect this building. Once the allotment of land is located, a development application for the exhibition home will be needed. There will also need to be funds for staffing the facility. A project plan will need to be developed for this project and this is expected to be completed by 30/06/2023.
1.1.06.02	Undertake environmental health regulatory inspections to ensure compliance with legislative standards	Despite weather constraints, almost 100% of OSSMs have been completed, Food Shops have fallen behind due to staff on sick leave and higher duties required from the Food team. Skin Penetration is on target to be completed by end of October.
1.1.06.05	Undertake retail food regulatory inspections to ensure compliance with legislative standards	Food shop inspections have been undertaken in accordance with available resourcing.
2.1.06.02	Identify and mitigate risk to critical water supply and wastewater assets	Risk identification has been completed. Mitigation measures now in development with Operations staff.
2.2.02.01	Assess and determine development applications within legislative timeframes and community expectations	Council continues to improve processing times through recruitment processes, continual review of the DA assessment process, processing of older applications from the system and working with the Department of Planning and Environment to ensure agency referrals are received in a timely fashion.
2.3.03.02	Support organisational environmental due diligence	Assessments being conducted for Council projects have included 12 Review of Environmental Factors (REF) that have begun for dog off-leash areas as part of the Dog Policy review. Eight (8) REFs are being prepared for Shoalhaven Water (for Asset Protection Zones around sewage pumping stations) and are nearing completion but were due by end of September so are a top priority.

On Hold

The following five (5) Action items have been reported as on hold.

Ref.	Action	Quarter 1 Comment (summary) Full comments in attached report
1.1.02.03	Work with the NSW Government to finalise the Crown Lands plans of management	Draft generic Plans of Management, and site-specific Plans of Management (PoM) are currently with the Minister to seek approval to proceed to public exhibition. Crown lands have not started reviewing the PoMs. Draft PoMs for showgrounds have been reported to Council and referred to Property for Native Title comment and will be forwarded to the Minister once Native Title comment is received.
3.1.01.02	Review and update Council's Employment Land Strategy	The employment land strategy will be reviewed on appointment of vacant positions within the Directorate.
4.2.01.05	Formalisation of Legislative Compliance Framework	Awaiting additional input prior to proceeding further (budgetary constraints / resourcing constraints / planning delays / community issues / design unresolved)
4.2.08.02	Create a strategy with measurable actions for Council's strategic property assets, including investigation into alternate revenue streams	It is intended to pursue a new Property Strategy that takes a different strategic approach and direction to the previous 2016/2017 Property Strategy. Early work commenced however has been placed on hold awaiting the appointment of a new Strategic Property Manager.
4.2.09.01	Implement the Holiday Haven Business Plan to achieve investment and growth targets	The Business plan is awaiting approval by Management.

Additional Operational Plan Actions arising from Notices of Motions (NoM’s)

Between 1 July 2022 and 30 September 2022, Council has endorsed 27 Notices of Motion (NoMs) which can be categorised as follows:

· Twenty (20) NoM’s relate to information, donations / community support, maintenance / traffic requests, advocacy or Development Application call-ins and covered in business-as-usual operations.

· Seven (7) NoM’s relate to projects that required additional resources being added to the Operational Plan 2022-23. These Actions can be further categorised into the following areas:

o Infrastructure Upgrades (1)

o Forward Planning (6)

In addition, there are 21 NoM’s resolved prior to 1 July 2022 which are currently categorised as ‘in progress’.

Funding was allocated to the respective projects during the Quarterly Budget reviews. The full report of Completed and Uncompleted Notices of Motion’s have been attached as Attachment 4 and Attachment 5, respectively.

September 2022 Quarterly Budget Results Overview

Shoalhaven City Council was severely impacted by the recent East Coast Low weather pattern, which has brought unprecedented rainfall across all coastal areas of NSW making the civil infrastructure damage for this natural disaster exceeding $50M which is larger than that of the Currowan fire in 2019/20.

Council has reprioritised works to ensure communities can be accessed and resources delivered to those most in need. Council is focusing on repairing critical community infrastructure that was damaged as a result of the natural disaster and this change in priorities has a direct impact on allocations of the Council budget.

As emergency repairs are taking priority, Council will continue to monitor the planned capital works program and report any issues that may arise with the ability to complete the works.

The General Fund operating expenses are 9.15% above the year to date adopted budget ($76M actuals vs. $70M budget, unfavourable) mainly due to an increase in emergency repairs ($3.1M), depreciation expense ($1.4M), road maintenance ($631K), tourist parks ($280K), waste management ($245K), mechanical services ($215K) and parks maintenance costs ($125K). The emergency repair costs will be covered by natural disaster funding. Council is now an “Opt In” Council where all of the repair costs will be covered by the funding but there will be an out-of-pocket amount of approximately $585K for each event (March and July 2022) that will need to be found. This will be considered in future quarterly reviews. If Council were to stay as “Opt Out”, there would be $1.5M of costs that could not be claimed to date.

The General Fund revenue is currently 1.4% ahead of the year to date adopted budget, mainly due to new grants received and not budgeted. During the September Quarterly Budget Review it was identified that there will be shortfall of the income for On-Site Sewer Management Services ($390K), due to the phasing of the renewals being levied annually on the rates notice instead of the previous 5 year renewal. This shortfall was not able to be funded during this quarterly review and will be considered in future reviews.

Water and Sewer funds budget results are close to the budget forecast with the revenue and operating expenses slightly exceeding budget.

The September budget results indicate that the Council is in a strong budget position and remains financially sustainable with an acceptable level of working capital and a sufficient level of unrestricted cash.

The working capital position of the General Fund as at 30 September 2022, is 14.82% of the current liabilities, above the benchmark of 10%:

Description		($‘000)
Add	Current Asset	180,470
Less	Current Liabilities	100,813
Calc	Net Current Asset	79,657
Less	External restrictions	98,963
Less	Internal restrictions	25,989
Add	Provisions (Liabilities not expected to settle in 12 months)	19,163
Add	Current liabilities that are covered by externally restricted assets	41,072
Calc	Available working capital	14,941
Calc	Working Capital as a % of Current Liabilities	14.82%

Management continues to monitor the working capital position of the Council and continues to report on the key liquidity indicators to the Council on a monthly basis.

Financial Impact of COVID-19

The eligibility for developer contributions discount subsidy closed on 31 March 2022. Applications for the subsidy are open for two years after the development consent has been issued. The amount of subsidy provided for the first quarter was $39K for S7.11 and nil for S64.

General Fund Budget and Quarterly Review Movements

The net operating result before capital grants and contributions of the General Fund as at 30 September 2022 Quarterly Budget Review, was a surplus of $74.5M, a $5.5M unfavourable variance to the budgeted $80M. This unfavourable variance is largely driven by the additional emergency maintenance works. It is important to note that the September Quarterly Budget adjustments will address the majority of the unfavourable budget variations.

The unrestricted cash balance movement was $203K less than the budgeted amount of $5.1M (unfavourable). The primary reason for this unfavourable movement is the higher expenditure for emergency repairs which is offset by the capital expenditure being less than anticipated.

The following table presents a high-level summary of the budget and movements for the General Fund for 2022/23:

($'000) Favourable / (Unfavourable)	Current Adopted Budget	September QR Adjustments	September QR Revised Budget	YTD Adopted Budget	YTD Actuals
Net Operating Result	84,976	(10,686)	74,290	94,339	90,254
Net Operating Result before Capital Grants & Contributions	3,899	(16,441)	(12,542)	79,989	74,475
Net Cash & Investments Movement	(9,352)	(54,936)	(64,288)	(16,348)	(1,417)
Unrestricted Cash Movement	0	0	0	(41,078)	(4,403)

The main contributing factor for the change to the operating result before capital grants and contributions (-$16.4M) is an increase in emergency repairs expenditure ($6M, $4M returned from grant reserve, $2M transferred from capital), depreciation expenses ($5.6M), roads maintenance transfer from capital ($2M), environmental management transfer from capital ($1.3M), waste management ($773K from reserve) and other changes across the general fund.

Capital grants and contributions budget is proposed to be increased by $5.7M (favourable) to reflect capital grants approved for Stronger Country Communities, Boongaree and Ulladulla Skate Park.

During the June Quarterly Budget Review $45M of unspent funds were returned to reserves and have been reallocated in this quarterly budget review.

It is important to note that proposed budget adjustments have NIL on unrestricted cash movement which demonstrates that Council continues to manage its budget effectively despite having to address budget shortfalls caused by the unforeseen circumstances such as the natural disasters.

During the first quarter of this financial year, various Council minutes have been resolved to be funded in future quarterly budget reviews. Below is a table of these items for funding consideration showing the projects that could be funded and the ones where funding was not able to be found.

Project	Funding Requested ($'000)
Project	Funding Requested ($'000)
Funded
MIN22.302 - Shoalhaven Arts Foundation	150
MIN22.538 - Freedom of Entry Ceremony	50
MIN22.724C - Fixing Country Bridges funding shortfall (from Local Road Repair Program)	130
MIN22.535 - RFS 'Get Ready' Campaign (funded from waste management)	100
MIN22.567 - Wowly Creek scoping and feasibility study (subsequently reported to Council 31 Oct 2022, MIN22.814)	No Impact

Not Funded
MIN22.135 and MIN.22.286 – annual allocation for masterplans for parks and reserves	300
MIN22.383 – Detailed design new Kangaroo Valley Playground	50
MIN22.745 - Bawley Point Footpath (Barrie's Way)	60
MIN22.720 - June QR deferred projects to be reinstated at future quarterly budget reviews	670

The list of deferred projects from MIN22.720 are:

2022/23 Deferral into future years (unfunded)	($'000)
Installation of Lions Club Shed - Proposed 21 Norfolk Ave	270
Boree St - LRRP Carpark #5 Bitumen Seal Urban Upgrade	150
Beach Access Upgrades	200
Review Community Infrastructure Strategic Plan	50
	670

The Not Funded items above will be re-listed for consideration at future budget reviews.

