Transcript: Ordinary Meeting, 30 Apr 2020

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00:00:00 Mayor Stewart: Good afternoon, I declare the ordinary meeting open. I would like to acknowledge that today we are meeting on traditional lands of the Kabi Kabi people and I pay my respects to their elders past, present and emerging. I know that everyone is in attendance and there are no apologies. There are two sets of minutes for confirmation today. Firstly, the minutes of the ordinary meeting held on the 19th of March 2020. Do I have a mover and a seconder for these? So, move it. I'll second it. Mover, Councillor Jurisevic. Seconder, Councillor Stockwell. Any issues with those meetings? Minutes? All those in favour? Taken as read and accepted. Carried unanimously. The second set of minutes are the minutes of the post-election meeting held on the 17th Councillor Wilkie: of March 2020. Thank you. Mayor Stewart: What a great day it was. I'll second it.

00:01:00 Seconder, thank you, Councillor Lorentson. All in favour? Carried unanimously. Taken as read. Thank you. There are no mayoral minutes. Councillors, any petitions? Okay, moving on. No notified motions and there are no presentations or deputations. Unusually, we don't have any consideration of committee meeting recommendations today. So, we'll be starting on our committee meetings next month. Today, we have a number of staff reports for this ordinary meeting. First up is the monthly financial report. Councillors, there is a staff recommendation on page five of the agenda. Do I have a mover and a seconder? Councillor Wegener: Can I move it? I'll second it. Mayor Stewart: Thank you, Councillor Stockwell and Weninger. Any questions in regard to these? Deputy Mayor Stockwell: We had the talk earlier. Sorry, Councillor Stockwell. I think this gives us an analysis of leading into the current climate of COVID-19. Obviously,

00:02:00 we're tracking quite well, except for the, obviously, the June forecast for operating revenue. No doubt, we will be not immune to the downturn in the economy, particularly the revenue that we're going to be getting from our facilities, such as the carry-on parks, the J and the Noosa Aquatic Centre. And obviously, what the rest of the report does is reassure us that we are tracking quite well in terms of our position leading into the current downturn, and hopefully that will serve us well during the coming months and years. Speaker 5: Would anyone else like to? Any questions? Councillor Jurisevic: I'll ask a question, if I may. A question of Michael. Where are you? Behind me? Yes. A bit of an interpretation I see in the media today with regard to the statement,

00:03:00 total cash on hand at the end of March was 76 million. Cash on hand will now degrade by approximately 40 million as operational capital costs are incurred through to June 2020. That degradation, I take it, is not only not factored taking COVID into consideration, but also considering normal operations of council. Is that correct? Speaker 1: Yes. Through the Chair, that is correct. It was a bit of misinformation reported this morning. Yes, that counts as part of our normal cash flow cycle. We receive a lot of our revenues in advance, our rates and charges, which we did in January. And as we then spend those funds over the following six months, we rate twice yearly. We spend those funds on our capital expenditure and our operating expenditures. So the cash flow, the 40 million that we're spending, the $50 million degradation of our cash is typical of our cycle. So that's not

00:04:00 so much purely COVID related as reported in the media this morning. Thank you. Mayor Stewart: Thank you. Thanks, Michael. I have a question. Michael, on page nine, regarding the capital works expenditure, there's a 4.3 million underspend. Did a project come in under budget or was scope of works changed in that regard? Speaker 1: We have a number of projects in the capital program, probably over 60 or 70 projects. So obviously there's a lot of ins and outs between each of those projects. We've done a lot of work over the last two weeks with our infrastructure team to look at our forecast. They're actually forecasting that we'll spend, with that total program, I think up to, I think, everything but about $2 million based on the timing of the project delivery. So we're comfortable that we'll achieve a very high proportion of spending on our capital program. Mayor Stewart: Thanks, Michael. Anyone else? Councillor Jurisevic: If that answers the question, I'll get an answer.

