Agenda

Ordinary Council Meeting

2 February 2009

The meeting commences at 6.30pm. If members of the public are

not interested in any business recommended to be considered in

Closed Session or there is no such business, Council will ordinarily

commence consideration of all other business at 7pm.

Notice of Meeting

Dear Councillors

Notice is given of the Ordinary Council Meeting, to be held in the Council Chambers, Lower Ground Floor, 48 Longueville Road, Lane Cove on Monday 2 February 2009 commencing at 6:00pm. The business to be transacted at the meeting is included in this business paper.

Yours faithfully

Peter Brown

General Manager

Council Meeting Procedures

The Council meeting is chaired by the Mayor, Councillor Ian Longbottom. Councillors are entitled to one vote on a matter. If votes are equal, the Chairperson has a second or casting vote. When a majority of Councillors vote in favour of a Motion it becomes a decision of the Council. Minutes of Council and Committee meetings are published on Council’s website wwww.lanecove.nsw.gov.au by 5pm of the Thursday following the meeting.

The Meeting is conducted in accordance with Council's Code of Meeting Practice. The order of business is listed in the Agenda on the next page. That order will be followed unless Council resolves to modify the order at the meeting. This may occur for example where the members of the public in attendance are interested in specific items of the agenda.

Members of the public may address the Council Meeting on any issue for a maximum of 3 minutes during the public forum which is held at the beginning of the meeting. All persons addressing the Meeting must speak to the Chair. Speakers and Councillors will not enter into general debate or ask questions.

If you do not understand any part of the information given above; require assistance to participate in the meeting due to a disability; or wish to obtain information in relation to Council, please contact Council’s Manager Governance on 99113525.

Please note meetings held in the Council Chambers are recorded on tape for the purposes of verifying the accuracy of minutes and the tapes are not disclosed to any third party under section 12(6) of the Local Government Act, except as allowed under section 18(1) or section 19(1) of the PPIP Act, or where Council is compelled to do so by court order, warrant or subpoena or by any other legislation.

Ordinary Council 2 February 2009
TABLE OF CONTENTS

DECLARATIONS OF INTEREST

APOLOGIES

OPENING OF MEETING WITH PRAYER

ACKNOWLEDGMENT TO COUNTRY

MATTERS RECOMMENDED BY THE GENERAL MANAGER TO BE CONSIDERED IN CLOSED COMMITTEE

Confidential Items

1. General Managers Report No. 4

SUBJECT: Senior Staff Contracts

It is recommended that the Council close so much of the meeting to the public as provided for under Section 10A(2) (a) of the Local Government Act, 1993, on the grounds that the matter will involve the discussion of personnel matters concerning a particular individual; it further being considered that discussion of the matter in open meeting would be, on balance, contrary to public interest by reason of the foregoing.

2. public forum

Members of the public may address the Council Meeting on any issue for 3 minutes.

CONFIRMATION OF MINUTES

3. ORDINARY COUNCIL MEETING - 15 DECEMBER 2008

Orders Of The Day

4. Order Of The Day No. 1

SUBJECT: Meeting in the Plaza - 28 February 2009

General Managers Reports

5. General Managers Report No. 1

SUBJECT: Councillor Development Strategy - Councillor Information Seminars

6. General Managers Report No. 2

SUBJECT: Lane Cove Market Square Status Report

Corporate Services Division Reports

7. Corporate Services Division Report No. 2

SUBJECT: De-corporatisation of NSW Councils and Temporary Appointments

8. Corporate Services Division Report No. 3

SUBJECT: Delegation of Authority to the General Manager

Open Space and Urban Services Division Reports

9. Open Space and Urban Services Division Report No. 2

SUBJECT: Delegation to Council's for the Regulation of Traffic

Environmental Services Division Reports

10. Environmental Services Division Report No. 1

SUBJECT: Delegated Authority Report - December 2008

QUESTIONS WITHOUT NOTICE

Ordinary Council Meeting 2 February 2009
General Managers Report No. 1

Reference: General Managers Report No. 1

Subject: Councillor Development Strategy - Councillor Information Seminars

Record No: SU2385 - 791/09

Author(s): Peter Brown

Executive Summary

The Department of Local Government held seminars for Councillors during October to December 2008 as one component of their Councillor Development Strategy to assist councillors elected on 13 September 2008 to undertake their role effectively. The purpose of this report is to detail which seminar Councillors attended and any feedback on the seminars to the Department of Local Government.

