AGENDA


Environment and Planning Committee

 

Monday, 09 March 2020

7.00pm

 

Level 1, Georges River Civic Centre

Hurstville

 

 

 

 

 

 

 

 

 

 

 


Georges River Council –         Environment and Planning -  Monday, 9 March 2020                                                       Page 2

 

          Environment and Planning

ORDER OF BUSINESS

 

1.      Opening

2.      Acknowledgement of Country

3.      Apologies / Leave of Absence

4.      Notice of Webcasting

5.      Disclosures of Interest

6.      Public Forum

7.      Confirmation of Minutes of Previous Meeting  

MINUTES: Environment and Planning - 10 February 2020

8.      Committee Reports

ENV006-20       Adoption of Georges River Keeping of Animals Policy (2020)

(Report by Manager Environment Health & Regulatory Services)........................ 3

ENV007-20       Draft Georges River Planning Agreements Policy 2020

(Report by Executive Strategic Planner).................................................................. 64

ENV008-20       Legal Report

(Report by Director Legal Services and General Counsel)................................ 152  

 

 


Georges River Council –         Environment and Planning -  Monday, 9 March 2020                                                       Page 3

Committee Reports

Item:                   ENV006-20        Adoption of Georges River Keeping of Animals Policy (2020) 

Author:              Manager Environment Health & Regulatory Services

Directorate:      Environment and Planning

Matter Type:     Committee Reports

 

 

 

Recommendation:

(a)     That Council adopt the Georges River Keeping of Animals Policy (2020), contained in Attachment 3 to this report.

(b)     That Council write to each individual/organisation that made a submission on the Draft Keeping of Animals Policy to advise of the amendments made to the Draft Policy received.

(c)     That Council rescind the following policies;

(i)      Local Orders Policy – Keeping of Animals (former Hurstville Council).

(ii)     Local Orders Policy No. 18 – The Keeping of Birds and Animals (former Kogarah Council).

 

Executive Summary

1.      Council at its meeting on 27 May 2019 considered a report on the harmonisation of the two existing Keeping of Animals Polices of the former Councils that had been in operation since July 2015 (Hurstville) and December 2015 (Kogarah) and resolved to place the Draft Keeping of Animals Policy (Draft Policy) on public exhibition.

 

2.      A total of 131 submissions were received in response to the public exhibition process and while the majority of submissions (85) came from within the Local Government Area (LGA) submissions were received from other parts of NSW, from Victoria and Queensland. The overwhelming feedback, related to objections to the restrictions on the number of cats and dogs that can be kept and limiting the number of dogs based on the size of the dog or premises, representing 80% of submissions received. This report discussed the key themes identified by all submissions and provides recommended responses to address the objections raised.

 

3.      Whilst the draft Policy was not intended to apply a blanket restriction on the number of animals that can be kept on premises within the LGA, it is apparent that based on the submissions received it has been interpreted in such a way and therefore the Draft Policy needs editing to clarify its intended purpose, which is:

 

“to specify the criteria which Council must take into consideration prior to issuing an Order (Order 18) of Section 124 of the Local Government Act 1993, relating to the keeping of animals within any premises”.

 

4.      As a result amendments are also recommended to be made to key sections of the Draft Policy to further clarify that the Draft Policy is only applied when a complaint regarding the keeping of an animal has been verified by an authorised officer of Council. To provide perspective on the use of the Draft Policy, Council’s authorised officers verified three complaints during 2019 that required reference to the previous Council Policies and the issue of an Order 18; “Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order”.

 

5.      Council’s resolution on 27 May 2019 also requested a review of the criteria for the keeping of Racing Pigeons be undertaken with reference being made to other Councils requirements and relevant organisations. This review has identified that the Draft Policy is consistent with other NSW Councils that have a Local Orders Policy or Keeping of Animals Policy. Council received one submission specifically addressing the criteria for the keeping of pigeons and amendments to clarify and reorder criteria are recommended based on this submission.

 

Background

 

6.      The Local Government Act, 1993 (the Act) under Section 124 (Orders) provides Council with the ability to regulate the keeping of animals on private premises via an Order 18; “Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order”.

 

7.      The Local Government (General) Regulation, 2005 (the Regulation) in Schedule 2, contains standards only for the keeping of swine, poultry, horses and cattle that may be enforced by any Order 18 issued by Council. These standards specify the conditions by which each animal type must be kept on a premises and the distance of any enclosure used to house animals is located from a property boundary or a specified type of premise, i.e. a dwelling, shop, office, factory, church or other place of public worship, workshop, school or public place in a city, town, village or other urban part of an area.

 

8.      As the type of animals listed in the Regulation is rather limited and not reflective of the current types of pet animals, both former Councils used the provisions in Section 159 of the Act to prepare a Local Orders Policy (LOP) on the keeping of Animals. Both LOP’s specified the criteria which the council must take into consideration in determining whether or not to give an Order 18 under Section 124 to regulate the number, type or conditions by which animas are kept.

 

9.      To harmonise the LOP’s of the two previous Councils, Council at its meeting on 27 May 2019 considered a report on the Draft Keeping of Animals Policy (Draft Policy) and resolved:

 

(a)     That Council endorse the Draft Keeping of Animals Policy, contained in Attachment 1, to be placed on public exhibition for 28 days.

(b)     That a further report be provided to Council at the conclusion of the public exhibition.

(c)     That the report back to Council on the draft policy includes an assessment on the number of racing pigeons based on consideration of the provisions implemented by other Councils and discussions with the relevant organisation.

(d)     That Council undertake targeted consultation and engagement with groups likely to be affected by this policy.

 

10.    This report provides a summary of the actions that have taken place to implement the above resolution of Council.

 

Report

11.  The Draft Policy was placed on public exhibition from 28 June 2019 to 2 August 2019 via the ‘Your Say portal, Council’s Public Exhibition web page and the Council Notice in the St George and Sutherland Shire Leader. The Draft Policy also attracted local media attention with articles appearing in the St George and Sutherland Shire Leader on 30 May (electronic) and 26 June 2019. In addition Council directly contacted the following organisations by mail/email seeking their comment:

·        Birds Australia

·        The Avicultural Society of NSW

·        Australian Pigeon Fanciers Association

·        Australian Pigeon Fanciers Protection Union

·        RSPCA

·        The Cat Protection Society of NSW

·        Department of Primary Industries

·        NSW Apiarists’ Association

·        Amateur Beekeepers Association NSW

·        Office of Environment & Heritage

·        Illawarra Reptile Society

·        Central Cumberland Racing Pigeon Federation Inc.

 

12.    Whilst the majority of the 131 submissions received came from members of the Georges River Community (85 in total or 65%), 42 came from residents in other local government areas within NSW, five came from residents in Victoria, one from a resident in Queensland and detailed submissions were received from Dogs NSW and the RSPCA. An acknowledgement letter/email was sent to each submitter confirming receipt of their submission and outlining the next steps in the future progress of the Draft Policy.

 

13.    Attachment 1 to this report provides a summary of the key matters raised by each submission received. The body of the report discusses the key matters raised and the prosed response to address the matters raised.