00:05:00 Councillor Lorentson: I'd just like to ask one question of Michael. Under the category of materials and services, you've listed some significant categories. I was just trying to find costs for consultant and consultancy fees. Is that covered under that category? Speaker 1: Yes, through the Chair. Look, consulting fees forms part of materials and services. Whilst we don't specifically report on that as a line item in the monthly reporting, that's actually contained within a lot of those different categories, i.e. waste management and development assessment and so on. So there's, I think as I mentioned, the Council's in a number of different categories. You know, prior there's different ways and means we can report on our performance and more than happy to take suggestions on how we can, you know, improve our reporting to

00:06:00 improve transparency. Thank you. I hope that answers the question. Councillor Jurisevic: So just as an explanation of what does appear in the report with regard to the item listed as category summary and comments, the items that are of concern that are either under or over the category summary and comments. Speaker 2: I think the question was in the actual report, the monthly report, we're normally reporting those things that are under or over budget. We don't report every single line item that's still on budget. Speaker 1: Yes, so I agree with the Chair. Yeah, that's correct. We generally try and report on significant variances that we consider Council needs to be aware of to help support that. So that's a big part of our budget and how we deliver services to the community. Mayor Stewart: Thanks, Michael. Brian. Thanks, Frank.

00:07:00 Speaker 5: Put the vote up. Mayor Stewart: Is everyone in favour of carrying into that list? Thank you. There is, Councillors, there is a staff recommendation on page 18 of the agenda. Do we have a mover and a seconder? I think we have a mover. Councillor Wilkie: Thank you Madam Chair, probably a question for Billy. The gym application is recommended for approval. There were some concerns you had about car parking and it's a performance based planning scheme so you've proposed some solutions to manage the perceived shortfall

00:08:00 in car parking. Can you just talk us through what some of those, how you propose to manage those impacts of car parking? Are you talking to your motion or are you asking a question? Just ask a question. I can ask a question at any time can't I? Speaker 2: He can wave his right to speak to them. That's what I'm saying, he wouldn't wave Speaker 3: his right to speak to them. So yes Frank that's correct but in this instance the applicant has put forward the solution and in this instance we consider it reasonable to manage car parking. There is still some concerns and that's why we've placed the condition on there for this to be reviewed in two years' time essentially once it commences operation. So that answers your question. Councillor Wilkie: So it's how do you propose, what are the specifics of how you propose to manage these? Speaker 3: Yes certainly. So in that regard the applicant has proposed to limit the maximum number of users to 27 and the way that they're limiting that is using an online booking system. It's understood that perhaps we're unaware of whether there's any other

00:09:00 gyms in the Noosa area that operate that way. The applicant has put that forward to operate in such a manner and we consider that that may be reasonable or that is reasonable to address the car parking concerns and as I say we can, or council can review that in two years' time. Will there be ongoing Councillor Wilkie: monitoring of that situation Billy? Yes that's correct. So we can monitor that Speaker 3: through our compliance officer in the light to keep an eye on how that situation is progressing or how that use is operating. Also there is the ability for other property owners in the area to make comment to council on how that is progressing forward. Mayor Stewart: Thank you. I believe it's correct that the applicant actually was requested to provide parking surveys for these two existing car parks. Speaker 3: That's correct isn't it? Yes that's correct. They did not provide car parking surveys from other gyms but they did provide a survey from their existing gym at Noosa Civic site.

00:10:00 Mayor Stewart: And you were satisfied with the car parking arrangements that they came to? Speaker 3: Not necessarily in relation to the surveys but in relation to the maximum number of users that are capped or are proposed to be capped and therefore yes we consider that reasonable in this instance based on the number of spaces provided on site. And I believe there's a two Mayor Stewart: year reassessment after two years is that correct? That's correct. Councillor Jurisevic: Yes thank you. I'll ask a question along the same lines if I may. With regard to the capping of patrons at 27 is there any way apart from officers attending of ensuring that's being done i.e. are there any record keeping or is there any way of limiting or managing through the software the number of patrons allowed at any one time? Yes that's a good question Speaker 3: Joe. So the applicant suggests that they do have a number of data mechanisms as far as CCTV, data logging of the card, the access card is used to access the site. So therefore