Further, in response to MIN22.718 regarding a possible second round of applications for the Community Donations Program, the CEO considers appropriate to roll the unspent funds into the 2023/24 budget. This will be actioned at the end of the financial year together with other carry forwards and revotes.

For a detailed list of budget variations and proposed budget adjustments please refer to Attachment 2 – Quarterly Budget Review Statement – September 2022.

Capital Projects Progress Overview

Attachment 3 provides a detailed update as at 1 November 2022 on the progress of 128 major capital projects with the annual budget allocation of over $400K for each project (total budget of $259M) which represents 81% of the adjusted annual capital budget of $320M.

As at 1 November 2022, 100 projects remain on track, 3 completed, 2 are under close monitoring and 23 were flagged as on hold due to pending approvals from other government bodies and other external factors.

Water Fund Budget and Quarterly Review Movements

The net operating result before capital revenue of the Water Fund is a $1.2M deficit when compared to the year to date forecasted deficit of $1.1M. The unfavourable variance is largely due to additional overtime and labour costs for repairs and maintenance of infrastructure ($315K), partially offset by an increase in revenue collected from fees ($149K).

The net cash and investments movement has reduced compared to the adopted budget. All cash held by the water fund is restricted.

($'000) Favourable / (Unfavourable)	Current Adopted Budget	September QR Adjustments	September QR Revised Budget	YTD Adopted Budget	YTD Actuals
Net Operating Result	3,280	905	4,185	(728)	(98)
Net Operating Result before Capital Grants & Contributions	(517)	5	(512)	(1,101)	(1,238)
Net Cash Movement	(15,679)	1,506	(14,174)	(707)	(1,044)

Sewer Fund Budget and Quarterly Review Movements

The net operating result before capital revenue of the Sewer Fund is a surplus of $2.4M when compared to the year to date forecasted surplus of $2.3M. The primary reason for this unfavourable variance is the additional overtime and labour costs for repairs and maintenance of infrastructure ($221K) and expenditure on material and services ($90K).

The net cash and investment movement has reduced compared to the adopted budget.

($'000) Favourable / (Unfavourable)	Current Adopted Budget	September QR Adjustments	September QR Revised Budget	YTD Adopted Budget	YTD Actuals
Net Operating Result	8,817	(37)	8,740	2,603	2,708
Net Operating Result before Capital Grants & Contributions	6,365	(37)	6,288	2,303	2,416
Net Cash Movement	(38,828)	3,261	(35,607)	(8,386)	(7,547)

Communication Strategy

Subject to Council’s endorsement, the Quarterly Performance report will be made available on Council’s website. A range of other communication methods may also be used to communicate the outcomes of the report including performance highlights across Council’s social media platforms.

Ordinary Meeting – Monday 14 November 2022

Page 0

CL22.587 Proposed Voluntary Planning Agreement - Part of Mundamia Urban Release Area

HPERM Ref: D22/436072

Department: Strategic Planning

Approver: Carey McIntyre, Director - City Futures

Reason for Report

The reason for this report is to obtain in-principle support to commence the process of entering into a Voluntary Planning Agreement (VPA) with the owner/developer (Jemalong Mundamia Pty Ltd) of Lot 30 DP 1198692, George Evans and Jonsson Roads, within the Mundamia Urban Release Area (URA).

Recommendation

That Council:

1. Provide in-principle support to enter into a Voluntary Planning Agreement (VPA) with the owner and developer (Jemalong Mundamia Pty Ltd) of Lot 30 DP 1198692, George Evans and Jonsson Roads, in the Mundamia Urban Release Area in relation to:

a. The design and construction of Roundabout 01 by the Developer - Council will contribute 58% of the additional cost of the roundabout.

b. The design and construction of Roundabout 03 by the Developer - Council will contribute 18% of the additional cost of the roundabout.

c. The dedication or acquisition, by Council, of any land adjoining the roundabouts required to facilitate construction, except where the Developer owns the required land, where the land will be dedicated to Council at no cost.

d. The design and construction of the threshold on Jonsson Road by the Developer - Council will contribute 100% of the additional construction cost.

e. The design and construction of the Community Hall by the Developer, as approved via DA20/1652.

f. Conditioned s7.11 contributions for project 01CFAC0014 (Community Hall) will not be payable by the Developer.

g. The dedication of the proposed central public reserve (6,344m²) to Council by the Developer, at no cost.

h. Payment of maintenance costs for the roundabouts and community centre by the Developer, if required.

i. Bushfire management measures that need to be considered in the VPA by the Developer, following the resolution of the deferred commencement conditions, if any.

2. Endorse the allocation of deleted funds, where available, to cover Council’s contribution and any surplus value relating to the delivery of the community hall (01CFAC0014).

3. Delegate authority to Council’s Chief Executive Officer, or his delegate, to:

a. Finalise negotiations including acceptance of plans and independent costings of works.

b. Prepare the draft VPA and associated Explanatory Note.

c. Publicly exhibit the draft VPA and associated Explanatory Note for a minimum period of 28 days as required by legislation.

d. Enter into the Voluntary Planning Agreement consistent with the detailed key terms in Part 1 above, except where objections or substantial issues are raised as a result of public notification, in which case the Voluntary Planning Agreement is to be reported to Council before it is entered into.

Options

1. As recommended.

Implications: The proposed VPA will result in a positive public benefit through the facilitation and delivery of a range of public infrastructure items in the Mundamia URA. This subdivision is the first development in the URA.

Further, in accordance with the NSW Government’s approval, the VPA needs to be entered into prior to the issue of the first Construction Certificate and the development proceeding.

2. Adopt an alternative recommendation.

Implications: An alternative recommendation may affect the timely delivery of the first component of the Mundamia URA, and subsequently the delivery of a range of public infrastructure items for this new community.

Background

On 23 December 2019, State Significant development consent (SSD7169) was granted by the NSW Government for a 308 lot residential subdivision, neighbourhood safer place and open space/drainage reserves at Lot 30 DP 1198692, George Evans and Jonsson Roads, within the Mundamia URA. Figure 1 shows the subject land in the URA and Figure 2 shows the approved subdivision layout, as modified.

Figure 1: Lot 30 DP 1198692 in the Mundamia Urban Release Area (the Site)

Figure 2

Approved Subdivision Plan (Allen Price and Scarratts),

(Notated with relevant infrastructure items covered in the consent)

The Mundamia URA is a 57 hectare site to the west of the Nowra urban area that has been identified as a future residential area in the Nowra-Bomaderry Structure Plan since 2006. It is anticipated that the URA will provide land for at least 500 new homes. The future community will be supported by a range of infrastructure, including open space, play spaces, a community centre, drainage and roads.

The development controls for the Mundamia URA have been in place in the Development Control Plan (DCP) since 2014. Similarly the URA was also added to the Contributions Plan since 2014.

Council is also a landowner in the URA, owning the land immediately to the west of the approved subdivision.

The development consent requires the Developer to enter into a VPA outlining the cost apportionment, land contributions and delivery of the following works, prior to the issue of the first Construction Certificate:

· The roundabout at the intersection of Road 1 and George Evans Road (Roundabout 01 above).

· The roundabout at the intersection of Road 1 and Road 14 at the entry threshold north of the intersection of Jonsson Road and Road 16 (Roundabout 03 above)

· The combined neighbourhood safer place/community hall

· Other bushfire management measures required by the consent.

The proposed VPA seeks to facilitate satisfactory arrangements for these works.

2018 Consideration of the proposed VPA

In 2018, Council considered a request for a VPA in response to the then draft consent (and a specific draft consent condition) that had been issued at the time by the NSW Government.

The scope of the proposed VPA was for contributions towards the cost of three specific traffic calming devices, as outlined in Table 1. This is the “additional cost” to augment the base road design to accommodate the additional roundabouts and entry threshold.

The detailed traffic assessment supporting the development application found that additional speed control facilities were warranted due to the 1.2km of collector road traversing through the middle of the combined developments, and the prevalence of through traffic due to the existing Thomson’s Point Reserve which is popular local walking and climbing location. The NSW Government accepted the need for these additional facilities, however considered that the applicant and Council, should both contribute towards the provision of the additional infrastructure, in proportion with the traffic they will theoretically generate.

Table 1: 2018 Proposed VPA Particulars

Infrastructure	Additional cost (estimated, 2018)	Council apportionment	Council’s contribution (2018)
Roundabout at intersection of road 1 and George Evans Road	$134,526	58%	$78,025.08
Roundabout at intersection of Road 14 and Jonsson Road	$99,501	18%	$17,910.18
Threshold treatment at intersection of road 16 and Jonsson Road	$40,044	100%	$40,044
TOTAL			$135,979.26

On 18 September 2018, Council’s Strategy & Assets Committee resolved (MIN18.718) to:

1. Provide ‘in-principle’ support to enter into a Voluntary Planning Agreement as per the draft consent issued by the NSW Department of Planning and Environment;

2. Upon determination of the application, by the NSW Department of Planning and Environment, process the draft Voluntary Planning Agreement as per legislative requirements (the draft VPA needs to be reported to Council and exhibited); and

3. Supports ‘in principle’ the request for financial contribution to the construction of traffic calming devices associated with this proposed subdivision including allocation of the necessary funds for contribution to the necessary traffic calming devices to that extent Council confirms its share (calculated to be $135,979.26) will be payable upon completion of the works as requested by the applicant.

Current Proposal

Since the issue of the consent in 2019, the Developer has been resolving a range of ‘deferred’ commencement conditions. Negotiations and discussions on the VPA particulars have been ongoing through this process, and the Developer’s current proposal for the VPA is outlined below:

· The Developer will design and construct Roundabout 01 (at the intersection of George Evans Road and Road 1). Council will contribute 58% of the actual construction cost.

· The Developer will design and construct Roundabout 03 (at the intersection of Road 1 and Jonsson Road). Council will contribute 18% of the actual construction cost.

· Council will dedicate or acquire any land adjoining the roundabouts required to facilitate construction. If the Developer owns the required land, this will be dedicated at no cost to Council.