 

Review of Submissions:

 

(a)     General Overview

 

14.    In summary, Table 1, bellow outlines in broad terms the key theme identified by each submission received:

 

Table 1 – Key Themes Identified in Submissions

 

Key Issue

Number of submissions

Objection to the restriction on the number of cats & dogs that can be kept and limiting dog numbers based on size of dog/premises

104

Concerns regarding impacts on hobby breeding of small animals (guinea pigs, rabbits, ferrets)

5

General Objection

3

Objection to the restriction on the number of cats that can be kept

3

Objection to the restriction on the number of rodents that can be kept

3

Objection to the restriction on the number of dogs that can be kept

2

Multiple Matters (individual)

2

Multiple Matters (organisation)

2

General Objection

2

Objection to the restriction on the number of rabbits that can be kept

1

Objection to the Draft Policy regarding the keeping of poultry

1

Draft Policy not on public exhibition page

1

Objection to the Draft Policy regarding the keeping of pigeons

1

Support for the Draft Policy regarding the keeping of pigeons

1

Total

 

131

 

(b)     Policy Clarification

15.    Prior to discussing the submissions received in more detail it is clear from reviewing the submissions that there is a theme across many of the submissions that appears to support an understanding within the community that the Draft Policy applies a blanket limit on the number of animals that can be kept across the LGA. Upon further review of the Draft Policy it is acknowledged that this interpretation could be made as there are a number of sections of the Draft Policy that discuss the maximum number of animals that can be kept which may be confusing. Therefore, in order to clarify that the Draft Policy is not intended to set a blanket limit, amendments will be made to the Purpose, Scope, Objectives and Application of the Draft Policy as discussed below in this report.

 

Application

16.    While the Draft Policy applies to all premises within the LGA it is only applied when a complaint regarding the keeping of an animal has been verified by an authorised officer of Council. The criteria for the keeping of animals contained within the Draft Policy are then considered as options for resolving the complaint via the issuing of an Order (Order 18) of Section 124 of the Local Government Act 1993. To add perspective to the use of the Draft Policy, Council’s authorised officers verified three complaints during 2019 that required reference to the previous Council’s Policies and the issue of an Order 18. Further many of the criteria for the keeping of animals are not new as they were contained in either the former Hurstville Local Orders Policy – Keeping of Animals adopted on 1 July 2015 and Kogarah Local Orders Policy No. 18 – The Keeping of Birds and Animals adopted on 14 December 2015.

 

17.    Therefore, compliance with the Draft Policy only applies where a complaint from a member of the public regarding the keeping of an animal has been independently verified by an authorised officer of Council. Consequently, a member of the community can keep animals not in accordance with the Draft Policy provided they are not causing a verified impact upon neighbouring premises.

 

18.    Whilst the current ‘Purpose’ of the Draft Policy addresses the above, to better clarify and overcome any misinterpretation, it is proposed to amend the ‘Application’ of the Draft Policy from:

 

‘This policy applies to the occupier of all premises within the Georges River Council LGA’

 

To;

 

‘This policy applies to the occupier of all premises within the Georges River Council LGA where a complaint regarding an amenity impact from the keeping of an animal has been verified by an Authorised Officer of Council’

 

19.    To assist with the interpretation of the proposed new ‘Application’ additional definitions of ‘Authorised Officer’ and “Amenity Impact” are proposed to be added to the definitions as follows:

 

‘Authorised Officer – an employee of Georges River Council provided with delegated

authority to act under the Local Government Act, 1993.’

 

‘Amenity Impact – includes disturbance from the keeping of animals due to noise, odour, dust, vermin, effluent or the unsightliness of structures used to house animals.’

 

20.    In practical terms, Council will only seek to reduce the number of animals kept at a premises where the resolution of the verified amenity impact will be achieved by reducing the number of animals kept.

 

21.    These clarifications will assist the following existing provision within Section 4 ‘Principles’ of the Draft Policy to ensure that the Draft Policy is not interpreted to apply a blanket limit on the number of animals that can be kept:

 

o   Council will consider on its merits any request to vary the numerical standards contained within this Policy of the keeping of animals on a premises on the submission of substantive supporting evidence, and

o   A breach of the numerical standards contained within this Policy alone will not necessarily result in regulatory action being taken by Council, and

o   Where the number of animals kept on a premises before the commencement of this Policy exceeds that shown for each animal, there is no immediate requirement to reduce animal numbers to comply with this Policy.

 

22.    Further clarification is proposed to be included to ‘Section 3 – Application’, which confirms that the Policy does not apply to commercial or business premises operating under a Development Consent or to strata managed premises where the amenity impacts are contained to within the strata complex.

 

23.    To add further clarification that the Draft Policy does not apply a blanket limit on the number of animals that can be kept across the LGA, the following amendments are also proposed to the Draft Policy.

 

Purpose

 

24.    Add a clarification statement which makes it clear that the number criteria within the Draft Policy applies when amenity impacts are verified by changing the following wording from:

 

‘This Policy details criteria of reasonable limits on maximum numbers, and circumstances under which certain animals may be kept in the interest of amenity and public health.’

 

To;

 

‘This Policy details criteria of reasonable limits on maximum numbers, and circumstances under which certain animals may be kept in the interest of amenity and public health when amenity impacts are verified.’

 

Scope

25.    Remove the reference to obtaining development consent to keep animals in excess of the number specified in the Draft Policy by deleting the following sentence:

 

‘The Keeping of Animals beyond the criteria contained within this policy e.g. exceeding the number specified for a specific animal, will require development consent.’

 

Objectives

26.    Reorder and reword the objectives to ensure the key objective appears first followed by associated objectives. Objectives which are not relevant to achieving the key objective or where Council is not the appropriate regulatory authority such as animal welfare are recommended to be removed. The objectives are proposed to be changed from:

 

The objectives of this Policy are:

 

•        To give guidance and advice to persons inquiring as to the keeping of animals for domestic purposes;

•        To minimise nuisance caused by noise, odour or vermin through the keeping of animals and to maximise residential amenity;

•        To ensure the keeping of animals does not compromise the environment or minimum standards of building, public health, safety and convenience;

•        To encourage the satisfactory care and management of animals in the LGA;

•        To establish criteria for the keeping of Animals; and

•        To publicly notify the circumstances that the Council will consider in determining whether to serve an Order No. 18 under Section 124 of the Local Government Act 1993 to prohibit, restrict or in some other way, require things to be done regarding the keeping of animals.

 

To

 

‘The objective of this Policy is to publicly notify the circumstances that the Council will consider in determining whether to serve an Order No. 18 under Section 124 of the Local Government Act 1993 to prohibit, restrict or in some other way, require things to be done regarding the keeping of animals.

 

In achieving the above objective the following associated objectives will also be achieved:

 

•        To minimise nuisance caused by noise, odour or vermin through the keeping of animals and to maximise residential amenity; and

 

•        To ensure the keeping of animals does not compromise the environment or minimum standards of building, public health, safety and convenience.’

 

Principles

27.    Remove the reference to the number of animals of a specific kind that may be kept on a premises by deleting the following sentence:

 

‘The number of animals of a specific kind that may be kept on a premises are not to exceed the number specified in this Policy.’

 

Criteria for Keeping Animals

28.    Finally, not all criteria for the keeping of animals specify a maximum number of animals to be kept on a property for all types of animals listed in the Draft Policy. This is because the numbers of each animal specified in the policy have been developed to address amenity impacts. Where no number is applied it is because it is considered that the number of animals is not a key component in addressing amenity impacts. It should be noted that the Draft Policy is not intended to regulate animal welfare as the RSPCA and not Council are the appropriate regularly authority for animal welfare.

 

(c)     Discussion of Submissions

 

29.    The key themes identified by the submissions as shown in Table 1 are discussed in further detail below:

 

i.        Objection to the restriction on the number of cats and dogs that can be kept and limiting dog numbers based on size of dog/premises

 

30.    The overwhelming feedback, related to objections to the restrictions on the number of cats and dogs that can be kept and limiting the number of dogs based on the size of the dog or premises representing 80% of submissions received. In addition to the above key theme other associated comments regarding this matter included the following:

 

·        People should have a choice as to what type and size of dog they wish to keep.