00:11:00 at any one time they could potentially provide that data to demonstrate that they're compliant Councillor Jurisevic: with their approval. Thank you. Second question if I may. Reading through on page 22 the paragraph, second paragraph above the table at the end says proposed gym currently well located in Noosaville Civic. The second sentence goes on this is the only reason given by the applicant for the proposed relocation is therefore difficult to reconcile that there is any real planning need for this gym to operate in the industrial area that warrants approving and inconsistent use in the industrial area. Can you just outline why after making that statement that we are approving the gym in the industrial area? Yes. So essentially the construction of the Speaker 3: gym in Noosaville in the industrial area has been approved in the past under the current planning scheme. The council has approved a number of gyms in the industrial area, in the Noosaville industrial area and looking forward under the draft planning scheme the

00:12:00 scheme nominates this site as a consistent, nominates this site for a gym to be a consistent use therefore intending that some of these types of uses will occur in this area. So Councillor Jurisevic: just to clarify that references to the old planning scheme and the new planning scheme gives a greater leniency towards an activity of this sort in that element of the industrial Speaker 3: area. Yes. So based on past decisions and the planning scheme moving forward it's considered reasonable or perhaps unreasonable for the council to for us to recommend to refuse it. Deputy Mayor Stockwell: Thank you. Okay. On the same stream. You have made reference to the new planning scheme and we can play a significant weight on it at the moment. But what I would like to ask you to do is look at the new planning scheme. Does the new planning scheme have a different method of calculating car parking spaces and what would that recommend? Speaker 3: So essentially the car parking rate is consistent with the current scheme. It requires one space

00:13:00 per 20 square metres floor area to be provided for car parking to be provided that way, which is generally consistent with our current scheme. However, we have taken a different approach in this instance using the council's traffic engineer and consultant advice in relation to the new planning scheme. So the new planning scheme has a different method of calculating car parking spaces in relation to how this particular model or gen and proposal is proposed in this instance. Deputy Mayor Stockwell: Can I just then give you some time to breathe? I think it's probably manager of the development trials. Have we ever exercised the same level of discretion in recent history? Like, you know, it's a fairly significant variation, nearly 50% of car parking requirements. No. Would this be a... Have we ever done a... No.

00:14:00 Speaker 5: The car parking rate of 1 per 20 is a probable solution of the same scheme, so what we're looking at is the performance outcome of the scheme to make sure that car parking demand will be satisfied off-site. So we have looked at that in terms of their proposal to limit the number of members on the party all the time and the way they would go about doing it. We've never seen that working before, we're not aware of any other schemes that operate that way, but we think it's a reasonable solution at their point. But we have recommended a two year limit in order to monitor that and make sure. Any further questions? Deputy Mayor Stockwell: In terms of risk in the future, if you're saying it's a performance-based solution then you're happy with it? If I can just then follow on. As a first trial, would a one year trial period be more in keeping with something we've

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00:15:00 done previously, say like Billy's Bicycle or Noosa Junction? Speaker 5: I thought a two year time frame is probably more appropriate. The business is moving with tenancy, so a 12 month period is a very short time frame, but then take on a new tenancy. The area is quite a newly developed area. There's not a lot of other businesses in the area. So if there does become a problem, it's not likely to become a problem. Parking doesn't work. If the strategy doesn't work, it's not likely to become a parking problem in the short term because the land is still developing in that area and they'll take up that street parking. But I thought the two year period was a reasonable time for a business that's going to make that take up a lease and that commitment. Councillor Wilkie: Sorry to interrupt you. Two year time frame. We're still in shutdown because of COVID.