· The Developer will design and construct the threshold on Jonsson Road. Council will contribute 100% of the actual construction cost.

· The Developer will design and construct the combined Community Hall and neighbourhood safer place as approved via DA20/1652. Note: this is a requirement of the consent. Contributions for s7.11 project 01CFAC0014 (Mundamia URA Community/Childcare Centre) will not be payable. Council is to reimburse the shortfall between the 01CFAC0014 contribution value and the actual construction costs, over a 5-year period.

· The proposed central public reserve (6,344m2) will be dedicated to Council at no cost.

Each of these matters are discussed further in Table 2 below.

Table 2: Discussion of proposed VPA scope – Staff Recommendation

Proposed VPA Item

Council Staff Comment

The Developer will design and construct Roundabout 01 (at the intersection of George Evans Road and Road 1).

Council will contribute 58% of the actual construction cost.

The proposal is satisfactory, subject to the following:

· The design is to consider the George Evans Road design and road changes required by the consent.

· Council’s resolution was to pay the respective percentage of the additional cost of the roundabouts (i.e., the difference between the ‘no roundabout’ and ‘roundabout’ scenarios).

· Possible maintenance arrangements for these infrastructure elements will need to be considered further.

The Developer will design and construct Roundabout 03 (at the intersection of Road 1 and Jonsson Road).

Council will contribute 18% of the actual construction cost.

Council will dedicate or acquire any land adjoining the roundabouts required to facilitate construction.

If the Developer owns the required land, this land will be dedicated to Council at no cost.

It is understood that the only land that needs to be dedicated for the roundabout infrastructure is currently in the ownership of Council or the Developer. The VPA can address the dedication of this land as road, to the extent it is required.

The Developer will design and construct the threshold on Jonsson Road.

Council will contribute 100% of the actual construction cost.

Council’s contribution is 100% of the additional cost of the threshold (i.e., the difference between the ‘no threshold’ and ‘threshold’ scenarios).

The Developer will design and construct the Community Hall as approved via DA20/1652.

Contributions for 01CFAC0014 will not be payable.

Council is to reimburse the shortfall between the 01CFAC0014 contribution value and the actual construction costs, over a 5-year period.

The Community Hall proposal is satisfactory, subject to the following:

· The Developer has confirmed that there is no cost difference between the design of a Community Hall and the upgrade to a Neighbourhood Safer Place (NSP) standard as required by condition F12 of the consent.

· The offset of the conditioned 01CFAC0014 contributions is acceptable.

· Possible maintenance arrangements for this infrastructure element will need to be considered further.

· Parking is included in accordance with the consent (DA20/1652).

· The 5 year reimbursement timeframe is not accepted. If funds are not immediately available for the reimbursement of the surplus value (i.e., deleted funds), reimbursement will occur over time as s7.11s are collected.

The Developer will dedicate the proposed central public reserve (6,344m²) to Council at no cost.

The central open space proposal is satisfactory, noting that no embellishment is proposed and contributions for this project (01OREC0014) are still payable as per the consent.

Interest was sought from the Developer to work with Council to deliver the embellishments upfront for the new community. This would be via a contributions offset relating to 01OREC0014. The Developer declined and will therefore pay monetary contributions. Council will need to deliver the embellishments at the relevant stage.

The VPA condition in the consent also requires consideration of any bushfire management measures that need to be considered by the agreement following the resolution of the ‘deferred’ commencement conditions. The Developer has advised that there are none, however this will need to be confirmed as the negotiations continue. Council Staff delegation is requested to manage any VPA particulars required to manage bushfire management measures, if required.

To progress with a draft VPA, the plans for the infrastructure, including the community hall, need to be accepted by staff. Once the designs have been accepted by Council, the infrastructure/works can then be costed.

Delegation Opportunities

In accordance with Council’s Planning Agreement Policy, Council may resolve to delegate authority to Council’s Chief Executive Officer, or his delegate, to negotiate, publicly notify, enter into and register the Planning Agreement. It is recommended that Council extend delegation for the above functions, unless there are objections or substantial issues raised as a result of public notification, in which case Council will receive a further report prior to finalisation.

Recommendation

Due to the public benefit realised from the delivery of a range of infrastructure items associated with this important URA, it is in Council’s interest to support the proposal, finalise negotiations and proceed to prepare and publicly exhibit the draft VPA for review and comment.

Community Engagement

The Environmental Planning and Assessment Regulation 2000 requires that draft VPA be publicly exhibited for a minimum period of 28 days. Community engagement will be encouraged through the public exhibition period.

Policy Implications

As a result of the VPA, changes to the Shoalhaven Contributions Plan 2019 (the Plan) will be required to address actual costs, additional infrastructure items/elements (e.g., additional roundabouts and threshold not currently in the Plan) and changes to the location of certain items. This can be undertaken as part of a future amendment to the Plan and would be reported separately at the appropriate point in time.

This VPA only addresses the matters identified in condition C3 of the consent. It is noted that another agreement may be required to progress other infrastructure elements and costing arrangements relating to the development. This will be reported to Council in due course, should the staff delegations in Council’s Planning Agreement Policy or Works in Kind Policy not extend to the scope.

Financial Implications

Council Contribution for community hall construction

The Developer has requested that Council cover the shortfall between the contributions payable for 01CFAC0014 and the actual construction value of the community hall (i.e., the surplus value).

No contributions have been collected for 01CFAC0014 to date as this is the first development in the project catchment. As such, it would be appropriate for the shortfall to be covered by ‘deleted funds’. This is consistent with Council’s resolution (MIN19.212(4)) to support the provision of seed funding for community infrastructure projects. However, depending on the timing of the infrastructure delivery and the terms within the VPA, there may not be adequate deleted funds available at the time. Should this be the case, it would be appropriate for reimbursement of the surplus value to occur overtime as s7.11s are collected for 01CFAC0014. The five-year time frame for reimbursement is not supported.

Costs associated with the drafting, exhibition and entering into the VPA

In accordance with Council’s Planning Agreement Policy, the Developer will cover Council’s costs (direct and incidental) relating to the negotiation, preparation and entering into the agreement (including associated legal costs and independent costings) and enforcing the agreement.

Ordinary Meeting – Monday 14 November 2022

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CL22.589 Report Back - Short Term Protection Options - Former Anglican Church, Huskisson

HPERM Ref: D22/445321

Department: Strategic Planning

Approver: Carey McIntyre, Director - City Futures

Reason for Report

The purpose of this report is to respond to Part 4 of Council’s 20 September 2022 (MIN22.618) resolution that required the following:

“Report back to Council as soon as possible on additional measures that Council can take to immediately protect the site while its heritage listing is being pursued.”

Recommendation

That Council

1. Receive and note the options outlined in this report.

2. Note that the landowner has been advised in writing that development consent is required to carry out scraping work within 1m of lot boundaries and a written undertaking sought to the effect that no works will be done in that area unless and until development consent is obtained

Options

The following options are presented for Council’s consideration and are not necessarily mutually exclusive.

1. Take the necessary steps to enable Council to seek an injunction in the event that scraping works are undertaken within 1 m of lot boundaries without the required development consent.

Implications: If scraping is not undertaken within 1m of lot boundaries, it could be undertaken as ‘exempt’ development. If scraping is undertaken within 1m of lot boundaries, development consent is required.

Council has written to the owner of Lots 7 and 8 and advised that development consent is required to carry out the scraping works within 1m of lot boundaries and sought a written undertaking to the effect that no works will be done in that area unless and until development consent is obtained. The letter also foreshadowed Council seeking an injunction if necessary if the undertaking is not provided.

This option would require legal services to be provided in advance so that an injunction could be sought at short notice, if necessary.

2. Write to the NSW Minister for Heritage and ask that an Interim Heritage Order (IHO) be made for the site under s.24(1) of the Heritage Act.

Implications: If the Minister is not prepared to make an IHO, Council could request that the Ministerial Order be amended or a new authorisation under s.25 of the NSW Heritage Act be issued, that enables the Council to make an IHO specific to the site.

3. Consider:

a. Writing to the NSW Heritage Council requesting that it revoke the s.140 Excavation Permits that have been issued.

b. Writing to the Secretary of the NSW Department of Planning and Environment requesting that the Secretary consider making a stop works order and/or recommend that the Minister issue an Interim Protection Order under the NPW Act over the Site. Council could also request that the Minister consider declaring the Site to be an Aboriginal place by notice in the Gazette.

Implications: If a permit is revoked (not guaranteed), the holder of the permit may appeal to the Minister of Heritage (under s145) but does not have the ability to seek a merits review in the Land and Environment Court.

4. Seek assurance from the landowner that the surface scraping will be deferred for an appropriate period while offering to facilitate with external independent assistance a negotiation/conciliation process with the key parties.

Implications: This option could only succeed if the key parties are willing to explore a potential negotiated outcome. This appears to be unlikely at present, given the nature of the issues and conflicting views and interests of the key parties. Furthermore, Council currently has no legal obligation or role to try and facilitate a negotiated outcome. However, given the strong community interest in former Huskisson Church site, it could be argued that Council should offer to assist negotiations between the key parties.

Background

As a result of a Mayoral Minute considered by Council on 20 September 2022, it was resolved as follows (MIN22.618):

That Council

1. Affirms that it fully supports the application made to the Department of Climate Change, Energy, the Environment and Water by the Jerrinja LALC, seeking a declaration of emergency protection for lots 7 and 8 in DP 758530 on the corner of Hawke, Bowen and Currambene Streets, Huskisson NSW (including the former Anglican Church at Huskisson).

2. Commence the process to immediately list the Former Anglican Church, Huskisson and any associated items on the site (including Lots 7 and 8 Section 3 DP 758530) as a ‘Heritage Item’ of local significance in Schedule 5 of the Shoalhaven Local Environment Plan 2014, including the preparation of an updated statement of heritage significance and any other required supporting information

3. As part of the Gateway determination submitted to the NSW Department of Planning and Environment, note that although a development consent for the relocation of the church has been issued and commenced, that this is not the will of the current Council elected in December 2021.