·        More dogs will be euthanised in order to comply with number requirements in Policy.

·        Will deter people from moving to the area.

·        Limit the ability to mind a dog for a friend or sick family member.

·        Policy creates a class society as rich people who can afford a larger property can keep more dogs.

·        No justification provided on weight, size requirements and how many dogs you can own.

·        Make it harder for foster and rescue volunteers to care for unwanted dogs.

·        Council should consult with experts regarding dog behaviour and weight – this may create issues you have never intended.

·        Is a blanket approach to the number of pets allowed to have in your home and is un-Australian.

·        Could stop people from registering their animals based on the number of dogs being allowed to be kept.

·        Requirements of the dog are impacted by age and breed more than the weight of the dog.

·        The Policy gives bias to anyone lodging a complaint about a barking dog.

·        Delay implementation until the Companion Animals Act is reviewed.

·        Council should consult with Dogs NSW.

 

31.    The majority of the above concerns regarding the restrictive nature of the controls on the number of cats and dogs that can be kept should be overcome by the proposed Policy clarification amendments discussed in Section (b) of this report.

 

32.    The inclusion of dog weight and land area requirements into the Draft Policy was an attempt to update Council’s requirements to respond to recent policy initiatives by Canterbury-Bankstown and the Hills Councils. Considering the significant community comment objecting to these requirements and that the two former Councils LAP’s had the same requirement for the number of dogs to be kept on a premises (i.e. two dogs), it is proposed to remove the weight and area requirements and retain the existing requirements of the two previous Councils. Therefore, it is recommended that the criteria for ‘The Keeping of Dogs’ contained within the Draft Policy be amended from:

 

‘1.     The number of dogs permitted to be kept on any property in the LGA are as follows:

 

a)      Residential allotments over 400m2

·        Dogs over 11 kilograms – maximum 2 dogs OR

·        Dogs less than 11 kilograms – maximum 3 dogs

 

b)      Units and townhouses allotments and allotments less than 400m2 a maximum of one dog with a maximum weight of 11kg’

 

To

 

‘1.     The number of dogs permitted to be kept on any property in the LGA is two dogs.’

 

33.    The comment regarding delaying the Draft Policy until the review of the Companion Animals Act is noted. However, the timeframe for the review of the Companion Animals Act has not been determined, further this Act only relates to cats and dogs and the Draft Policy, created under the Local Government Act 1993, applies to a wider variety of animals, therefore delaying the Draft Policy is not considered warranted.

 

34.    The comment requesting that Council consult with Dogs NSW has been addressed as during the public exhibition period Council wrote to Dogs NSW requesting their comments which are discussed latter in this report.

 

ii.       Concerns regarding impacts on hobby breeding of small animals (guinea pigs, rabbits, ferrets)

 

35.    The key matters raised by submission included;

 

·        Draft Policy is discriminatory towards small mammals.

·        Number of rabbits/rodents (smaller animals) is insufficient for breeders to show animals at events.

·        Draft Policy stops people from pursing their hobby.

·        Policy discriminates against residents who are members of official clubs pedigree rabbits, fancy rodents (rats/mice) and Cavies (Guinea pigs).

·        Rats, mice, ferrets, guinea pigs and rabbits are colony animals and it is important for their health and well-being to be kept in numbers larger than the Draft Policy imposes.

 

36.    It is believed that the above matters will be adequately addressed by the proposed Policy clarification amendments discussed in Section (b) of this report.

 

iii.      General Objection

 

37.    The general comments received related to the following matters which are summarised below with comments provided immediately following each matter:

 

·        Policy does not address the need to de-sex cats – more education required by Council on responsible pet ownership.

 

38.    The de-sexing of cats is outside the scope of the Draft Policy as is education on responsible pet ownership which is being conducted through Council’s Companion Animal Registration Program.

 

·        What does this mean for future pet owners, very worrying – would like clarification.

 

39.    The Draft Policy may never apply to the majority of pet owners with the LGA provided the type of animal, number of animas or condition by which animas are being kept does not give rise to a verified complaint, which based on 2019 results is minimal.

 

·        New owners buying into the area may not know about the dog laws and they may have a dog that is too large for their premises.

 

40.    It is proposed that the weight and area requirements be removed from the Draft Policy.

 

·        Section 149 zoning certificates should specify on the certificate as to the policy information on restrictions to keeping a dog based on size/weight and land size.

 

41.    It is proposed that the weight and area requirements be removed from the Draft Policy.

 

iv.     Objection to the restriction on the number of cats that can be kept

 

42.    The key matters raised by submission included:

 

·        Draft policy should be adopted other than the section relating to cats.

·        Does not agree with the number of cats allowed to be kept on one’s property.

·        Requests Council provide free de-sexing as well as compulsory de-sexing for all animals (to be paid for by Council).

·        If the above was provided there would be less strays, more room in shelters and wildlife would be preserved.

·        Suggests that Council advertise humane treatment of animals as well as free and compulsory de-sexing (only at vets) in schools, the Leader, billboards and make it part of our culture.

 

43.    The concerns regarding the restrictive nature of the Draft Policy in determining the number of cats that can be kept on a premises have been previously clarified and recommendations proposed to resolve. The de-sexing of all animals is outside the scope to the Draft Policy as is education on the humane treatment of animals which is the responsibility of the RSPCA.

 

v.      Objection to the restriction on the number of rodents that can be kept

 

44.    The key matters raised by submission included:

 

·        Does not agree with the low number of rodents to that can be kept.

·        Club registered breeders should not be limited to on numbers allowed to be kept.

·        Disagrees that 4 adult rats and 10 adult mice are completely unrealistic numbers.

·        Will affect breeders and Fancier Societies if these numbers go ahead.

·        Urges Council to increase the number of rodents in the draft policy.

 

45.    The concerns regarding the restrictive nature of the Draft Policy in determining the number of rodents that can be kept on a premises have been previously clarified and recommendations proposed to resolve. Further, given that the keeping of Rodents is primarily an indoor activity it is considered that the likelihood of an amenity impact from the number of animals kept as compared to other ‘outdoor’ animals is considered to be low. The concerns regarding breeders and Fancier Societies have been discussed earlier in the report under “ii. Concerns regarding impacts on hobby breeding of small animals (guinea pigs, rabbits, ferrets)” and the outcome applies equally to Rodents.

 

vi.     Objection to the restriction on the number of dogs that can be kept

 

46.    The key matters raised by submission included:

 

·        Concerned that being able to own 3 dogs will be taken away due to proposed policy relating to number of dogs being able to be kept.

·        Keeping of dogs is not a size related issue but the breed.

 

47.    The concerns regarding the restrictive nature of the Draft Policy in determining the number of dogs that can be kept on a premises have been previously clarified and recommendations proposed to resolve.

 

vii.    Multiple Matters (individual)

 

48.    The key matters raised by submission included:

 

·        Birds (Other than Poultry or Pigeons) - no maximum. Further consideration needs to be given to ensure that all captive birds are housed comfortably and not subject to live in cages that are too small for them to stretch their wings or in aviaries that are overcrowded.

 

·        Cats - this needs to be revised to four cats. Please note that 36 complaints is an insignificant number compared to the number of residences within our municipality.