00:16:00 Was the two year time frame the consideration of giving two years as opposed to one year? Did that take into account perhaps the shutdowns that their businesses experienced because of COVID or that would be a standard time frame that you would normally apply? Speaker 5: I have to say I didn't consider COVID, although I do know that gyms are not allowed to operate at this time. Yes. I guess it's difficult to know at what point they're going to. But I thought the two year time frame, I still think that's probably a reasonable time frame. But that's something that the applicant could ask for an extension of if need be. I know it's a difficult thing to answer because we don't know when gyms are going to operate again. Mayor Stewart: That was my question exactly, just in regard to COVID, if that was a consideration. But I think for two years, as you explained, that's a good time to get a business up and running, especially considering they haven't even moved at this stage. Councillor Jurisevic: Given that the business is currently operating, have they given any indication of when their

00:17:00 peak access times are currently? Because operating in the industrial area, obviously in the industrial area are only primarily functions, and we've got this with other operators in the area, parking restrictions at certain hours. Is that something that's been considered by staff? Speaker 3: So in relation to their current operation time frame, I don't think it's been considered Councillor Finzel: Thank you. I just have a question around the proposed booking system. In the report it says that it may not be able to be suitably implemented and may be difficult to enforce. How do you propose to monitor the booking system and its effectiveness over that two-year time frame that you're proposing?

00:18:00 Speaker 3: Yes, so there was some concerns around this type of business model operating in the industrial area due to the car parking concerns. Now our understanding is that there isn't any other gyms perhaps in the Moosa area that operate in such a manner. So we were concerned that primarily, in the first instance, that it may not be suitable for the gym to operate as such. But given there is mechanisms such as the applicant can provide the data that they will gain through access, CCTV, etc. They can provide that to council at any one time that council may ask for it. But also our compliance team could monitor the situation as well as adjoining property owners can obviously come out to the council, as I say. So, yeah, sorry, does that answer your question? Councillor Finzel: Yeah, can I ask again? Yeah.

00:19:00 So I'm just wondering then how are you going to measure that and not leave it up to a random, like someone might complain or whatever? Are you going to have like measured time frames where you'll collect that data? Speaker 5: Yeah, look, I think, yeah. I think it would be really easy to monitor in that we can go to the site at random times. Okay. At their peak times and observe what's going on in terms of, you know, who's parking on site, you know, actually going into the gym, looking at numbers in the gym. I think that that's reasonably, I think, a matter to monitor. Okay. And, you know, we won't be out there for the rest of the week because we're going to be out there on some random data from time to time to have a look at it. Thank you. Deputy Mayor Stockwell: Yeah, just further on your assessment, there's a developing area, and I can see on the map on page 20, which might be useful to bring up for the image. Am I correct in saying the diagonally opposite this site on the other side of the T intersection is Landersy Brewery?

00:20:00 Speaker 5: Yeah. Deputy Mayor Stockwell: And would I say that the vacant block immediately opposite has approval for a chocolate factory with a cafe that might attract tourists? Yeah. So it would probably be, no, I'll deliver it to the bank. Okay. Mayor Stewart: Anyone else? Councillor Wegener: Tom. Just almost like a statement, but it's a funny situation where it's precarious, it's a grey area. And, of course, there's a conflict because the gym's going to want to get as many people in as they can to make them happy, but there's a conflict with, you know, the parking area. But on the other hand, it's a 24-hour gym, so that when people come early, they come late at night, you know, so the parking will only be an issue during certain parts of the day. So it seems that you can have your work put out for you, checking out, checking up on them, and making sure that everybody's happy, especially if they did all of it at that new place.

00:21:00 Is that a question? The question is, I hope that you can get up on that, Kerri, yeah, good luck. Mayor Stewart: Would anyone else like to speak to the motion? Deputy Mayor Stockwell: I've got one more question, just because I'm considering an amendment. The current condition 11, which is on page 18, suggests that this development approval lapses two years after the commencement of the use. So that's after they've moved and started the operation? No. Okay, so I'd like to move an amendment, and that amendment is simply to change that this development approval lapses one year after the commencement of the use, unless further extended by Council in writing and elsewhere. Mayor Stewart: Anyone else? Councillor Jurisevic: I'll second that. Councillor Lorentson: Kerri, would you like to speak to that? Deputy Mayor Stockwell: Yeah, I will, because I do think it is pre-synthetic. I hope it works, but I do know that it's difficult to get an on-street park in that area already.