4. Report back to Council as soon as possible on additional measures that Council can take to immediately protect the site while its heritage listing is being pursued.

5. Confirm 29 September 2022 as the date for a comprehensive briefing on the matter with Councillors and stakeholders.

This report specifically addresses Part 4 of the resolution.

Matters Considered

The following matters have been investigated:

a) Council’s ability to make an Interim Heritage Order (IHO) over the site, having regard also to development consent DA18/2102 and the s.140 Excavation Permit that have been issued for the site;

b) Any short-term protection options under the NSW National Parks and Wildlife Act 1974 (NPW Act) potentially available to Council or the Secretary of the relevant NSW Government Department;

c) Any short-term protection options available under the NSW Environmental Planning and Assessment Act 1979 (EPA Act), including whether a ‘stop work’ order may be given;

d) Process for seeking an injunction under the EPA Act and/or NPW Act, including the steps that could be taken now to prepare for this.

Summary

· Short of seeking an injunction to prevent the scraping works within 1m of each Lot boundary, there are presently limited options for the Council to take to prevent the scraping works from proceeding.

· Council cannot make an IHO for the site whilst the development consent DA18/2102 and the s.140 Excavation Permits are in force – see explanation below. It also cannot issue a ‘stop work’ order under the EP&A Act to stop the scraping from proceeding.

· Legal precedent indicates that a Court is unlikely to find that the possibility that Aboriginal remains exist on the Site, and nothing more, is sufficient to attract the protections which apply under the NPW Act, notwithstanding that there may be a strongly held belief in the community that such remains are present.

· Aside from taking steps to enforce the EPA Act with respect to the requirement to obtain development consent for earthworks within 1 m of lot boundaries, the Council’s present options to prevent the scaping works from proceeding are limited to making representations to various NSW Ministers, the NSW Heritage Council, and the Secretary of Department of the NSW Planning and Environment for intervention. This includes asking the NSW Heritage Minister to make an IHO for the Site, or making a new authorisation allowing the Council to do so. It also includes requesting the making of a ‘stop work’ or interim protection order under the NPW Act, or declaring the Site to be an ‘Aboriginal place’. Further details of these options are set out below.

Interim Heritage Order (IHO)

Council was authorised by the NSW Minister of Heritage to make IHO’s by a Ministerial Order published in the Government Gazette on 12 July 2013, subject to conditions. The conditions specified in Schedule 2 of the Order contain important qualifications on the ability of the Council to make an IHO in this case. Of particular significance/relevance are conditions (2)(d) and (4).

Condition 2(d) is in the following terms (emphasis added):

A council must not make an IHO where: … (d) a development consent (other than a complying development certificate), has been granted in relation to the item that permits the item to be harmed, and the development consent is still in force.

Condition (4) is in the following terms (emphasis added):

A Council must not make an IHO in respect of an item (which includes a building, work, relic, or place) that is subject to an approval, consent, licence, permit, permission or any other form of authorisation that requires or permits the item to be harmed and that is issued by the Crown, an officer or employee of the Crown or a Minister.

What options are available to Council?

The options available to Council are outlined below:

1. Write to the landowner and put them on notice of the Council’s view that development consent is required to carry out the scraping works within 1m of lot boundaries and seek a written undertaking from them by a particular date, to the effect that no works will be done in that area, unless and until development consent is obtained. This letter would foreshadow the Council’s intention to seek an injunction if the undertaking is not provided. See point 4 below.

Note: Council wrote to the landowner in early October 2022, noting the community concern re the possible scraping and that the permit has a range of conditions that need to be considered and complied with. The letter requested that the applicant not proceed with the scraping and continue the dialogue with Council and the community re the future of the site.

2. Write to the NSW Minister for Heritage and ask that an IHO be made for the Site under s.24(1) of the NSW Heritage Act. If the Minister is not prepared to make an IHO, the Council could then request that the Ministerial Order be amended or a new authorisation under s.25 of the Heritage Act be issued that enables the Council to make an IHO specific to the Site.

3. Consider:

a. Requesting the NSW Heritage Council to revoke the s.140 Excavation Permits that have been issued;

b. Writing to the Secretary of the NSW Department of Planning and Environment and request that the Secretary consider making a stop works order and/or recommend that the Minister issue an Interim Protection Order under the NPW Act over the Site. The Council could also request that the Minister consider declaring the Site to be an Aboriginal place by notice in the Gazette.

4. If Council wishes to be prepared to seek an urgent injunction at short notice, the necessary Summons, Notice of Motion and supporting affidavit would need to be drafted and Counsel briefed.

Update - Application for Emergency Protection under Federal Legislation

It is understood that the application for emergency protection lodged by the Jerrinja Local Aboriginal Land Council (LALC) under the Commonwealth’s Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is still being assessed by the Department of Agriculture, Water and Environment (DAWE). Council Staff will continue to liaise with DAWE officers and update the Council if/when a decision is made.

Update - Heritage Listing Process

Part 2 of Council’s resolution on 20 September 2022 was to:

Commence the process to immediately list the Former Anglican Church, Huskisson and any associated items on the site (including Lots 7 and 8 Section 3 DP 758530) as a ‘Heritage Item’ of local significance in Schedule 5 of the Shoalhaven Local Environment Plan 2014, including the preparation of an updated statement of heritage significance and any other required supporting information

As advised at the Councillor briefing on 29 September 2022, the Heritage listing process involves the preparation of a Planning Proposal (PP) under part 3 of the EPA Act. There are 6 stages in the PP process:

1. Pre-lodgement

2. PP preparation (including supporting information)

3. Gateway determination

4. Post gateway (addressing gateway conditions)

5. Public exhibition & assessment

6. Finalisation

A pre-lodgement meeting was held with the Department of Planning and Heritage NSW on 13 October 2022 and early work has commenced on preparing the PP. The PP will need to be supported by an updated heritage assessment prepared by an appropriately qualified heritage consultant. In accordance with Council’s procurement procedures, a project brief is being prepared to enable fee proposals to be sought for this key supporting information.

Financial Implications

The options outlined in this report would need to be funded using Council’s existing resources and internal budget allocations (e.g. for procuring legal services).

If the landowner were to undertake work without the necessary approval (i.e. surface scraping within 1m of property boundaries) Council could seek an injunction, in which case, the usual rule is that the unsuccessful party is ordered to pay the successful party’s costs.

Risk Implications

As noted above, if Council does ultimately seek an injunction (in the event that scraping commences within 1m of any property boundaries without development consent) and Council is unsuccessful, costs are likely to be awarded against Council (The reverse is also true, however, this is not a risk to Council).

If Council prepares to seek an injunction but the need does not arise (because scraping does not occur within 1m of any property boundaries) any costs incurred by Council will not be able to be recovered.

Ordinary Meeting – Monday 14 November 2022

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CL22.590 Proposed Land Disposal - North Crescent Culburra Beach

HPERM Ref: D22/173460

Department: Technical Services

Approver: Craig Exton, Manager - Technical Services

Attachments: 1. Plan of Subdivision of part of North Crescent for Title Issue and Road Closure ⇩

Reason for Report

This report provides Council with an opportunity to consider the sale of part North Crescent Culburra Beach, being part of a closed Council Road, to the adjoining landowners. The proposed land disposal relates to Lots 2, 3 and 4 DP 1287563 as shown in Attachment 1 (D22/446587).

Recommendation

That Council

1. Authorise the sale and consolidation of:

a. Proposed Lot 2 (108.4m²) to the owner of Lot 738 DP 12278 (112 Penguin Head Road, Culburra) for $6,600 (plus GST if applicable).

b. Proposed Lot 3 (73.6m²) to the owner of Lot 1 DP 28615 (37 Allerton Ave, Culburra), for $4,500 (plus GST if applicable).

c. Proposed Lot 4 (308.7m²) to the owner of Lot 7621 DP 1205582 (118 Marina Lane, Culburra), for $110,000 (plus GST if applicable).

2. The purchasers of proposed Lots 2, 3 and 4 are responsible for all costs involved with lot consolidation and their legal costs;

3. Authorise the proceeds from sale of the closed road to be allocated to the Property Reserve – Roads, in accordance with the Roads Act 1993;

4. Authorise for the Common Seal of the Council of the City of Shoalhaven to be affixed to any documentation requiring to be sealed and delegate to the CEO authority to sign any documentation necessary to give effect to this resolution.

Options

1. Resolve as recommended.

Implications: This resolution provides Council the ability to progress Council resolution MIN21. 716 dated 12 October 2021 to realign boundaries as agreed with local residents.

2. Not resolve as recommended.

Implications: Current negotiation and agreed sale with adjoining property owners will cease and may cause ill relations between Council and residents. The matter has been delayed several times due to reporting requirements and external review and approval matters. The current owners have been patient whilst Council continued to support the road closure and realignment of boundaries.

Background

The road reserve North Crescent Culburra Beach is almost 50m wide. Figure 1 below shows the locality of North Crescent subject to the road closure.

An aerial view of a city

Description automatically generated

Figure 1: Location of partial road closure of North Crescent Culburra – highlighted in blue

On 12 October 2021, via MIN21.716, Council resolved:

That Council

1. As required by MIN21.188, receive this report for information and continue progressing with the Road Closure at North Crescent Culburra Beach in accordance with MIN18.861 being:

Resolve, as Roads Authority, to close the surplus road reserve at North Crescent Culburra Beach, adjacent to Lot 738 DP 12278, Lot 1 DP 286157, Lots 7621 and 7622 DP 1205582 and Lots 1 and 2 DP 526508 by a notice published in the Government Gazette.

2. Undertake actions as necessary in the road closure process to:

a. realign boundaries as agreed with local residents

b. construct kerb & gutter as agreed with local residents

3. Following the above, place a moratorium on this project to allow for further consultation with the community with a view to arriving at the best way to develop the site.

This report is seeking Council resolution to comply with MIN21.716 item 2(a) and progress the agreed sale to adjoining residents.