 

·        Dogs – Concerns re restrictions on what dog breed you should have based on size. This policy is both highly offensive and ill thought. Most people will tell you the larger the dog the less likely it is to bark. This policy needs further discussion with experts in animal behaviour and not individuals who are not familiar with dog breeds or their inherent traits. For example Greyhounds make excellent pets for apartment living as they are calm and fairly inactive creatures. Greater emphasis needs to be placed in supporting dog owners irrespective of breed by council.

 

·        Fish: Need greater guidelines on caring for fish to ensure no overcrowding.

 

·        Pigeons: Needs review. 120 racing pigeons is a lot considering that Pigeons can be very smelly and attract vermin.

 

·        Rabbits: Need to be reviewed and aligned with Ferrets and Guinea Pigs.

 

·        Reptiles: Limitations for the keeping of reptiles should be considered again to prevent overcrowding and hoarding. All reptiles should be registered with council.

 

·        Policy setting restrictions on the number of dogs based on weight and size is simply ridiculous – will stop people rehousing bigger dogs from animal shelters.

 

49.    All of the above comments with the exception of those relating to fish have been addressed elsewhere in the discussion on the submissions received. The Draft Policy is intended to set criteria to address amenity impacts and not set standards for animal welfare and as such the suggested changes are not supported. However, upon review the number criteria for the keeping of fish is recommended to be amended to use similar wording to other criteria where no specific number is specified within the Draft Policy i.e. Birds and Reptiles, from:

 

‘There are no specific limitations for the number of fish permitted to be kept on a premises.’

 

To

 

‘There is no maximum number of fish permitted however numbers kept may be required to be reduced to mitigate any nuisance or improve the amenity of neighbours.’

 

viii.   Multiple matters (organisation)

 

RSPCA

 

50.    Council wrote to the RSPCA as part of the targeted consultation on the Draft Policy. The letter received in response is provided in submission 123 and summarised below with comments provided immediately following each matter:

 

·        RSPCA strongly supports a maximum on the number of animals allowed to be kept.

 

51.    Noted – number of animals recommended to be retained.

 

·        RSPCA considers that a formal exemption system should be put in place to enable the keeping of more animals than the maximum number permitted under very specific and monitored circumstances including exemptions for reputable and credible foster cares and rescue groups.

 

52.    The Draft Policy under ‘4. Principles (i) Keeping Animals’ contains the following:

 

Council will consider on its merits any request to vary the numerical standards contained with this Policy for the keeping of animals on a premises subject to this Policy on the submission of substantive supporting evidence.

 

53.    Therefore, the above requirement is considered to address the concern raised by the RSPCA.

 

·        Allowing more than one dog in a property < 400m2 .

 

54.    It is proposed to allow 2 dogs per premises regardless of area.

 

·        Remove reference to the size of the dog.

 

55.    It is proposed to remove the reference to the size of the dog.

 

·        Add a maximum number of reptiles permitted to be kept and require space provisions for reptiles.

 

56.    As a licence is required to be obtained from Department of Planning, Industry and Environment (National Parks and Wildlife Service) in order to keep a reptile, this issue will be considered by the licensing authority.

 

·        Add a maximum number of birds (other than poultry) permitted to be kept and required space provision for birds and flight times.

 

57.       The Draft Policy is intended to set criteria to address amenity impacts and not set standards for animal welfare as these are the responsibility of the RSPCA. Further the Draft Policy contains requirements to limit the numbers of animals to mitigate any nuisance or improve the amenity of neighbours.

 

·        Include racing greyhounds in the maximum number of dogs permitted.

 

58.    The maximum number of dogs relates to all types of dogs.

 

·        Maximum on the number of breeding animals permitted.

 

59.    As the breeding of animals requires development consent this issue is outside the scope of this Draft Policy and will be regulated by the conditions of development consent.

 

Dogs NSW (Royal NSW Canine Council Ltd)

 

60.    Council wrote to Dogs NSW as part of the targeted consultation on the Draft Policy. The letter received in response is provided in submission 103 and summarised below with comments provided immediately following each matter:

 

·        Council consider the impact of their proposed plan to reduce the number of dogs in the Georges River LGA on the businesses located in the council area.

 

61.    The Draft Policy is not a blanket ban on the number of dogs that can be kept across the LGA and is only considered following verification of a complaint.

 

·        The current Companion Animals Act 1998 No.87 already grants the power to a council to make an order restricting the number of dogs kept on a property on a “case by case basis”.

 

62.    There appears to be a misunderstanding by DOGS NSW of the requirements contained within the Companion Animals Act 1998. The Companion Animals Act 1998, provides Councils in NSW with the ability to declare a dog to be a nuisance, dangerous or menacing dog. The requirements contained are used to specifying the behaviours of the dog that are required to be prevented or specifies controls that need to be applied to the dog whilst on its premises or in a public place. There is no ability provided by which a council can limit the number of dogs kept on a premises. Subsequent contact with a representative of DOGS NSW agreed that the Companion Animals Act does not provide Council with the ability to regulate dog numbers.

 

·        DOGS NSW breeders may be forced to rehome some of their treasured dogs because they have more than the number allowed.

 

63.    The issue regarding the number of dogs has been explained under the first issue raised by this submission.

 

·        Owners may be forced to euthanise their pets out of fear from intervention by Georges River Council should it proceed with this policy.

 

64.    The intention of the policy is not to reduce dog numbers within the community but to provide options to address concerns regarding the number, type and manner in which animals are kept which impact on community amenity.

 

·        Basing numbers on the size and weight of dogs is discriminatory and does not necessarily result in compliance with community amenity. A determination based on weight would be arbitrary and not based on any scientific evidence.

 

65.    It is proposed to remove the requirements relating to the weight of dogs and size of premises.

 

·        Hobby breeding as undertaken by licenced breeders of DOGS NSW, is distinct from commercial breeding practices and is a hobby ancillary to the residents of a premises and not subject to the requirement for a Development Approval.

 

66.    Whilst the Draft Policy does not apply to commercial breeding establishments as such facilities are regulated via a Development Application, hobby breeders would be captured by the Draft Policy if a complaint was verified. Further the Draft Policy contains in section 4 ‘Principles’ the following provisions that can be used to assist hobby breeders:

 

o   Council will consider on its merits any request to vary the numerical standards contained within this Policy for the keeping of animals on a premises subject to this Policy on the submission of substantive supporting evidence; and

 

o   A breach of the numerical standards contained within this Policy alone will not necessarily result in regulatory action being taken by Council.

 

·        DOGS NSW strongly recommends that Georges River Council defer any decision-making in regard to the “Draft Keeping of Animals Local Orders Policy 2019” until such time as the review of the Companion Animals Act 1998 is completed.

 

67.    The timeframe for the review of the Companion Animals Act 1998 has not been determined, further it only relates to cats and dogs and the Draft Policy, created under the Local Government Act 1993, applies to a wider variety of animals, therefore delaying the Draft Policy is not considered warranted.

 

 

ix.     General Objection

 

68.    The key matters raised by submission included:

 

·        Unhappy with proposed Draft Policy.

·        Too many pets will be put down as a result of the draft Policy.

·        If pets are looked after with plenty of exercise, Council should not be able to tell you what you can or can’t do.

 

69.    The Draft Policy is not intended to apply a blanket limit on the number of animals that can be kept and the above matters should be overcome by the proposed Policy clarification amendments discussed in Section (b) of this report.

 

x.      Objection to the restriction on the number of rabbits that can be kept

 

70.    The key matters raised by submission included:

 

·        Policy is restrictive – should be allowed to keep more than one de-sexed rabbit, should not be a limit of one rabbit.