00:22:00 There is a number of, as I said, there is one existing use that will have a non-industrial use area, non-industrial use visitation during that period. And I just think that if I was a neighbouring use, say, for example, like the existing chocolate factory that may get developed over the, in the coming times, if one use was having a precedent by using electronic system, I just think that a year after commencement is a good time to review, and if it's working, I'm quite happy for it then to go unconditional. I just think that if I was, if there was, there became parking problems and we had neighbouring uses that were complaining about that parking problem, that we'd be in a much better spot if it was a shorter term rather than the two years. Speaker 5: Anyone else like to speak to the motion? Yeah, please. Amendment. Amendment, sorry. Councillor Wilkie: Yeah, I'll put a contrary view. I, given the situation that all businesses are currently facing, gyms are shut down.

00:23:00 This particular business not only has the challenge of not being able to take in customers of this, clients of this time, but they also have to go through the process of shifting their entire business. I really think that two years is more of a reasonable timeframe to allow them to at least establish themselves. We don't know whether after 12 months, the restriction, gym, gyms may still not be able to take in clients. And I think, perhaps, we'll see. Perhaps a one-year time period unnecessarily cruels the business's chances or any of us being able to see how it realistically and reasonably will be operating when things are back to normal. I think after two years, we'll have a better idea of what the new normal will look like. Mayor Stewart: I agree with Councillor Wilkie. I know that it is two years from the commencement of the gym, but I think a gym, it takes a while to get members.

00:24:00 It takes a while to establish the business. So I think, actually, two years is a fair timeframe. I still think the amount of car parks with the amount of people that they have said won't exceed is fair and reasonable. And I think it should stand as two years. Thank you. Councillor Lorentson: I'd like to add to that, Clare. I also think that what Councillor Stockwell is proposing is an unreasonable imposition. I believe that the material change of use is consistent with Adventure Drive Enterprise Precinct. Which says that the use is compatible with the surrounding industry uses. I've also taken the time to speak to people in the industrial area and they actually welcome new businesses such as the gym. Mayor Stewart: Would anyone else like to speak to the motion? Councillor Finzel: Can I just say something? Yeah, I agree with the time of the COVID and I understand that businesses are struggling. But I would like to just make a comment that we don't want to fall into discrimination where one business can use an electric monitor.

00:25:00 Or a monitoring system or a computer based system. And that begins to become a precedent where we define business can have car parking if they have the IT set up in their business to do so. We don't want to be seen to discriminate against businesses that do not have that ability to measure people coming in and out of their business. And then allocate car parks based on an electronic system. Which you yourself have already recommended that is not the best and that you're going to need to monitor that. So, yeah, thank you. Speaker 5: Anyone else? Councillor Lorentson: Karen, just to clarify, it's not an online parking system. It's an online booking system. Yes, that's right. Yeah, booking. Mayor Stewart: Thank you, Amelia. That's right. Would anyone else like to move, ask a question or speak to the motion? Amended motion? Councillor Jurisevic: Look, the amendment was regarded, there's a couple of points mentioned through this that I think need clarification. This isn't a new business, it's an existing business moving to a new location.

00:26:00 So it's a business that's been established for some time and been operating for some time. But like the other councils in this difficult time, I see that the condition and I'm sure that the staff have considered the two year time period appropriately. And I'm prepared to support the staff's original position of two years to give the business time to establish. And I'm sure that within that time, we'll ascertain whether there are any changes. Any challenges going forward with regard to the business operating and the parking restrictions in that area. Councillor Wilkie: I'll ask a question, Madam Chair. A question of staff. What would be the challenges you as the planning authority faces with just a one year, having the development approval lapse after one year? What, why would you not support that timeframe? Speaker 5: So when we impose conditions on approval, they have to, the planning act requires that they be reasonable and relevant.