The future subdivision is currently on hold in accordance with MIN21.716 (3).

Community Engagement

Community and Notifiable Authority notification was undertaken in accordance with the Roads Act 1993 for road closure.

All adjacent landowners have been consulted as part of the process of establishing the proposed new property boundaries.

Policy Implications

The matter is in accordance with Council’s Dealing with Requests for the Closure, Sale or Transfer of Council and Crown Roads Procedure.

Financial Implications

The sales listed above will generate $121,100. Council has incurred costs for the matter including survey, environmental, plan registration and legal fees of approximately $60,000. The net profit will be allocated to Council’s Property Reserve – Roads. The residual proceeds will be used for road projects.

It should be noted that costs incurred above include costs for future subdivision and kerb & gutter works undertaken prior to MIN21.716.

Risk Implications

Nil risk for the proposed sale of operational land.

Ordinary Meeting – Monday 14 November 2022

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CL22.592 IPART Review of Domestic Waste Charges

HPERM Ref: D22/459895

Department: Commercial Services

Approver: Trevor Dando, Manager Works & Services

Reason for Report

To inform Council of the outcomes from the IPART review into Domestic Waste Management Charges.

Recommendation

That Council accept the IPART review of domestic waste management service charges and their recommendations as follows:

1. To not publish an indicative ‘benchmark’ waste peg or report on Council’s performance against such a benchmark;

2. To continue making decisions on whether to limit domestic waste management (DWM) annual charges in future years in the context of the NSW Office of Local Government (OLG)’s regulatory role and commitment to its recommended regulatory approach for DWM annual charges; and

3. Request the NSW Office of Local Government (OLG) develop and implement, in consultation with stakeholders, its recommended regulatory approach that OLG:

a. Update it’s Council Rating and Revenue Raising Manual to provide further guidance to Councils on setting DWM annual charges; and

b. Work with the NSW Audit Office to initiate performance audits on a case-by-case basis of any Council or Councils that may be imposing unjustifiably high DWM annual charges on their communities.

Options

1. Accept the recommendation as written.

Implications: Recommended - It is an IPART imposed recommendation following 2 years of consultation.

2. Not accept the recommendation and draft a different recommendation.

Implications: Not Recommended - IPART have undertaken two years of consultation with stakeholders across New South Wales which resulted in eighty submissions, including fifty-five from Councils, twelve from Council Organisations, two from Government agencies, two from peak body organisations, four from waste and allied industry organisations and six from the public/community.

Background

Domestic waste management (DWM) is a key responsibility for Councils, with social, public health, environmental and economic significance. Councils provide a range of DWM services to their residents, such as kerbside collection, drop-off facilities and periodic clean-up services. To recover the cost of these services, Councils levy DWM annual charges (separate to local government rates) on their residential ratepayers.

In August 2020, the Independent Pricing and Regulatory Tribunal (IPART) published a discussion paper for the review of the annual DWM charge. The review was based on their preliminary assessment that DWM charges may not be delivering good value for ratepayers.

IPART, has in the past, opted to not limit Councils to a maximum percentage increase in the DWM charge. Instead, the Office of Local Government (OLG) audited the charges annually to ensure that they do not exceed the “reasonable cost” of providing the service. The Reasonable Cost Calculation is set out in Chapter 12 of the Department of Local Government Council Rating and Revenue Raising Manual 2007.

Following responses to the discussion paper and follow up consultation with many different stakeholders, including Shoalhaven City Council, IPART produced a draft report in December 2021. This report recommended the following actions:

· IPART to publish an annual benchmark Waste Peg.

· The Peg is not binding but requires Councils that exceed the Peg to explain why.

· IPART will publish an annual report of all Councils waste charges, highlighting those that exceed the Waste Peg and the reasons for exceeding the Peg.

· IPART recommend that OLG publish pricing principles to guide Councils on how to calculate the DWM charge, including the publishing of the bin sizes, frequency of collection and individual charges for each service.

IPART invited comment on the draft report up to end April 2022. Eighty submissions were received, 55 from Councils, 12 from Council Organisations, 2 from Government agencies, 2 from peak body organisations, 4 from waste and allied industry organisations and 6 from the public/community.

The IPART took note of the submissions and acknowledged that there are issues with a Waste Peg such as:

· Not accounting for the differences between councils

· Not aligning with the NSW waste and sustainable materials strategy 2041

· Reflecting up to a 2-year lag based on latest cost information, so cannot account for volatility and lag in a timelier manner

· Potentially creating a disincentive to provide appropriate waste management – the Peg could limit Council’s ability to deliver the DWM services the community wants

· A Waste Peg is simple and understandable, but without the context of the differing Council’s geographic and socioeconomic demographics, it can be misleading

IPART revised their final conclusions and recommendations and published their final report (Final Report (nsw.gov.au)) on 25 October 2022. These are summarised as:

· IPART will not publish an indicative ‘benchmark’ waste peg for 2023-24.

· IPART will continue making decisions on whether to limit DWM annual charges in future years in the context of the OLG’s regulatory role and commitment to its recommended regulatory approach for DWM annual charges

· IPART to Request the OLG to develop and implement, in consultation with stakeholders, its recommended regulatory approach including:

o update its Council Rating and Revenue Raising Manual to provide further guidance to councils on setting DWM annual charges

o work with the NSW Audit Office to initiate performance audits on a case-by-case basis of any council or councils that may be imposing unjustifiably high DWM annual charges on their communities

Ordinary Meeting – Monday 14 November 2022

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CL22.438 Policy - Companion Animals (Impacts on Native Fauna) - Conditions of Development Consent

HPERM Ref: D22/262981

Department: Environmental Services

Approver: James Ruprai, Director - City Development

Attachments: 1. Companion Animals (Impacts on Native Fauna) - Conditions of Development Consent ⇩

Reason for Report

The purpose of this report is to present the Companion Animals (Impacts on Native Fauna) – Conditions of Development Consent policy to Council for adoption.

Recommendation

That Council adopt the revised Companion Animals (Impacts on Native Fauna) – Conditions of Development Consent policy.

Options

1. Adopt the recommendation as written

Implications: The revised policies will maintain a policy position on applying development controls in relation to companion animals for the protection of native fauna, where appropriate.

2. Not adopt the recommendation

Implications: Council can request further details, seek further community input, or make other changes.

Background

The policy ‘Companion Animals (Impacts on Native Fauna) – Conditions of Development Consent’ was established in 2005 to document Council’s position that conditions relating to the keeping of pets (companion animals) can be imposed for developments that are adjacent to environmentally sensitive areas.

Conditions pertaining to the keeping of companion animals are included within the Development Consent for proposed developments that are located adjacent to environmentally sensitive areas. Such conditions are enforceable by Council and are vital in the Shoalhaven given the extent of environmentally sensitive areas.

This policy was presented to the meeting of Council of 20 September. It was resolved (MIN22.628) that it be deferred and reported back to a future meeting after further consultation with Councillors.

Council staff subsequently met with Councillors who had identified the need for further consultation in relation to this policy, on the geographical area to which the policy is applicable. ‘Environmentally significant areas’ as defined below, are the areas to be protected by the provisions of the policy. In contrast, the conditions can be applied for developments in adjacent areas, from which companion animals may foray to environmentally significant areas leading to a potential impact on threatened species. The draft policy states ‘This policy applies to areas from which companion species may roam and impact on environmentally sensitive areas, if unrestrained’. Staff are thereby supported to use the best available science in an assessment of a proposed development – for example, on how far a cat may roam at night to hunt. Through consultation, no changes were required to the draft previously presented to Council.

Proposed Changes to Policy (to the current adopted policy, as previously presented)

The following minor administrative changes are proposed in response to legislative updates:

· Section 3 – Provisions:

o The term ‘environmentally sensitive areas’ has been defined as being that as described by section 3.3 of the Shoalhaven Local Environment Plan (2014).

These are:

(a) the coastal waters of the State,

(b) a coastal lake,

(c) land within the coastal wetlands and littoral rainforests area (within the meaning of the Coastal Management Act 2016),

(d) land reserved as an aquatic reserve under the Fisheries Management Act 1994 or as a marine park under the Marine Parks Act 1997,

(e) land within a wetland of international significance declared under the Ramsar Convention on Wetlands or within a World heritage area declared under the World Heritage Convention,

(f) land within 100 metres of land to which paragraph (c), (d) or (e) applies,

(g) land identified in this or any other environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance,

(h) land reserved under the National Parks and Wildlife Act 1974 or land acquired under Part 11 of that Act,

(i) land reserved or dedicated under the Crown Land Management Act 2016 for the preservation of flora, fauna, geological formations or for other environmental protection purposes,

(j) land that is a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 or declared critical habitat under Part 7A of the Fisheries Management Act 1994,

a. land identified as riparian land by clause 7.6(2)(a) (of the Shoalhaven Local Environment Plan 2014. See: Riparian Lands and Watercourses Map),

b. land identified as “Excluded Land” on the Terrestrial Biodiversity Map.

These areas have a high likelihood of occurrence for threatened biodiversity and provide important retention habitat for native wildlife preservation.

· Additional wording has been included to define the locations for which this policy applies, with the intention that those areas adjacent to environmentally sensitive areas are included.

· The document has also been updated to new nomenclature relating to the recent restructure within Council, and in response to the introduction of the Biodiversity Conservation Act 2016 (NSW), which replaced the repealed Threatened Species Conservation Act 1995 (NSW).

Ordinary Meeting – Monday 14 November 2022

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CL22.595 Rescind Policy - Community Facilities - Use and Hire for Commercial Activities

HPERM Ref: D22/453103

Department: Shoalhaven Swim Sport Fitness

Approver: Jane Lewis, Director - City Lifestyles

Attachments: 1. Community Facilities - Use and Hire for Commercial Activities Policy ⇩

Reason for Report

To rescind the Community Facilities - Use and Hire for Commercial Activities Policy (POL16/77).

Recommendation

That Council rescind the Community Facilities - Use and Hire for Commercial Activities Policy (POL16/77).