·        Consultation should be undertaken from rabbit experts or rabbit rescuer “The Rabbit Sanctuary” before decision is made.

 

71.    The Draft Policy permits the keeping of two rabbits and not one as stated in the submission. The Draft Policy is not intended to apply a blanket limit on the number of animals that can be kept and the above matters should be overcome by the proposed Policy clarification amendments discussed in Section (b) of this report.

 

xi.     Objection to the Draft Policy regarding the keeping of poultry

 

72.    The submission outlines the benefits of the former Hurstville Council Policy of permitting one rooster and nine hens and requests the retention of these requirements. One of the most significant anomalies between the two former Council’s polices related to the keeping of Roosters. Roosters were permitted to be kept in the former Hurstville LGA but not permitted within the former Kogarah LGA. Due to the increased density of residential areas, the high risk of adverse amenity impacts to neighbouring properties and the number of noise complaints from roosters, (22 complaints received in 2018), it is proposed not to permit the keeping of roosters within the LGA when complaints regarding their keeping have been verified.

 

xii.    Draft Policy not on public exhibition page

 

73.    The Draft Policy was initially placed on Council’s website via the “Your Say” interactive page as advised by the advertisement in the local paper. However it was also not on the public exhibition page. When being alerted to this by a member of the community, the Draft Policy was added to public exhibition page with a link to the ‘Your Say’ page.

 

xiii.   Objection to the Draft Policy regarding the keeping of pigeons

 

74.    The submission proposes that the following amendments be made to the Draft Policy:

 

“Item 1. A maximum number of 20 pigeons may be kept at any one premises.

 

For additional control requirements regarding Racing Pigeons (see below).

 

The following Standard Requirements be included in the Policy:

 

(a)     Pigeons must be fed within the Aviaries/lofts. All Feed must be kept in vermin proof containers.

(b)     Free lofting of pigeons (that is allowing pigeons to freely roam outside of their Aviary (loft) in a residential area is not permitted at any time.

(c)     On no account should Pigeons be allowed to roost on neighbouring buildings. Aviary (Loft) doors and traps must be locked at all times.

(d)     Aviaries (Lofts) are to be kept clean at all times. Manure is to be cleaned up daily and disposed of correctly.

 

Item 6. The maximum number of racing pigeons that may be kept on premises within a residential area is 20 birds. Provided that the keeper is a certified member of a recognised pigeon racing club, federation or association, and is an active member of the sport the following control conditions apply. If the keeper is not a certified member of a pigeon racing club and cannot provide written evidence of participation in events as an active member of the sport all control conditions of the Policy for domestic or other pigeons apply.

 

Item 7. to Item 13. Requirements regarding Racing Pigeons should remain within the Policy.

 

“Pigeons should not be Allowed”

 

75.    In summary the submission requests that pigeons not be allowed to be kept however, if they are to be kept the maximum numbers of pigeons that can be kept be limited to 20 birds with no distinction in numbers between racing and other pigeon types i.e. show or fancy class pigeons. Discussion on this aspect of the submission will be considered in the following discussion on the specific resolution of Council in relation to a review of racing pigeon numbers.

 

76.    The submission also recommends four additional requirements (a) to (d) to be added to the standard requirements which apply to non-racing pigeons. These suggested amendments are considered valid as they address matters of feeding, free flight, roosting and cleaning of Aviaries (Lofts) for non-racing pigeons. Whilst some of the suggested amendments are already in the Racing Pigeon section of the Draft Policy they have all been moved/added to the Standard Requirements of the Draft Policy. The Draft Policy has also been reworded to include all general requirements relating to the keeping of pigeons into the ‘Standard Requirements’ and making it clearer that additional controls apply to the keeping of Racing Pigeons.

 

(d)     Racing Pigeon Requirements

 

77.    Council’s resolution specifically requested an assessment be undertaken on the number of Racing Pigeons based on consideration of the provisions implemented by other Councils and discussions with the relevant organisation.

 

78.    In actioning this resolution contact was made with the Councils contained within Table 2 and written communication requesting comment was forwarded to the Australian Pigeon Fanciers Association and The Australian Pigeon Fanciers Protection Union, however both letters were returned to Council. A subsequent email was sent to the Central Cumberland Racing Pigeon Federation Inc. seeking comment on the Draft Policy.

 

Table 2 – Comparison of Pigeon Keeping Requirements across various councils

Council

Non – Member

Club/Association Member

Comments

Georges River

20

120

Draft Policy

 

Adjoining Councils

Bayside

80

120

150 with special approval.

Canterbury  Bankstown

40

120

150 with special approval.

Sutherland

 

 

No Policy

 

Other NSW Councils

Inner West

 

 

No Policy

Randwick

 

 

Policy under development

Liverpool

20

120

 

Parramatta

50

120

150 with special approval.

The Hills

20

120

 

Northern Beaches

20

120

 

Warringah

20

120

 

Wyong

20

120

 

 

79.    The requirements for the keeping of Pigeons contained with the Draft Policy are relatively constant with both adjoining Councils and other NSW Councils that have a Local Orders Policy or Keeping of Animals Policy.

 

80.    Council received an email from the Federation Secretary – Central Cumberland Racing Pigeon Federation Inc. which stated:

 

“The draft appears to be adequate and covers the majority of members within our sport.”

 

81.    Therefore, as Council’s requirements are relatively constant with other Councils and meet the needs of the relevant association, it is not proposed to change the requirements for the keeping of Racing Pigeons contained within the Draft Policy.

 

82.    The recommended amendments to the exhibited version of the Draft Policy as discussed in this report are shown in Attachment 2 while Attachment 3 shows the resultant (without edits) Draft Keeping of Animals Policy (2020).

 

Summary

83.    Whilst the draft Policy was not intended to apply a blanket restriction on the number of animals that can be kept on premises within the LGA, it is apparent that upon review that the Draft Policy needs editing to clarify its intended purpose i.e. to specify the criteria which Council must take into consideration prior to issuing an Order (Order 18) of Section 124 of the Local Government Act 1993, relating to the keeping of animals within any premises.

 

84.    As a result amendments are also recommended to be made to key sections of the Draft Policy to further clarify that the Draft Policy is only applied when a complaint regarding the keeping of an animal has been verified by an authorised officer of Council. In addition to typographical and formatting edits a number of amendments are also proposed following the review of individual submissions. The recommended amendments to the exhibited version of the Draft Policy as discussed in this report are shown in Attachment 2.

 

 

Next Steps

85.    Section 161 of the Local Government Act, 1993 provides the following options for Council to progress the adoption of the Draft Policy:

 

(1)     After considering all submissions received by it concerning the draft local policy, the Council may decide—

(a)     to amend its draft local policy; or

(b)     to adopt it without amendment; or

(c)     not to adopt it, except where the adoption of criteria is mandatory.

 

(2)     If the council decides to amend its draft local policy, it may publicly exhibit the amended draft local policy in accordance with this Part or, if the Council is of the opinion that the amendments are not substantial, it may adopt the amended draft local policy without public exhibition.

 

86.    The recommended amendments to the Draft Policy resulting from the submissions received are not substantial, as they provide clarity rather than change, and therefore it is recommended that Council adopt the Draft Keeping of Animals Policy (2020) contained in Attachment 4.  Should Council adopt the Draft Keeping of Animals Policy (2020) it will be necessary to also rescind the Local Orders Policies of the former Councils.