Discussion

The Department of Local Government is currently implementing a Councillor Development Strategy to ensure that all NSW councillors elected in September 2008 have timely access to the information needed to understand and undertake their roles and responsibilities effectively. The Strategy has been developed in partnership with the Local Government Association of NSW and the Shires Association of NSW and comprises a number of components. The Strategy also aims to facilitate ongoing professional development for councillors.

One component of the Department of Local Government’s Strategy was the conduct of half-day councillor information seminars which all councillors were expected to attend. The seminars were held throughout October, November and December 2008, in approximately 42 regional and metropolitan locations across NSW.

On 9 September, the Department of Local Government sent all councils a Circular (08-55) shown attached as AT 1, outlining the venues and dates for these seminars, the registration process and requested “General Managers to report to the first council meeting in 2009 on which seminar each of their council’s councillors attended and any feedback from councillors about the seminar”.

Councillors Bennison, Brooks-Horn, Forrest, Gaffney, Longbottom, Mcilroy, Palmer, Smith and the General Manager attended the seminar for the NSROC Region held on 22 October at Willoughby Council. Councilor Tudge was unable to attend the councillor seminars.

The Department has requested feedback on the seminars, Councillors may wish to provide feedback which can be encapsulated into a submission to the Department.

RECOMMENDATION

That Council send a letter to the Department of Local Government with feedback on the councillor seminar held on 22 October 2008 at Chatswood.

Peter Brown

General Manager

General Managers Unit

ATTACHMENTS:

AT‑1 View

Circular 08-55 Councillor Development Strategy

5 Pages

Ordinary Council Meeting 2 February 2009
General Managers Report No. 2

Reference: General Managers Report No. 2

Subject: Lane Cove Market Square Status Report

Record No: SU1460 - 1832/09

Author(s): John Lee

Executive Summary

This monthly status report updates Council on continued construction progress on the Lane Cove Market Square development.

Discussion

Apart from the Christmas / new year break, work has continued on the Lane Cove Market Square development.

As at the date of this report, the following two photographs indicate the change in progress during the week ending 24/1/09, with a significant part of level 2 carpark having been poured.

Frequent pouring of slabs and columns will continue over the coming weeks.

RECOMMENDATION

That Council receive and note the Lane Cove Market Square Status Report

Peter Brown

General Manager

General Managers Unit

ATTACHMENTS:

There are no supporting documents for this report.

Ordinary Council Meeting 2 February 2009
Corporate Services Division Report No. 2

Reference: Corporate Services Division Report No. 2

Subject: De-corporatisation of NSW Councils and Temporary Appointments

Record No: SU199 - 2234/09

Author(s): Ian Naylor

Executive Summary

The purpose of this report is to advise Council that legislation was passed by NSW Parliament in November last year changing the legal status of all NSW councils. It is recommended that Council receive and note this report.

Background

On 22 October 2008 the Minister for Local Government the Hon. Barbara Perry MP introduced the Local Government Amendment (Legal Status) Bill 2008 into the Legislative Assembly. The object of the Bill was to amend the Local Government Act 1993:

(a) to convert the status of local and county councils from their existing status as bodies corporate to the status of bodies politic of the State with the legal capacity and powers of an individual;

(b) to provide that a person who is appointed to an employment position at a council on a temporary basis while the holder of the position is on parental leave may continue in that position for a period of up to 24 months, and

(c) to include a regulation making power to specify the matters to be taken into account by the minister in granting consent to a council forming or acquiring a controlling interest in a corporation or other entity, and the conditions of such a consent.