Options

1. As recommended.

Implications:

· Will streamline Council’s management of community facilities, ensuring that Council enacts legislation efficiently and accurately.

· Council will comply with the existing Council resolution that all Council policies be reviewed within twelve (12) months of the election of a new Council.

2. Council not accept the recommendation and provide alternative direction.

Implications:

· Delay may impact Council’s ability to meet the requirement for review of policies within twelve (12) months of the election of a new Council.

· Changes may affect Council’s efficient management of community facilities within legislated guidelines.

Background

At Council’s Extra Ordinary Meeting 20 September 2022 it was resolved (MIN22.628):

“That this item was deferred and will be reported back to a future meeting after further consultation with Councillors”

A meeting was held on 19 October 2022 for consultation with Councillors, including staff from Council’s Shoalhaven Swim Sport Fitness and Tourism departments. This meeting resolved to clarify the following text included in the table below, outlining how conditions for temporary use are implemented in Council’s current policies:

Conditions for temporary use are included and expanded in:

· Council’s Events Policy for events over 200 people, in line with the Terms and Conditions of Hire / Use. The Events Policy is implemented by the Tourism department.

· Council’s Terms and Conditions of Hire / Use for events under 200 people. The Terms and Conditions of Hire / Use are implemented by:

o S355 Management Committees

o Council’s Customer Experience and Tourism departments

This report presents the following background for consideration and recommends that the Community Facilities - Use and Hire for Commercial Activities Policy (POL16/77) be rescinded.

The Use and Hire for Commercial Activities Policy provides guidance on the process and approvals required for Council’s community facilities to be used for commercial and retailing activities.

The Policy was previously required because the zoning for Council managed public land prohibited commercial events or required Development Applications for those events. Amendments to the Shoalhaven Local Environment Plan 2014 (SLEP) were notified on 27 September 2019. These included the clarification that temporary events (including commercial) are ‘exempt development’ (under the SLEP) when they take place on land owned by the Council or for which the Council has care, control and management (including Crown land) or a public road for which Council is the roads authority under the Roads Act 1993.

These amendments and associated provisions are outlined in Schedule 2 Exempt Development of the SLEP and are outlined in the table below. This change in legislation has been incorporated into Council’s internal procedures.

All the effective content of the Use and Hire for Commercial Activities Policy is now formalised within legislation, Council policy and procedures as identified in the table below, and it is recommended that this Policy now be rescinded.

Items included in the Policy to be Rescinded

Current Legislation, Policy or Procedure

Item 2

Typically, Council community facilities (buildings and reserves) do not have approval for conducting commercial and retailing activities.

Commercial and retailing are prohibited under the current zoning.

Council may grant consent for temporary use of the land for up to 28 days in any one year (these days do not have to be consecutive).

· Shoalhaven Local Environment Plan 2014 (SLEP), Schedule 2 Exempt Development, includes the following clauses:

Temporary events on public land and public roads and associated temporary structures

1. For the purposes of development specified for this clause – event means any event (including, without limitation, a market, exhibition, ceremony, meeting, concert, sporting event or fete) that would, but for this clause, require development consent.

2. Must take place on land owned by the Council or for which the Council has care, control and management (including Crown land) or a public road for which the Council is the roads authority under the Roads Act 1993.

5. Must not be conducted for more than 52 days (whether or not consecutive) in any period of 12 months.

· It is recommended that Council approve commercial hire agreements to the full extent of the SLEP, for up to 52 days (whether or not consecutive) in any period of 12 months. This will:

o Improve the activation of local facilities which are currently often under-utilised

o Support service provision by local businesses in local communities

Should Council resolve in accordance with the previous point, reference to this legislation will be included in Council’s Terms and Conditions of Hire/Use (D21/330433), with advice that commercial events over 52 days duration in any period of 12 months will require a Development Application to be lodged.

· S355 Management Committees for community facilities, Council’s Customer Experience department, Tourism department and Asset Custodian’s implement the Terms and Conditions of Hire / Use.

Item 2

Conditions for temporary use:

· There is protection of the environment and the amenity of the locality during and immediately after the carrying out of the proposed use.

· Appropriate arrangements are made for the provision of utility services, vehicular and pedestrian access, parking and restoration of the site to the condition prevailing immediately before the carrying out of the proposed use.

· The period for the carrying out of the proposed use is reasonable in the circumstances or whether a lesser period would be more appropriate.

Conditions for temporary use are included and expanded in:

· Council’s Events Policy for events over 200 people, in line with the Terms and Conditions of Hire/Use. The Events Policy is implemented by the Tourism department.

· Council’s Terms and Conditions of Hire / Use for events under 200 people. The Terms and Conditions of Hire / Use are implemented by:

o S355 Management Committees

o Customer Experience and Tourism departments

Item 2

The lodging of a Development Application and supporting information can be considered by Council as Clause 39C of the Shoalhaven Local Environment Protection Act (SLEP) allows for and provides Council with the ability to undertake and conduct an assessment of the activity.

· There is no Clause 39C of the SLEP.

· These provisions are included in the Environmental Planning and Assessment Act 1979 (EP&A Act), 4.15 Evaluation, which directs Council’s assessment of Development Applications.

Items 3.1 and 3.2

Provisions regarding processing of Development Applications.

Provisions are included in the EP&A Act.

Items 3.3 to 3.7

Provision regarding insurance, fees, fee waivers, bonds and licences.

These provisions are now directed by the following Council guidelines:

· Council’s Events Policy for events over 200 people, in line with the Terms and Conditions of Hire / Use

· Council’s Terms and Conditions of Hire / Use for events under 200 people

· Development Program Operation Plan - Fees and Charges

· Fee Waivers, Subsidies and Support Policy

Community Engagement

Consultation was undertaken throughout July and August 2022 with the following stakeholders:

· Development Services staff, Shoalhaven City Council

· Business Assurance & Risk staff, Shoalhaven City Council

· Tourism staff, Shoalhaven City Council

· Shoalhaven Swim Sport Fitness staff, Shoalhaven City Council

· Customer Experience staff, Shoalhaven City Council

· Building Services staff, Shoalhaven City Council

· Property staff, Shoalhaven City Council

All internal submissions were in agreement to rescind the Policy.

Subsequent consultation was undertaken with Councillors, in person and feedback sought via email.

Policy Implications

Rescinding this Policy will streamline Council’s policies and procedures for management of community facilities in line with government legislation. The following policy and procedure documents are overseen by:

City Futures:

· Events Policy (POL22/35)

City Lifestyles:

· Terms and Conditions of Hire / Use (D22/159212)

· Management Committees Policy (POL22/72)

· Fee Waivers, Subsidies and Support Policy (POL22/77)

Risk Implications

All elements of the Policy are managed by state legislation or Council’s policies and procedures. There are no identified risks in rescinding the Use and Hire for Commercial Activities Policy (POL16/77).

Ordinary Meeting – Monday 14 November 2022

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CL22.600 Notice of Motion - Update and Proposed Next Steps - Land Use Planning Changes for Agritourism

HPERM Ref: D22/469317

Submitted by: Clr Tonia Gray

Clr Serena Copley

Clr John Wells

Clr Patricia White

Purpose / Summary

The following Notice of Motion, of which due notice has been given, is submitted for Council’s consideration.

Recommendation

That Council:

1. Urgently inform the NSW Government that Council insists that the new ‘Agritourism’, ‘Farm experience premises’ and ‘Farm gate premises’ land use terms be prohibited across all zones in the Shoalhaven LEP 2014, including in the RU1, RU2 and C3 zones.

2. Remind the DPE of its many assurances via the Explanation of Intended Effect, statements on the Planning Portal and various emails that councils could “identify zones in which they wish to allow the new farm events and farm gate land uses”, and “councils could decide to amend their LEPs to prohibit these new uses in all zones.”

3. Strongly object to the ambiguity and quasi mandating of ‘Agritourism’ and its sub terms as permissible with consent in the Shoalhaven LEP 2014 from 1 December 2022 and February 2023.

4. Strongly object to the significant weakening of the development standards in the exempt and complying provisions that were exhibited in 2021 and have been amended and notified without any meaningful consultation with Council.

5. Note Council’s strong disappointment with the lack of meaningful or transparent consultation with local constituents and communities, and the disregard for the LGNSW President Darriea Turley’s letter outlining serious concerns (dated Oct 13, 2022).

6. Should the NSW Government persist with effectively mandating ‘Agritourism’ in certain zones in Shoalhaven:

a. Opt-in to the ‘Farm gate premises’ and ‘Farm stay accommodation’ optional clauses for Shoalhaven LEP 2014 and the ‘Farm stay accommodation’ optional clause for the Shoalhaven LEP (Jerberra Estate) 2014.

b. Commence the preparation of a Planning Proposal to provide additional development standards relating to the ‘Farm gate premises’ and ‘Farm stay accommodation’ optional clauses. Report the draft Planning Proposal back to Council with the draft Tourism Amendment to Shoalhaven Development Control Plan 2014, in due course.

c. Strongly request a deferral from the commencement of the Agritourism Reforms until February 2024, to enable the preparation, exhibition and finalisation of a Planning Proposal and detailed Development Control Plan provisions (as required), that will establish additional Shoalhaven specific development standards for the range of agritourism land uses.

7. Request that the NSW Government commit to:

a. Arranging public information sessions, as a matter of urgency, to explain the reforms to the public and interested communities; and

b. Depending on what eventuates, undertaking a 12 month review of the reforms to enable them to be refine, improve or adjust if needed or appropriate.

8. Send a copy of this resolution to:

a. The Director, Planning Legislation & Economic Policy at the Department of Planning and Environment, Ms Paulina Wythes.

b. The Deputy Premier and Minister for Regional NSW, the Hon. Paul Toole.

c. The Shadow Minister for Regional NSW and Shadow Minister for Agriculture, the Hon. Mick Veitch.

d. The Minister for Planning and Minister for Homes, the Hon. Anthony Roberts.

e. The Former Minister for Planning and Minister for Homes, the Hon. Rob Stokes.

f. The Shadow Minister for Planning and Public Spaces, the Hon. Paul Scully.

g. The Minister for Agriculture, the Hon. Dugald Saunders.

h. The NSW Minister for Environment and Heritage, the Hon. James Griffin.

i. The Member for the South Coast, the Hon. Shelley Hancock.

j. The Member for Kiama, Mr Gareth Ward.

k. Local Government NSW, Attn: LGNSW President Darriea Turley.

l. The community members/industry representatives who have previously engaged with Council on this issue.