 

Financial Implications

87.    Within budget allocation.

 

Risk Implications

88.    No risks identified.

 

Community Engagement

89.    Community engagement was conducted as outlined in the report.

 

File Reference

19/2272, D20/9030

 

 

 

ATTACHMENTS

Attachment 1

Table summarising the key issues from each submission

Attachment 2

Recommended Amendments to Exhibited version of Keeping of Animals Policy

Attachment 3

Keeping of Animals Policy 2020 - latest version

 


Georges River Council -         Environment and Planning - Monday, 9 March 2020

ENV006-20             Adoption of Georges River Keeping of Animals Policy (2020)

[Appendix 1]          Table summarising the key issues from each submission

 

 

Page 32

 


 


 


 


 


 


 


 


 


 


 


 


 


Georges River Council -         Environment and Planning - Monday, 9 March 2020

ENV006-20             Adoption of Georges River Keeping of Animals Policy (2020)

[Appendix 2]          Recommended Amendments to Exhibited version of Keeping of Animals Policy

 

 

Page 48

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Georges River Council -         Environment and Planning - Monday, 9 March 2020

ENV006-20             Adoption of Georges River Keeping of Animals Policy (2020)

[Appendix 3]          Keeping of Animals Policy 2020 - latest version

 

 

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Georges River Council –         Environment and Planning -  Monday, 9 March 2020                                                       Page 71

Item:                   ENV007-20        Draft Georges River Planning Agreements Policy 2020 

Author:              Executive Strategic Planner

Directorate:      Environment and Planning

Matter Type:     Committee Reports

 

 

Recommendation:

(a)     That Council endorse the Draft Georges River Planning Agreements Policy – Revision 2 (2020) for the purpose of public exhibition.

(b)     That Council provide delegation to the General Manager to approve changes to ensure the readability of the document.

(c)     That any submissions received on the Draft Georges River Planning Agreements Policy – Revision 2 (2020) be reported back to Council following public exhibition.

 

 

Executive Summary

1.      A comprehensive review of the Georges River Planning Agreements Policy 2016 has been undertaken to strengthen the Policy in line with best practice and legal advice and has addressed a number of Notices of Motion by the Council.

2.      The review has been undertaken by economic consultants Hill PDA Consulting, Lindsay Taylor Lawyers and Council staff.

3.      The attached Draft Georges River Planning Agreements Policy – Revision 2 (2020) (Draft VPA Policy) marks up the amendments to the Policy (Attachment 1).

4.      This reports summaries the key changes to the Policy including:

a.      Land Value Capture - the land value capture formula (one of the mechanisms to calculate contributions) has been amended and now requires an open book feasibility approach based on the current market value of a site and its existing improvements and the proposed residual land value of the site under the planning proposal. The developer is to provide Council with all feasibility inputs to undertake accurate feasibility modelling.

b.      Residual Land Values – deletion of Appendix E - Table of Residual Land Values and new provisions requiring an open book feasibility approach.

c.       Development Applications with clause 4.6 variations – VPAs that relate to development applications with variations under clause 4.6 of the LEP can only directly address the specific impacts of the additional floor area/variation.

d.      Affordable Housing - new provisions enable VPAs in connection with a planning proposal that seek an increase to the maximum FSR or building height, to provide for affordable housing.

e.      Council owned land - new provisions stating that Council will provide for public benefits on Council owned land by way of registering a covenant on the title and if that is not practicable, by way of Council entering into a VPA via a deed poll and registering the agreement on title, or making provision in the LEP.

f.       Dedication of land under a VPA – amendment stating that Council will generally seek to value land being dedicated and that where the floor space potential of the dedicated land can be transferred and developed elsewhere on the site, the value of the dedicated land will be 25% of market value of the land prior to floor space transfer. 

 

Background

5.      Council made the following Notices of Motion in relation to the existing VPA Policy. The review of the VPA Policy has considered and addressed these Notices of Motion.

Council Meeting 24 September 2018 - NM086-18 NSW Guidelines for VPAs

“That in the interests of consistency, openness and transparency, Council request the NSW Minister for Planning, the Hon. Anthony Roberts MP to immediately publish the new Guidelines for Voluntary Planning Agreements, including any associated policy documents and Ministerial Directions necessary to ensure that the value created by planning decisions is fairly shared by the community.

That Council undertake a review of the current Table of Residual Land Values contained in the Voluntary Planning Agreement Policy 2016 to ensure they reflect current property markets, as provided in Appendix E of the Policy”.

Council Meeting 23 April 2018 - NM017-18 Amendment to the GR VPA Policy

“That the General Manager review the Voluntary Planning Agreements Policy 2016 and prepare a report to Council that investigates the option for development applications which seek additional floor area (of up to 10% over the maximum gross floor area permitted under clause 4.6 of the Hurstville and Kogarah LEPs 2012) to be required to enter into a voluntary planning agreement with Council”.

Council Meeting 23 September 2019 - NM069-19 - Amendment to GR VPA Policy

“That during the current review of the Georges River Planning Agreements Policy 2016, the General Manager review the existing provisions relating to the entering into of planning agreement for Council-owned lands to enable community benefits to be provided in a timely and efficient manner”.

 

Review of the VPA Policy

6.      The review of the VPA Policy has been undertaken by economic consultants Hill PDA Consulting, Lindsay Taylor Lawyers and Council staff.

7.      The VPA Policy has been reviewed against the Environmental Planning and Assessment Act 1979 and Regulation 2000, relevant Ministerial Directions, the Department’s 2005 Planning Agreements Practice Note and 2016 Draft Planning Agreements Practice Note, best practice and general experiences by the consultants and Council with preparing VPAs.

8.      As part of the review the consultants consulted the Department and sought advice on the status of the Draft Practice Note on Planning Agreements (November 2016) and also the Ministers position on planning agreements. The consultants advised that there is no indication of when the draft practice note will be approved and that the Ministers position to date is that he hopes that there is little need for a spot rezoning if the LEPs can be brought up to date and regularly reviewed every five years.

9.      The consultants also noted there has been a shift by the Department and in some Council’s policies and LEPs away from ‘value sharing’ and the ‘open book feasibility approach’ to ‘community infrastructure charges’ in the LEP provisions. This, as outlined below, is recommended to be considered as part of the next review of Council’s VPA Policy in conjunction with the future GRC LEPs and subject to budget allocations.

10.    An information report on the work undertaken and proposed amendments to the VPA Policy was presented to the Executive Team on 13 August 2019 with a presentation by Martin Hill.

11.    A Councillor briefing was provided by Council’s consultants and staff on 21 October 2019. Following this Lindsay Taylor Lawyers has reviewed Draft VPA Policy.

 

Key Amendments to the VPA Policy

12.    The key changes to the Draft VPA Policy are outlined below. The attached Draft VPA Policy (Attachment 1) marks up all of the changes to the document.

 

Land Value Capture and Residual Land Values

13.    Hill PDA undertook a peer review of the current VPA Policy and table of Residual Land Values (RLV) (Appendix E).

14.    In summary they identified shortcomings in the current approach to RLV calculation and failure to consider the existing land use value and/or tipping point FSR. The conclusion was the existing RLV table was not suitable to determine value sharing contributions as it did not match reality of urban infill development.

15.    Hill PDA also undertook a Market Analysis and RLV Assessment and calculations for the various precincts within the centres of Hurstville, Kogarah, Beverly Hills and Riverwood. In addition a peer review of Council’s VPA register and outcomes for existing VPAs was undertaken. The key findings were;

·        The RLVs do vary considerably from site to site.

·        The only fair way of calculating the value uplift is an open book feasibility approach.