00:27:00 So we need to think carefully about that. So it's important that we think of it that way. I think a one year time frame would not be reasonable. They have come up with a reasonable strategy to address the likely parking demand from this gym. And it is, we haven't done that yet. We haven't seen it before. And we're not sure it's the best solution. But it's still a practical solution that they've put forward and has the means to work. We are able to monitor it over the two year period. But there's still conditions that they have to comply with in that two year period that we can call them to and see if it's causing issues. So again, I just, I think the two year period is probably more of a reasonable period. The area is not all developed yet. The site's vacant, which means street parking is not taken up.

00:28:00 So if it's not working very well, there is opportunity for patrons to park on the street. That should be called a parking issue. So that's why I think the two year period is reasonable. If this is on the Eumundi Vista Road where parking and traffic is more critical, then the recommended station may be a little bit different. Thank you. Deputy Mayor Stockwell: I think everyone's raised perfectly valid points. In talking to the amendment, I think Councillor Finzel has picked up on my chief concern. And that is about, my concern is about equity between business and having an untried and unproven method of calculating car parking contributions. I do hope that the business is a success and I can understand the points that have been raised. That in terms of two years will give them more space. That in terms of security. However, I do think looking at a broader area, that if there is problems arise, the two years may create a ride for councils back.

00:29:00 If the system as proposed proves not to meet the standards we hope it would. Simple as that. Thank you. Thank you. No, that's it. Oh, sorry. We might vote on the amendment. Shall I vote on the amendment? I just got started. Councillor Lorentson: Sorry. Yeah, absolutely. Mayor Stewart: We might vote on the amendment. Councillor Stockwell is all in favour? No. Speaker 2: Yep. 2. Mayor Stewart: Councillor 2. I beg your pardon. Yeah. Councillor Finzel. 2. Speaker 2: 2. Mayor Stewart: Thank you. Councillor Jurisevic: 1, 2, 6, 1. Thank you. Mayor Stewart: We'll go back to the original motion. Speaker 2: We haven't got the answer. Mayor Stewart: Yep. So. Speaker 2: Yep. Mayor Stewart: All in favour? Speaker 2: Go back to the original motion. The original motion. Mayor Stewart: Anyone else wish to speak to that? The original motion. Would you like to speak to the original motion? Councillor Lorentson: Yep. I'd just like to say that the precedence I believe that council is setting is a localised approach to industrial areas and flexibility. And I think that if that spills into other precincts, business precincts, I think the

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00:30:00 community will be able to take that approach. And that will stand to benefit. Thank you. Councillor Jurisevic: Look, I'll be supporting the motion. I think the business will not, through normal operating times, hinder the other uses in the industrial area. I think their peak times are outside of the typical uses. And I think that their car park challenges will be outside of normal operating hours of other businesses in the industrial area. Except for possibly the likes of land and sea. And I don't see there being too many challenges here. And I'm sure that over the two years that we'll find that this business will be able to continue on in the long term. Mayor Stewart: Would anyone else like to speak? Deputy Mayor Stockwell: I do think it's a development that is consistent with the new planning scheme.

00:31:00 And that's why I support it. I do think it will provide a good service, particularly actually at lunchtime for people working in industrial estate in the town. I may even have a son who would move there. But I think on a whole, yeah, we have identified that there is this growing demand for this sort of activity within that particular precinct. It fits that. And I do hope that their system does operate well and doesn't create an obvious for surrounding uses. Thank you. Mayor Stewart: Councillor McEwan. Councillor Wilkie: I think it's all been said, Madam Chair. Mayor Stewart: Thank you very much. We might take a vote on that motion. All in favour? No. Thank you. The next item on the agenda is the material change of use application for a commercial business on page 29 of our agendas. Do we have a mover and a seconder? Councillor Wilkie: I'll move it, Madam Chair. Councillor Lorentson: Thank you, Councillor Wilkie. There we go.