Background to the Agritourism Reforms

In March 2021, the NSW Government released initial exhibition material relating to Agritourism and small-scale agriculture development. This exhibition proposed amendments to the NSW Planning System to boost farm businesses and regional tourism, by streamlining the approval of agritourism and other small-scale agricultural development. The proposed reforms are part of the response to the economic impacts of natural disasters and COVID-19 on the farming community.

Council made a submission at the time that contained a range of feedback. The detailed report (DE21.41) relating to this resolution can be accessed here.

The Explanation of Intended Effect (EIE) supporting the 2021 exhibition outlined that additional consultation would be needed relating to the agritourism proposals. Given the relevance of this matter to Shoalhaven, Council requested to be included in any additional consultation and engagement to ensure that the final reforms were appropriate for Shoalhaven, functioned as intended and balanced impacts (MIN21.252(2)).

In December 2021, further material on the Agritourism Reforms was released by the NSW Government and additional consultation commenced in this regard. The focus of this additional consultation was for Councils across NSW to:

· ‘Opt in’ or ‘out’ of the proposed new ‘optional’ clauses in the Standard Instrument LEP for ‘Farm stay accommodation’ and ‘Farm gate premises’. If opting in, councils could nominate development standards as relevant for each optional clause.

· Nominate zones to apply the proposed new land use terms for ‘Agritourism’, ‘Farm gate premises’ and ‘Farm experience premises’.

Council’s resolution relating to the additional consultation opportunity and nomination process is at Attachment 1. Essentially though, this resolution Council signalled that it wanted to ‘opt out’ of, or not be included in, the proposed Agritourism Reforms.

Mayoral Minute – October 2022

On 10 October 2022, Council considered a Mayoral Minute relating to land use planning changes for agritourism, following the notification of part of the Agritourism Reforms and ongoing community interest in the matter. Council resolved (MIN22.747) that:

1. Council urgently and strongly confirm to the NSW Department of Planning and Environment, that Shoalhaven City Council:

a. ‘opts out’ of the new provisions for agribusiness/tourism until such time as we conduct our own review of where the provisions/clauses could possibly be appropriate;

b. Reaffirms Parts 1 to 3 of its resolution of 28 March 2022 (MIN22.200);

c. Objects to the land use terms ‘Agritourism’, ‘Farm experience premises’ and ‘Farm gate premises’ being made permissible with consent anywhere in our LEPs at this stage;

2. Once confirmed, Council write to those who have previously engaged with Council on this issue to reassure them of Council’s position;

3. Given the community concern that this matter is generating, Council receive a short report as soon as practical on the agritourism related land use planning changes being considered/pursued by the NSW Government.

In October 2022, correspondence was sent to the NSW Government (relevant Ministers etc) and community members who previously engaged with Council on this matter, advising of Council’s position.

This report now addresses part three of the above resolution.

Summary - Agritourism Reform Changes and Implications for Council

In October 2022, the NSW Government proceeded to notify a range of changes to legislation relating to the first stage of the Agritourism Reforms:

· Environmental Planning and Assessment (Development Certification and Fire Safety) Amendment (Farm Stay Accommodation) Regulation 2022

· Standard Instrument (Local Environmental Plans) Amendment (Agritourism) Order 2022

· State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Agritourism) 2022

The first stage of the reforms, commencing on 1 December 2022, will:

· Amend the NSW Standard Instrument LEP to:

- Insert the new agritourism and related land use terms. Notably, ‘Agritourism’, and its sub terms (‘Farm experience premises’ and ‘Farm gate premises’) will become permissible with consent in all Standard Instrument LEPs across the State (including Shoalhaven LEP 2014) where ‘Agriculture’ is permissible with consent.

- Refining controls relating to ‘Farm stay accommodation’.

- Expanding ‘development without consent’ opportunities for ‘Poultry farms’ and ‘Pig farms’.

- Introduce the new ‘Farm stay accommodation’ and ‘Farm gate premises’ optional clauses. These clauses remain optional and as such, Council has the opportunity to opt in or maintain its opt-out nomination.

- Make related changes to the Dictionary to reflect the new and amended definitions.

· Amend State Environmental Planning Policy (SEPP) (Exempt and Complying Development Codes) 2008 to:

- Make changes to the Interpretation section (i.e., dictionary) to reflect the new and amended definitions.

- Introduce savings provisions for complying development.

- Introduce an exempt development pathway for the rebuilding of farm buildings damaged by natural disasters, agritourism signs, ‘Farm experience premises’, ‘Farm gate premises’, ‘Farm stay accommodation’ and ‘Roadside stalls’.

- Introduce a new Code, being the ‘Agritourism and Farm Stay Accommodation Code’ that provides a complying development pathway for ‘Farm experience premises’, ‘Farm gate premises’ and ‘Farm stay accommodation’.

· Make consequential changes to the Housing SEPP, Primary Production SEPP and the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 in response to the Agritourism Reform changes.

The key themes that are considered to be potentially of most concern for Shoalhaven at this stage are outlined below:

Exempt and complying development pathways

These pathways were originally flagged as part of the initial EIE exhibition process in 2021, however, the notified amendments are different to that exhibited in a range of areas – some strengthened and others weakened. It is considered unlikely that the NSW Government will amend or defer the commencement of these pathways and as such they will commence on 1 December 2022.

Further, it would appear that Shoalhaven does not have a sound policy reason to request an exclusion from these pathways. It is understood that only one exclusion has been accepted to date, being the special Hunter Water Drinking Water Catchment land (note the Sydney Drinking Water Catchment land in Shoalhaven is unlikely to be considered similarly in this regard). The land around Mount Panorama in the Bathurst LGA is currently also being considered by the NSW Government for a specific exclusion.

Recommendation: Note Council’s disappointment that the exhibited exempt and complying provisions have been amended and notified without any meaningful consultation with Council.

Changes to the Standard Instrument LEP and Shoalhaven LEP

The changes to the Standard Instrument LEP and Shoalhaven LEP have substantial implications for Shoalhaven, however unlike the changes to the Codes SEPP, Council has the greater likelihood of influence/change in this area.

Significantly, the new land use term ‘Agritourism’, and its sub terms will become permissible with consent anywhere that ‘Agriculture’ is permissible with consent in NSW from 1 December 2022.

In the Shoalhaven LEP 2014, this means the RU1, RU2 and RE1 zones. In addition to this, the NSW Government has also confirmed that the land use ‘Agritourism’ and its sub terms will also become permissible with consent in the RU4 Primary Production Small Lots zone in Shoalhaven LEP 2014 sometime in February 2023. Whilst not explicitly mandating these uses as permissible with consent, the NSW Government has advised that Council is likely to be unable to prohibit these land uses in these zones. This is directly contrary to Council’s March 2022 resolution.

As such, come 1 December 2022 (or February 2023 for the RU4 zone), Council could be required to consider development applications for ‘Agritourism’, and its sub terms in the respective zones, however the flow on concern in this regard, Council will not have any contemporary supporting development controls in place for these uses. Any development applications received would then need to be assessed on merit by Council.

Work is progressing on a largescale review and possible future amendment to Chapter G15: Tourist and Visitor Accommodation of Shoalhaven DCP 2014 (Tourism Review) in accordance with Council’s adopted Strategic Planning Works Program. A deferral from the commencement of the Agritourism Reforms until February 2024 would potentially allow the Agritourism Reforms to be adequately considered in the Tourism Review, in a more suitable/realistic timeframe. It is noted that a similar deferral was put in place for the Low Rise Housing Diversity Code amendments to the Codes SEPP around 2018/2019, which enabled Council adequate time to get supporting development controls in place. Other NSW Councils, such as Byron Shire, are considering opportunities to request deferrals as well.

It is noted that Local Government NSW has written to the Hon. Anthony Roberts, NSW Minister for Planning and Minister for Homes, outlining a range of concerns regarding the proposed new agritourism rules. The advocacy on behalf of NSW Councils includes a request to postpone the commencement of the reforms.

Recommendation: That Council:

· Note its objection to the quasi mandating of ‘Agritourism’ and its sub terms as permissible with consent in Shoalhaven LEP 2014.

· Should the NSW Government persist with quasi mandating ‘Agritourism’ in certain zones in Shoalhaven, request a deferral from the commencement of the Agritourism Reforms until February 2024, to enable the preparation, exhibition and finalisation of appropriate development controls and guidance to support the agritourism land uses in Shoalhaven’s planning scheme.

‘Farm gate premises’ and ‘Farm stay accommodation’ optional clauses

‘Farm stay accommodation’ is already currently permissible with consent in the:

· RU1, RU2, RU4, C3 Environmental Management zones in Shoalhaven LEP 2014.

· C3 zone in Shoalhaven LEP (Jerberra Estate) 2014.

In accordance with Council’s previous resolution, no additional zones were nominated for this use.

‘Farm gate premises’ is however, a new land use being introduced for the first time into the planning scheme. Council nominated to make this land use prohibited in every zone in Shoalhaven, however the NSW Government have essentially mandated the use in a range of zones across the City.

In March 2022, Council also resolved to opt out of the optional clauses for these uses. The optional clauses have been prepared to provide additional rigour and support for these land uses. As such, there is merit in opting in to the optional clause as the ‘Farm stay accommodation’ term already exists in our LEPs and it is apparent that the ‘Farm gate premises’ use will be included in due course.

There has been some concern in the community that if Council does not opt in to the optional clauses, the exempt and complying provisions would be used in the assessment of development applications instead. To clarify, these optional clauses relate to development applications only, and in the absence of any specific LEP or DCP provisions, any applications would be considered on merit only.