·        Of the seven (7) VPAs executed by Council between 2011 and 2018, all developers disputed the RLV rates in the current VPA Policy The basis of the developers objections was that the formula approach over estimated the value uplift because either their purchase price (current market value) was higher than the RLV because of the sites improvements and/or secondly the RLV rates in the Policy were not reflective of the market value.

·        In all cases the developers requested a third party be engaged to undertake an independent assessment of land value capture associated with the development proposal and any associated public benefits.

·        The $/sqm for the VPA offers ranged from $960-$1,908/sqm (whereas the current VPA Policy RLVs range from $2,500-$3,000/sqm).

 

16.    Hill PDA did note that a review of the outcomes of the Council’s executed VPAs does show that once the market value was established, Council was successful in negotiating on an open book feasibility basis a half share or more of the value uplift for public benefit.

17.    Based on the above, Hill PDA recommend that an open book feasibility approach be applied to determine value capture and a fair contribution.

18.    The Draft VPA Policy has deleted “Appendix E -Table of Residual Land Values” and amended the formula for land value capture to account for the current market value of the site ‘as is’ under the current planning controls, as follows:

C = RLV – RLV (1) MV (1)

        2

            C = contribution to be paid

RLV = Residual land value of a site following either  an instrument change, plus associated or consequential changes to any DCPs, applying to the site, or the consent to development on the site allowing an exceedance of development standards or other planning controls, which in both cases allow intensified development

RLV (1) = Residual land value of a site under the existing LEP and DCP provisions

MV = The current market value of the land and its existing improvements being the higher of either its existing use value or its residual land value under the provisions of the existing LEP and relevant development control plan.

 

19.    The Draft VPA Policy also includes the following new requirements for the developer to provide supporting documentation, valuations and feasibility testing to support the VPA offer.

“5.17 The developer will be required to provide the Council with sufficient details, costs and valuations to determine a realistic figure for the residual land values under the existing and altered statutory planning controls or resulting from the exceedance of development standards/planning controls and for Council to undertake feasibility testing having regard to the developer’s entitlement to a share of the development profit.

5.18 For Council to undertake a proper investigation of the development feasibility having regard to any uplift and the required development contributions, an open-book feasibility approach is required. This approach will include the developer providing the Council with all the necessary feasibility inputs to undertake accurate feasibility modelling, including support for the assumptions used in the model for land purchase costs, professional fees, construction costs, developer charges, land holding costs, site works, marketing and commission and revenue/sale values.  This feasibility testing will include determining a residual land value under the existing planning controls and a residual land value resulting from the exceedance of development standards/planning controls. Where the market value of the site is higher than the residual land value under the existing planning controls, a supporting valuation is required detailing the basis of this valuation and comparable market evidence.

5.19 Such documentation provided to the Council is to be verified by a certified practising valuer or a qualified and experienced land economist, or both if necessary...”

 

Relationship between VPAs and development applications with variations under clause 4.6 of the LEP

20.    The legal advice from Lindsay Taylor Lawyers states that Council cannot legally impose a requirement that a VPA must be entered into in connection with a development application which seeks dispensation for additional floor area above that permitted by the applicable planning controls.

21.    Case law makes it clear that any dispensation must be considered on its merits and that a VPA would only be relevant in so far as it directly addressed the impacts of the additional floor area.

22.    This legal advice applies irrespective of whether the additional floor area is above or below 10%.

23.    The Draft VPA Policy has been amended to include additional objectives and clauses (see clauses 2.16 , 2.17, 5.9 and 5.10) to enable the Council to require VPAs to be entered into in connection with clause 4.6 objections to height and FSR standards in Council’s LEP, where the VPA would address the specific impacts of the variation.

“2.16 Any variation to development standards under clause 4.6 of the LEP as part of a development application will not be permitted by the Council unless the Council is of the opinion that the dispensation sought under clause 4.6 meets the relevant test on its own planning merits. This is whether or not a planning agreement is proposed in connection with such a development application.

2.17 Without limiting clause 2.16 of this policy in any way, the Council may consider a planning agreement which proposes development contributions to address the specific impacts of a development arising from an exceedance of an FSR or building height development standard where a request for variation of such a standard has been made pursuant to cl4.6 of the LEP. The Council considers that a planning agreement will not otherwise have relevance in the consideration of such requests for variations of development standards”.

24.    Further to the above, recent advice from the Department of Planning, Industry and Environment for a Gateway Determination review for a Planning Proposal for the Kensington and Kingsford Town Centre is “that Council may adopt guidelines that define a dollar amount for the consideration for the increase in gross floor area…but the actual offer would remain voluntary”.

25.    Based on the Departments advice and other examples of community infrastructure charges in Sydney LEP 2012 for Green Square and Burwood LEP 2012 for Burwood Town Centre, it is recommended that the next review of the VPA Policy consider ‘community infrastructure charges’ as a mechanism for determining development contributions. This process requires significant work, in conjunction with the LEPs, to project future floor areas and infrastructure requirements for an area.  This work would be subject to a budget bid for the project in the relevant financial year.

 

Affordable Housing

26.    Council’s draft Inclusive Housing Strategy was endorsed for public exhibition at Council’s Meeting on 24 February 2020, along with the Local Housing Strategy.

27.    As Council does not currently have an adopted policy which sets out the circumstances when Council may seek to negotiate a VPA where the Council is authorised to impose an affordable housing condition under s7.32 of the Environment, Planning and Assessment Act, as an interim measure the draft VPA Policy includes (clauses 2.13-2.15) the circumstances in which Council may negotiate a VPA for affordable housing, as required in clause 5(3) of the 2019 Ministerial Directions.

28.    New clauses 2.13-2.15 state that the Council may seek to negotiate a VPA in connection with the provision of affordable housing ”when the planning agreement is in connection with a planning proposal that proposes an increase to the maximum FSR or building height which applies to the land”. These circumstances “apply until the Council prepares, publishes or otherwise makes publicly available a subsequent separate policy on affordable housing….”

Council Owned Land – Negotiation Steps

29.    The Draft VPA Policy has been amended, based on legal advice, to outline the negotiation steps for VPAs for Council owned land and the how Council may secure community benefits, as follow:

 

4.22  This policy is intended to apply as far as practicable to planning proposals relating to Council-owned or controlled land, and to development by or on behalf of the Council of Council owned or controlled land, in the same way as it applies to other land.

 

4.23 In such circumstances, the Council will provide a public benefit in accordance with this policy by one of the following means:

a)      registering a covenant on title under s88D of the Conveyancing Act 1919,

b)      entering into a planning agreement via a deed poll and registering the agreement on title, or

c)      making provision in the relevant local environmental plan to require provision of the public benefit in respect of the development of the land.

 

4.24 The Council will generally prefer to register a covenant on title as described above. However, if that is not practicable, the Council will provide for the public benefit by one of the other specified means.

Enforcement of VPAs

30.    Section 7 of the Draft VPA Policy and Template VPA (Appendix B) have been strengthened to identify the means of enforcement that Council will require in a VPA. These are in addition to the registration of the VPA on the title of the land;

·        financial security in the form of an unconditional bank guarantee;

·        restriction on the issuing of certificates (i.e. construction, subdivision and occupation certificates) under Part 6 of the Act;

·        the ability for Council to compulsorily acquire land for $1 under the Land Acquisition (Just Terms Compensation) Act 1991; and/or

·        the granting of a charge and registration of a caveat on the title upon execution of the VPA.