00:32:00 I'll second it. Thank you, Councillor Dunstan. Councillor Wilkie: Yeah, thank you. I commend staff for their approach taken to this business. It is an anomaly. It does, and they've recognised that they have a historic commercial approval dating back to about 1969. It's allowed these sort of uses to take place in this situation. They've addressed car parking issues by providing more off-site parking. And yeah, I commend the staff for their approach in this particular instance. Speaker 5: Does anyone else like to speak to the motion? Mayor Stewart: Any questions? Councillor Wilkie: Again, I commend staff. But just on a broader note, Madam Chair, I'd also like to commend the councillors for getting their heads around these planning reports that have come straight to an ordinary meeting. Normally they come through a committee system, and I think they've done very well to get their heads around these. Very complicated reports. Thank you, Councillor Wilkie. Yeah. Have an ordinary meeting.

00:33:00 Mayor Stewart: Thank you, Frank. Thank you. We'll vote. We've got a motion. All in favour? Councillor Wilkie: No. Thank you. Mayor Stewart: Look, the next item is the Planning and Environment Court of Appeal number DB897, relating to the refusal of an application for a material change of use for an NBN tower at 244 Tablelands Road, Cooran. I think we've got a couple of declarations on that. Yeah, I understand a couple of them. A number of conflict of interest declarations. Yes, I would like to declare a conflict of interest. Thank you. Speaker 2: You just need to read out what that interest is. Someone's got it. Someone's got it. Councillor Finzel: How do I read it? Councillor Wilkie: Just read it. Councillor Finzel: I declare a conflict, a real conflict of interest in this matter, as defined in Section 175D of the Local Government Act 2009. As prior to my election to Council, I sign a petition relating to this application. Speaker 2: Thank you.

00:34:00 Mayor Stewart: Thank you. Councillor Finzel: Thank you, Councillor. Thank you. Councillor Wegener: Councillor Litton. I'd like to declare a potential conflict of interest. A real conflict of interest in this matter, as defined in Section 175D of the Local Government Act 2009. As I currently have an NBN Tower located on my property and receive income from the NBN via lease agreement. I'll be leaving the room. Councillor Lorentson: Thank you. Mayor Stewart: Thank you. Councillor Lorentson: Councillor Lorentson. I move to- Speaker 2: Just wait for the clock to do it. Just wait for the clock to do it. Just wait for the clock to do it. Just wait for the clock to do it. Councillor Lorentson: Madam Chairman, I move to defer consideration of the matter to the May round of meetings to allow the new Councillors time to obtain further information. Councillor Wilkie: I'll second that, Madam Chair. Councillor Lorentson: Thank you. Thank you, Councillor Litton. Councillor Litton. I recommend that we defer consideration to the May round of meetings so that the new Councillors can obtain further information, briefing and advice in relation to the planning

00:35:00 matter before us. The development application before us is contentious and in the public interest and requires more than seven days to fully understand. Four Councillors have been in their position for less than three weeks. We have not had the advantage of 18 months consideration on the application before us that was afforded to the other three Councillors. The Local Government Act, Councillor Code of Conduct states that in making decisions in the public interest, Councillors must commit to exercising proper diligence, care and attention. In order to do this, more information and time is required to reach an informed, considered and community benefiting decision. In the motion before us, we have been asked to agree to defend an appeal. I understand that this appeal has just been lodged since Council has refused the application in February 2020. I also understand that there are no current court orders and no mediation.