Discussion

The Bill passed through the Legislative Assembly and Legislative Council without amendment and was assented to by the Governor on 20 November 2008.

Councils have now ceased to be “bodies corporate” and become “bodies politic of the State” with the legal capacity and power of an individual. However, a NSW State law will apply to a council in the same way as it applies to and in respect of a body corporate. In other words, for the purposes of NSW State law, councils will be treated as “corporations”, and for all other laws (including federal, international and intra-State laws) councils will be treated as “individuals”.

The Bill was designed to remove NSW councils from coverage of the Workplace Relations Act 1996 (Cth). By converting the status of councils from bodies corporate to bodies politic of the State, any debate that NSW councils were constitutional corporations has been removed. With all coverage of the Federal industrial relations jurisdiction removed, Council’s are now unequivocally under the State industrial relations jurisdiction. The LGSA obtained preliminary legal advice in relation to the impact of the change (Attachment 1). In summary the advice is:

Ø “The proposed model is substantially better that the QLD model in that it does not increase the liability of Councillors for the acts and/or omissions of a Council;

Ø Councils will cease to be “bodies corporate” and become “bodies politic of the State” with the legal capacity and power of an individual. However, a NSW State law will apply to a council in the same way as it applies to and in respect of a body corporate. In order words, for the purposes of NSW State law, councils will be treated as “corporations”, and for all other laws (including federal, international and intra-State laws) councils will be treated as “individuals”.

Ø Legal Counsels are of the view that:

o The NSW State Government has the power to convert councils from being “bodies corporate” to “bodies politic of the State”;

o Notwithstanding the legislative changes to remove the corporate status of councils there is a “slight risk” a court may find that a council is still a body corporate. Historically “bodies politic” have also been “bodies corporate”, however, because the NSW Parliament is able to enact laws to recognise legal persons which are either corporations or individuals, Counsel considers that it is theoretically possible for State Parliament to create bodies politic that are not bodies corporate.

o The Bill achieves the objective of removing NSW councils from coverage of the Workplace Relations Act 1996 (Cth) but may have a number of unintended consequences (discussed below). An exception is engineering senior staff employed under the federal Local Government Engineering Senior Staff (NSW) Award. This award was made prior to WorkChoices when the Workplace Relations Act 1996 relied on the Cth’s Industrial Relations power and therefore it is arguable that the award continues as a transitional federal award for those councils that are respondent to it;

Potential consequences (the following are merely examples and are not intended to be an exhaustive list):

Ø Application of federal, intra-state and international laws – Federal, intra-state or international laws may require that councils be a body corporate as a precondition to being able to do business with persons in those jurisdictions. For example, banking laws in another jurisdiction may stipulate that financial institutions in the jurisdiction may only lend money to a body corporate or that only a body corporate may invest in a financial institution in that jurisdiction. Potentially, by ceasing to be a body corporate, a council could be in breach of the banking laws in the other jurisdiction or in breach of the terms of its contract with the financial institution. Where there is a fundamental breach of contract, councils could be exposed to damages claims. Councils will need to review their contractual arrangements with persons/bodies operating outside of the NSW legal jurisdiction.

Ø Trade Practices Act (Cth) – By ceasing to be a body corporate, the Trades Practices Act (Cth) no longer applies as this Act only applies to corporations. Corporations may be reluctant to do business with councils if they are not bound by the TPA, such as those relating to provisions concerning deceptive and misleading conduct.