31.    With regard to bank guarantees clauses 7.4 and 7.5 state that Council will generally require a bank guarantee to be provided at the following times;

a)      in respect of a VPA in connection with a development or modification application – “on or before the granting of the development consent or modification approval”.

b)      in respect of a VPA in connection with a planning proposal – “on or before the making of the instrument change”.

32.    With regard to VPAs that require payment of monetary contributions, clause 7.7 states that “the Council will generally require that obligation to also be secured by way of a restriction on the issuing of specified construction certificates, subdivision certificates and occupation certificates in respect of the development to which the planning agreement applies until the monetary contributions are paid”.

33.    Also the Draft Policy now requires under clause 7.11 that prior to the Council executing the VPA, the developer is required “to provide Council with the necessary instruments in registrable form signed by all landowners, and produce all title documents and all written consents necessary in order to register the planning agreement on title”. 

Entering into a VPA

34.    A new clause 7.13 has been included in the Draft VPA Policy to state that the Council will generally require a provision to be included in a VPA to the effect that the VPA “operates as a deed poll in favour of the Council on and from the date of execution by the developer until the date on which this deed is signed by all the parties”.

35.    This is to ensure that the provisions of the VPA are binding even if there is a failure of the developer to give a letter of offer, or Council, for whatever reason delays in executing the VPA.

36.    Also clause 7.16 has been amended to state that if there is development application, the Council will generally require the VPA to be entered into as a “deferred commencement condition” of granting development consent.

37.    To address the timing of payment of contributions, clause 7.20 has been inserted and states that “Council will not agree to receiving monetary contributions in the absence of a fully executed planning agreement”.

Dedication of land

38.    Clause 5.22 of the Draft VPA Policy has been amended to state that “Unless otherwise agreed, where the benefit under a planning agreement is the provision of land for a public purpose, the Council will generally seek to value land being dedicated. In that case, where the floor space potential of the dedicated land can be transferred and developed elsewhere on the development site, the value of the dedicated land will be 25% of generic market value of the land prior to floor space transfer

Other amendments

39.    VPA Costs (clause 2.18) - strengthened to state that the Council will generally require a VPA to make provision for payment by the developer of the “Council’s costs of negotiating, preparing, executing and registering (including removal of registration of) the planning agreement, as well as monitoring, enforcing, implementing, amending and revoking or terminating the planning agreement”.

40.    Negotiation Procedures (section 4) – the process and procedures for negotiating and entering into a VPA have been updated to reflect Council’s current process and best practice.  

41.    Pooling of contributions (clause 5.5) - new wording has been included to allow not only money paid under different VPAs to be pooled, but also money paid under same VPA for different purposes to be pooled.

42.    Management of land dedicated and works by the developer (clause 7.23) – this clause has been amended to remove the requirement for a separate implementation agreement to Council agreeing on the terms of management and that these be specified in the VPA.

43.    Monitoring and annual reporting (clause 7.24) – this clause requires the developer to provide annual reports on the performance of the VPA obligations

44.    Template Planning Agreement (Appendix B) – the template VPA has been updated to reflect the amendments in the Policy.

 

Financial Implications

45.    Within budget allocation.

 

Risk Implications

46.    Enterprise risk/s identified and management process applied.

 

Community Engagement

47.    Subject to Council endorsing the Draft VPA Policy for public exhibition, the Draft VPA Policy will be placed on public exhibition for a period of 28 days.

 

File Reference

D20/45486

ATTACHMENTS

Attachment 1

Draft Georges River Planning Agreements Policy - Revision 2 - February 2020

 


Georges River Council -         Environment and Planning - Monday, 9 March 2020

ENV007-20             Draft Georges River Planning Agreements Policy 2020

[Appendix 1]          Draft Georges River Planning Agreements Policy - Revision 2 - February 2020

 

 

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Georges River Council –         Environment and Planning -  Monday, 9 March 2020                                                       Page 152

Item:                   ENV008-20        Legal Report 

Author:              Director Legal Services and General Counsel

Directorate:      Office of the General Manager

Matter Type:     Committee Reports

 

 

 

RECOMMENDATION:

a)   That Council no longer receive monthly reports on Court matters.

b)   That the detailed monthly report on the status of current Court cases, including costs for the financial year, continue to be published on Council’s website.

 

 

EXECUTIVE SUMMARY

1.      Council has formerly resolved that in circumstances where the legal report includes company names, company searches are provided on each party to avoid Councillors’ potential breaches of the Code of Conduct.

2.      Council has also resolved that a detailed monthly legal report on the status and cumulative costs for the financial year of Council’s Court proceedings be published on Council’s website.

3.      Following receipt of advice, including from the Office of Local Government, it is recommended that a better approach, to assist Councillors to manage any perceived conflicts of interest, is to maintain the monthly detailed and public reporting of legal matters on Council’s website and to cease the practice of reporting legal matters to Council.

BACKGROUND

4.      Council has formerly resolved that, “The legal report to the Environment and Planning Committee provide detailed information on Court matters (excluding costs)”.

5.      The Terms of Reference for Council’s Finance and Governance Committee, as amended, include, “Court action and legal matters”. 

6.      Council had resolved that, “Company extracts be provided to all Councillors for all matters included in all Advice on Costs and Status of Council’s Court Proceedings”.

7.      The Council further resolved that:

a.      A monthly detailed report on the status of current Court cases including costs for the financial year, is published on Council’s website; and

b.      That company searches are not required to be obtained for legal reports where a summary only is provided, until such time as legal advice is received on the matter.

8.      The issue arose as a result of the obligations in the Model Code of Conduct for Local Councils 2018 and adopted by Council (Code of Conduct) that require Councillors to disclose and manage conflicts of interest.  Councillors had expressed concern that in circumstances where a report is being considered that refers to a company name, they need a company search to ascertain the director(s) of that company in order to manage any potential conflicts and avoid a breach of the Code of Conduct.

9.      Advice has confirmed that:

a.      The provision of company searches to Councillors may be unnecessary and may work against the objective of Councillors by bringing pecuniary interests to the attention of Councillors of which they were unaware and in respect of which no disclosure or management would have been required.

b.      A simplified reporting which does not reveal details of applicants or addresses relevant to legal proceedings, could avoid Councillors becoming aware of any potential conflict, thus avoiding any breach of pecuniary interest disclosure obligations.

c.       Further, to avoid any breach of a potential non pecuniary conflict of interest, a simplified reporting system where Councillors are passively receiving information, rather than actively undertaking a function in respect of particular legal matters, no potential for a pecuniary or non-pecuniary conflict of interest arises.

10.    The Office of Local Government concurs with the above. 

11.    Therefore, for the avoidance of doubt, to ensure that Councillors do not have the potential for either a pecuniary or non-pecuniary conflict of interest with regard to legal matters, it is recommended that legal reports no longer be submitted to Committees or Council, particularly in circumstances where Councillors have no role to play in directing or instructing on Court matters.

12.    It is proposed that the publication of the detailed monthly legal report on Council’s website continue due to the public interest in Council’s legal matters and to maintain transparency.

13.    An alternative to this approach is that a simplified quarterly report be provided on completed Court matters where all pertinent details (such as the applicant/defendant and relevant property address) have been de-identified.

 

FINANCIAL IMPLICATIONS

14.    Within budget allocation.

 

RISK IMPLICATIONS

15.    Potential risks involving conflicts of interest identified.

 

COMMUNITY ENGAGEMENT

16.    A detailed report on Council’s current legal proceedings (status and costs) is published monthly on Council’s website.

 

FILE REFERENCE

17/1831