It is noted that the optional clauses will commence in Standard Instrument LEPs from February 2023 (where a Council has opted in), however, the notified versions no longer include the suggested detailed or set development standards that Council had previously considered. The notified documentation does, however, specify that development standards can be added by Councils as required. Whilst this provides Council with greater flexibility and opportunities to tailor these clauses specifically for Shoalhaven, the inclusion of additional provisions will need to be undertaken as part of a future planning proposal initiated by Council (not as part of the February 2023 NSW Government managed process). This change in approach has the potential to have resourcing impacts on Council.

It appears abundantly clear however, that the NSW Government intends to progress the Agritourism Reforms, which presents a current and urgent need to prepare appropriate supporting development controls for these land uses in Shoalhaven DCP 2014. Should Council wish to opt in to the ‘Farm gate premises’ and ‘Farm stay accommodation’ optional clauses, Council will also need time and commit resources to consider and progress a Planning Proposal to set additional development standards for these uses.

There is significant merit in pursing Shoalhaven specific development standards for these uses, especially ‘Farm stay accommodation’. For example, the Agritourism Reforms have amended the number of bedrooms for this type of accommodation to 7 (existing in Shoalhaven LEP 2014), but now refined to in buildings. This means that whilst there will be a limit of 7 ‘Farm stay accommodation’ bedrooms in buildings, it appears that there would be no limit on the number of manufactured homes/moveable dwellings and the like that could be considered as part of a development application.

Recommendation: That Council:

· Given what it appears is highly likely to occur irrespective if representations, opts-in to the ‘Farm gate premises’ and ‘Farm stay accommodation’ optional clauses for Shoalhaven LEP 2014 and the Farm stay accommodation optional clause for the Shoalhaven LEP (Jerberra Estate) 2014.

· Formally request a deferral from the commencement of the Agritourism Reforms until February 2024, to enable the preparation, exhibition and finalisation of a Planning Proposal and detailed DCP provisions (as required) that will establish additional Shoalhaven specific development standards for the ‘Farm gate premises’ and ‘Farm stay accommodation’ land uses.

Conclusion

Whilst there is merit in continuing to strongly advocate that the Agritourism Reforms do not apply to Shoalhaven, it appears highlight likely (or there is a significant risk) that the reforms will progress regardless NSW wide. As such, there is merit in also progressing a range of alternative measures to help protect the interests of the Shoalhaven community includes, including:

· Opting in to the optional clauses for ‘Farm stay accommodation’ and ‘Farm gate premises’ (as appropriate to the relevant LEP).

· Seeking a deferred commencement until February 2024 to enable the preparation, exhibition and finalisation of amendments to Shoalhaven LEP 2014 and Shoalhaven DCP 2014 that will provide additional rigour and guidance regarding these amended and new land uses.

Community Engagement and Policy Implications

Council has continued to receive representations from Community Consultative Bodies (CCBs) and community members about the need for rural and agricultural tourism/visitor uses to be restricted or regulated.

Destination Sydney Surrounds South (DSSS) have also continued to advocate for a more certain planning framework for rural and agricultural tourism/visitor opportunities.

The Shoalhaven Local Strategic Planning Statement (LSPS) that was adopted by Council in October 2020 includes the following action:

A7.1 Review planning and development controls for tourist and visitor accommodation and temporary uses to balance the support of tourism activity and manage impacts on communities and sensitive locations. Short-term (Note: this means between 2022-2024).

The recommended approach includes the continued progression of the Tourism Amendment to Shoalhaven DCP 2014 and a Planning Proposal to provide specific development standards to support the ‘Farm stay accommodation’ and ‘Farm gate premises’ optional clauses. Any amendment to Shoalhaven DCP 2014 or Shoalhaven LEP 2014 (including Jerberra Estate) would be exhibited for a period of at least 28 days. Community and industry engagement will be encouraged during the public exhibition period.

Financial Implications

The process of amending Shoalhaven’s LEPs and DCP would be resourced as much as possible via the existing Strategic Planning budget but may require specific funding if external or other assistance is needed to advance the work in a timely manner.

The insertion of the optional clauses (without the additional development standards) will be managed by DPE. As such, there will be minimal financial implications for Council.

Risk Implications

Without specific provisions in Shoalhaven LEP and DCP that guide agritourism development, development applications for these uses will need to be assessed individually on merit. This provides a level of risk and uncertainty for the community and Council and may result in undesirable built form and operational outcomes.

Without a deferred commencement arrangement in place, Council will not be able to get appropriate development standards and controls in place for the commencement of the Reforms in December 2022 and February 2023 respectively.

Ordinary Meeting – Monday 14 November 2022

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CL22.603 Notice of Motion - Urgent Inclusion of Character Considerations in Shoalhaven’s Key Planning Instruments

HPERM Ref: D22/471521

Submitted by: Clr Evan Christen

Purpose / Summary

The following Notice of Motion, of which due notice has been given, is submitted for Council’s consideration.

Recommendation

That Council

1. Discuss and consider this critical community issue as part of the special Strategic Planning Working Party meeting that has been scheduled for 26 November 2022.

2. Receive a report back as soon as possible following the Working Party meeting on the immediate steps that can be taken to strengthen the important recognition and consideration of character in Councils key planning instruments (Local Environmental Plan and Development Control Plan); and,

3. Request that the report in Recommendation 2., include: setting of timeframes to expedite this critical work; resulting potential resourcing implications; and options for consideration in this regard.

Background

Often community objections to development in the Shoalhaven are based upon concerns that the proposed development does not fit with the existing and desired future character of an area. Often this relates to bulk and scale and aesthetics that are considered to be ‘out of character’ with a street, suburb, village, town or area.

The communities are often frustrated that their arguments based on character carry little weight as the existing character and desired future character have often not been defined in the DCP. This has led to a number of DAs being called in to Council and ultimately some being rejected. If there were strong character considerations in the LEP and/or character statements in the DCPs then that would give the community and Council arguments greater weight.

Several communities in the Shoalhaven are so concerned about what they feel is ‘inappropriate development’ for their village/town that they have undertaken or are setting up groups to explore their character and what the community wishes to be their character e.g. Huskisson, Currarong, Sanctuary Point/St Georges Basin, Berry, Milton.

These concerns are not new and have in fact been noted by Council and incorporated in relevant documents, the Shoalhaven 2040 Our LSPS (September 2020) includes in Planning Priority 13 – “There is a strong desire for good management of development in our towns and villages to ensure development respects existing character. The development of the Shoalhaven Character Assessment report provides a starting point for us to work with our communities to settle a vision for the existing and future character of their neighbourhoods”. The progression of this noted in Activity A13.1 “Update Shoalhaven Development Control Plan 2014 with built form statements to ensure in-fill development contributes to neighbourhood character. Immediate”.

Our recently adopted Community Strategic Plan 2032 has as Key Priority 2.2 with the Outcome “Development contributes to and enhances neighbourhood character”, see below. Therefore, this Council needs to active steps to meet this Key Priority.

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The Shoalhaven DCP 2014 overall objective number (iv) is

“iv. Ensure development responds to the qualities of the subject site and to the character of the surrounding neighbourhood.”

Also in chapter G12 the specific objectives are to:

i Ensure a comprehensive design-oriented approach to housing resulting in high quality urban design, development and residential amenity.

ii. Maintain and enhance the amenity of existing and future residential areas.

iii. Ensure development is compatible with the bulk, scale and character of the area, including scenic, landscape, pastoral or environmental qualities.

iv. Set appropriate environmental criteria for energy efficiency, solar access, privacy, noise, vehicular access, parking, landscaping and open space.

v. Ensure that development has due regard and is sympathetic to the physical constraints of the site.

vi. Allow for efficient use of existing services and facilities, including utility services, transport systems and community facilities.

vii. Promote wider and more affordable housing choice in Shoalhaven. Implement agreed strategic directions and respond to demographic needs.

Despite these laudable objectives in the DCP it is very difficult for Council to judge character without specific character statements that provide Council a reference frame to judge the character of proposed developments. This frustrates the community that their concerns regarding character cannot be acted upon by Council.

Examples of character statements in other Council DCPs show that they can be straightforward one-page statements that state the existing character and the desired future character. Wollongong has these ‘Locality based DCPs / Precinct Plans’ which may be a good model to follow.

This approach would also be consistent with the NSW Government - Local Character and Place Guideline dated February 2019.

The community would like to see character included in the Shoalhaven LEP; however, this will potentially require much more time and resources, therefore a first step is to have character included in the DCPs. It is useful to have character in the DCP as shown by the verdict of the Land and Environment Court in favour of Wollongong Council where in giving judgment, Commissioner Dickson stated:

“That the built form of the development is incompatible with the desired future character of Thirroul Village Centre as detailed in Chapter D12 of DCP 2009. Further, that on merit, a variation to the building height development controls at cll 13.2 (a) and 18 of chapter D12 of DCP 2009 is not warranted as the objectives of the control are not achieved: s 4.15 (3A) (b) of the EPA Act.”

In summary, this notice of motion is to put into effect immediate steps to include character as a critical consideration in our key planning Instruments, including Character Statements in our Shoalhaven DCP 2014 and if possible also strengthened provisions in the Shoalhaven LEP 2014 so that planning applications can be immediately assessed against a character test and as a “Head of Consideration” for development proposals.

Directorate	Name	Designated Position Start Date	Returned
City Lifestyles	Stephanie Cascun	23/08/2022	04/10/2022
City Performance	Soni Achuthan	29/08/2022	07/10/2022
City Development	Janelle Munson	05/09/2022	12/10/2022
Shoalhaven Water	Bradley Tunks	10/10/2022	12/10/2022
City Lifestyles	Clinton Coker	18/07/2022	13/10/2022
City Development	Jonathan Coyle	05/09/2022	14/10/2022
City Development	Josh Mellueish	05/09/2022	17/10/2022
City Futures	Terry Dwyer	19/09/2022	28/10/2022