Ø Section 50, Interpretation Act 1987 (NSW) - Notwithstanding the Minister’s speech on 23 October, section 50 of the Interpretation Act 1987 (NSW) may no longer apply to councils. Section 50 relates to “statutory corporations” and provides (amongst other things) that a statutory corporation shall have a common seal, and may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions. If s50 does not apply (and therefore the council doesn’t have a common seal) only the general manager or public officer will be able to execute documents on behalf of the council. This could lead to debates over whether council documents have been properly executed (i.e. contracts). Counsel suggests that the proposed legislation expressly state that s50 of the Interpretation Act shall apply to councils as if they were statutory corporations.

Ø Taxation - Since councils will now be viewed as “individuals” under federal law (as opposed to corporations), they will be subject to different tax rules. In some respects, the tax payable by individuals may be greater than the tax payable by a corporation. Counsel has recommended that the Associations seek further advice on this matter. It is likely that councils will be exposed to costs associated with changing their accounting and payroll administration processes.

Ø Medical, pharmaceutical, aged care and other services regulated by federal law – Further advice is required to determine whether ceasing to be a body corporate will impact on a council’s ability to provide and/or attract funding to provide medical, pharmaceutical and aged care services.

Ø Section 106 unfair contracts – Will again apply to councils.

It is the Associations’ understanding that second tier businesses in local government, commercial entities such as Ripples Aquatic and Recreational Centre Ltd at Penrith, will continue to operate as corporations in the federal system.

Unfair dismissal laws – Whilst councils with less than 100 employees will have their access to unfair dismissal laws restored, designated senior staff will lose access to unfair dismissal rights in the federal jurisdiction.

In relation to the potential tax implications referred to above, the Associations have obtained advice from PriceWaterhouseCoopers. Overall, the advice is that from both tax application and reporting perspectives the Local Government (Legal Status) Bill 2008 does not bring significant change for councils. The advice identifies a number of employment tax reporting issues that may potentially create additional administrative burdens for councils. The Associations’ will consult with the ATO to assist councils in alleviating any adverse effects. “

Temporary Appointments

One of the secondary objectives of this bill was to pass legislation allowing for temporary appointment of staff for up to 24 months to a position where the incumbent is on parental leave. The purpose of this change was to remove the ambiguity where councils could not temporarily appoint a person to a position for more than 12 months, however the Award allows staff to take up to 24 months Parental Leave. This proposal was supported by Council at its Meeting on 15 October 2007, in response to a request from the Department of Local Government through a circular on 25 September 2007 seeking feedback from councils on implementing such a proposal.

RECOMMENDATION

That the Report be received and noted.

Craig Wrightson

Executive Manager

Corporate Services Division

ATTACHMENTS:

AT‑1 View

Legal advice obtained Local Government Amendment (Legal Status) Bill 2008

23 Pages

Ordinary Council Meeting 2 February 2009
Corporate Services Division Report No. 3

Reference: Corporate Services Division Report No. 3

Subject: Delegation of Authority to the General Manager

Record No: SU1282 - 2237/09

Author(s): Craig Wrightson

Executive Summary

Section 380 of the Local Government Act (1993) requires Council to review its delegations and make any changes considered appropriate within 12 months after each ordinary election. It is recommended Council endorse the existing delegations to the General Manager.

Discussion

A Council may, by resolution, delegate to the General Manager or any other person or body (not including another employee of the Council) any of the functions of the Council other than matters set out in s377 of the Local Government Act. In turn, the General Manager may delegate, or subdelegate, any of the functions of a General Manager, other than this power of delegation, to any person or body, including another employee of the Council.

Council has previously resolved to delegate its functions, as per the above, to the General Manager who in turn delegates functions to designated staff. The General Manager's delegation (Attachment 1) was last reviewed by Council at its meeting on 7 February 2005 (General Manager’s Report No.3). No new amendments are proposed, however endorsement by the new Council is required by the Act. As per the report in February 2005, the delegations are granted to the position of General Manager, not the individual. The General Manager's delegations to staff undergo regular review.

Conclusion

Council has achieved a great deal of efficiency through the utilisation of delegated authority. Regular reports are provided to the Planning and Building and Services and Resources Committees on the major areas where delegated authority has been utilised.

RECOMMENDATION

That Council confirm its delegations to the General Manager, viz:-

“That the Council pursuant to the powers of delegation conferred to it by Section 377 and Section 381 of the NSW Local Government Act, 1993, and pursuant to every other power it hereunto enabling, Lane Cove Council, hereby delegates to the holder for the time being of the office of General Manager the power to exercise all the functions, powers, duties and authorities conferred upon the Council pursuant to:-

1 The NSW Local Government Act, 1993 and

2 The Environmental Planning & Assessment Act, 1979; and

3 All other Acts, whatsoever under which Council has functions, powers, duties and authorities; and

4 All regulations, by-laws, rules and the like made by, or under any other Act referred to in 1, 2, or 3 above.

Always subject to any resolution made from time to time by the said Council and provided that such delegation of powers shall not and shall not be deemed to be extended to:

1 Any of the matters expressly reserved to the Council in Section 377 of the Local Government Act, 1993; and

2 The alteration of the meeting cycle of Council; and

3 The overview and direction of business activities; and

4 The role of the Mayor as provided for and determined under Section 226 of the Local Government Act 1993; and

5 Major unique items where no policy, practice or code of the Council exists; and

6 Adoption of local environmental plans, development control plans and Section 94 contribution plans pursuant to the Environmental Planning Assessment Act 1979; and

7 Adoption of Council policies and codes; and

8 Items in respect of which the Mayor or a Councillor has specifically requested the General Manager, in writing, to place before Council for determination by Council;

9 Items in respect of which Council has specifically resolved that they be placed before Council.”

Craig Wrightson

Executive Manager

Corporate Services Division

ATTACHMENTS:

AT‑1 View

Minute from 7 February 2005

2 Pages

Ordinary Council Meeting 2 February 2009
Open Space and Urban Services Division Report No. 2

Reference: Open Space and Urban Services Division Report No. 2

Subject: Delegation to Council's for the Regulation of Traffic

Record No: SU1326 - 1950/09

Author(s): Nick Karahlis

Executive Summary

This report has been prepared for the information, particularly of newly elected Councillors, to explain Council’s role in the regulation of traffic.

The Roads and Traffic Authority is legislated as the organisation responsible for the control of traffic on all roads in New South Wales. In order to deal with the number of traffic issues on local roads, the RTA has delegated certain aspects of the control of traffic on local roads.

The RTA has produced guidelines for the delegation to councils for the regulation of traffic, including the operation of the Traffic Committees.

The functions delegated to Council are covered in

· the Road Transport (Safety and Traffic Management) Act 1999 (Part 4 Sections 50 to 55)

· The Roads Act (Division 2 Part 8)

· Authorisation of Special Event Parking on public roads except classified roads in the Road Transport (Safety and Traffic Management) Act 1999

The main issues that Council should be aware of are:

· The legislative power to control traffic through the authorisation of traffic control devices, lies with the RTA and the delegation of this power does not remove the RTA’s ability to exercise those delegated functions should circumstances warrant action.

· Council has limitations when exercising traffic functions. These limitations include the implementation only of certain traffic control facilities. Council cannot exercise a function on a classified road under the Roads Act.

· Council is not empowered to authorise traffic control lights, including interfering with traffic control lights.

· Council must obtain the advice of the NSW Police and the RTA prior to exercising their delegated powers. That is done through the Traffic Committee Meeting.

· Specific functions, such as changing a two –way street into a one-way, or change a turning movement, requires a Traffic Management Plan (TMP) for RTA approval.

It is recommended the report be received and noted.

Background

In terms of legislation, the Transport Administration Act,1988 confers powers to the RTA to exercise functions related to safety and traffic management and to delegate functions to other public agencies, such as councils (Section 50).

The Road Transport (Safety & Traffic Management) Act 1999 provides for a system of traffic laws relating to all vehicles (motorised and non motorised).

Discussion

Council may only exercise their delegated functions in accordance with the Delegation (Section 50) of the Transport Administration Act,1988. To assist councils the RTA has produced guidelines for the utilisation of the delegation to councils for the regulation of traffic and for the structure and functions of the Local Traffic Committee (LTC) Meeting.

The Delegation requires Council to seek the advice of the NSW Police and the RTA prior to exercising their delegated functions. The Council must refer all traffic related matters to the LTC prior to exercising delegated functions.

The LTC is primarily a technical review committee, which is required to advise Council on matters referred to it by Council. These matters must be related to prescribed traffic control devices and traffic control facilities for which Council has delegated authority.

The LTC is made up of four formal members:

· One representative of Council

· One representative of NSW Police

· One representative of the RTA

· The Local State Member of parliament (MP) or their nominee

Additional advisors of the Traffic Committee include:

· Road Safety Officer

· Emergency Services representatives

· Sydney Buses representative and others.

The Council has the responsibility for exercising the delegated functions related to the Roads Act 1993 and documenting the Traffic Committee’s Agendas and Minutes. Council also has the responsibility of notifying the RTA and the NSW Police if the elected Council intends to exercise its delegated functions which are contrary to the advice of the Local Traffic Committee.

The RTA have the responsibility of providing advice on Council’s proposals referred to the LTC, reviewing the Traffic Management Plans submitted to it and appointing the Chairperson of the Regional Traffic Committee (where disputes of the Traffic Committee are resolved).

The Police have the responsibility for providing advice on Council’s proposals referred to the LTC and the Local State Member of Parliament has the responsibility for providing advice on Council proposals referred to the LTC and nominating someone to represent them at the LTC if necessary.

LTC Meetings can be either a monthly face to face meeting or via Electronic meetings or via correspondence. The role of the Traffic Committee is to consider the technical aspects of any proposal and make a recommendation to Council. The LTC’s advice to Council is not binding upon the Council therefore ideally this advice should not be released to the public until Council has considered the matter. Only the formal four representatives have voting power at the Traffic Committee Meeting.

In cases where the Local Traffic Committee advice on a traffic or parking matter is unanimous and Council intends to follow that advice, Council may authorise the implementation of the facility or device without further notifying the RTA or the NSW Police. If the elected Council wishes to exercise a delegated function when the LTC advice is not unanimous, or the elected Council wishes to act contrary to the unanimous LTC advice, then Council must notify in writing, both the NSW Police and the RTA representative of the LTC. Council then must refrain from taking any action for 14 days so that the NSW Police or the RTA is given the opportunity to appeal to the Chairperson, Regional Traffic Committee should they wish.

Any appeal may only be lodged by the RTA or the NSW Police. The Chairperson of the Regional Traffic Committee may;

a) not support Council’s decision or

b) Reject the appeal, which means that they can either support the Council’s decision unconditionally or apply conditions

RECOMMENDATION

That the report be received and noted

Wayne Rylands

Executive Manager

Open Space and Urban Services Division

ATTACHMENTS:

There are no supporting documents for this report.

Ordinary Council Meeting 2 February 2009
Environmental Services Division Report No. 1

Reference: Environmental Services Division Report No. 1

Subject: Delegated Authority Report - December 2008

Record No: SU1863 - 2106/09

Author(s): Michael Mason

During the month of December 2008 a total of 27 Development Applications were determined under delegation by staff and 2 by Council. In addition 6 Construction Certificates and 16 Privately Certified Construction Certificates were issued. There were 3 Privately Certified Complying Developments and 1 by Council.

RECOMMENDATION

That the report be received and noted.

Michael Mason

Executive Manager

Environmental Services Division

ATTACHMENTS:

AT‑1 View

Applications determined for December 2008

4 Pages

Ordinary Council Meeting 2 February 2009
Order Of The Day No. 1