00:36:00 In making an informed, considered decision, I would like to have more information regarding Council's mediation processes. Given that Council will be moving from a surplus to a surplus, I would like to have a budget in 2020. It is important that Council adopt a conservative approach when it comes to spending public money. I would like to be convinced that my vote does not allow Council to use the process of planning by appeal as a tactic or strategy. It should be used only as a last resort. I would also like to be convinced that all forms of dispute resolution have been exhausted before approving Council's right to defend this appeal. I therefore request the CEO to take the necessary steps to provide the new Councillors with the following so that we can better understand the application before us. Information in relation to alternate dispute resolution procedures that have been formally adopted into Council practices. Minutes of mediation used by Council during the DA process with NBN to prevent or de-escalate

00:37:00 this dispute. Information regarding prospect of success. A cost benefit analysis. Estimate of cost associated with defending the appeal, particularly if the matter proceeds to trial. A legal opinion as to the risk of the applicant making an application for cost against Council in case we don't have a strong case. A briefing from the town planner and lawyers and a site inspection. In conclusion, if we agree to spend public money without proper attention to process and safeguards, we cut off possibilities and options. As a Council, we must be satisfied that all forms of alternate dispute resolutions, including mediation with accredited mediators and independent third parties, have genuinely broken down and that there is no other option than to go to court. I therefore request more time and information to allow the four new Councillors to exercise proper due diligence.

00:38:00 Deputy Mayor Stockwell: I have a question because I suppose I understand the difficulty in coming to the grips. Just a question. Under the Planning and Environment Court rules, do we have to defend the appeal before mediation is opened to us under the courts? Speaker 5: The answer in short is no. The court process provides for mediation. So you will not get to trial without going through mediation first, which is a good practice to see if we can resolve these issues and differences between us. So in every court, there is an opportunity which can be asked by either party or will be directed by the court that you have mediation before we get too far along in the appeal. With its appeal, that is the next step in the process.

00:39:00 Thank you. Deputy Mayor Stockwell: Just a further point. Is there any other mechanisms under the Planning and Environment Court Rules Act, any other mechanisms other than the single process of going to mediation in this court? Speaker 5: Well, counsel, other mediation is held with the court registrar. So the court appoints a mediator to mediate between the parties. So it is a formal process and there can be court orders that come out of the mediation. But there is also the opportunity of a without prejudice meeting between the two parties while we're in appeal and before the trial. The mediator doesn't attend, but nevertheless parties can discuss the matter, agree to discuss the matter themselves in confidence. So that can work as well. Deputy Mayor Stockwell: And last question. The terminology defending the appeal, does that mean that defending the appeal is saying

00:40:00 we are going to court or is it saying we recognise the appeals there and we'll enter into mediation without prejudice meeting? Speaker 5: Defending the appeal does not mean we're going to trial. There's a whole process to go through. So we do not have advice on prospects and that would be obtained before we end up in trial. We would get independent planning advice as well before we go to trial. If we were not in that trial, we would always come up with patterns first. Defending is simply a preface. If we choose not to defend this appeal, what happens is essentially the Tower is approved. The judge will give us time to impose conditions that those conditions cannot change once things are called for. So if we choose not to defend, that's what happens. The Tower is approved. There's no opportunity for negotiation or the like. Saying that, we don't have to decide to defend the appeal today.

00:41:00 That could be deferred for another point to allow councillors to feel comfortable with the decisions they're making today. Deputy Mayor Stockwell: And a final question. You've been here for a fair while. Has the Noosa Council ever resolved not to defend an appeal on a decision of the council? Speaker 5: No, I've never seen that occur. And I don't think it would occur for many other councils. It's a difficult situation. I understand that the council who decided it was a prior council. We have a new council. People are not fully across all the issues. I understand why we might want to have a look at it. Mayor Stewart: I think I'd like to speak promotionally. I think that is the point. The point is that we just need some more information. We're, I think, day 10 into it. And I think the whole point is to obtain as much information as we can and have the due diligence and the due process. And then make an informed decision. I don't think it in any way determines what we'll do. I think it's just all about gathering information.

00:42:00 Councillor Jurisevic: One final question. With regard to defending the appeal, following on from everything that Councillor Stockwell has asked, in the event that mediation doesn't resolve the issue, and the matter is to go before the courts, does the matter come before council again? Speaker 5: It would come before council again if we get advice about prospects that our prospects are for. So it would come back to council and advise council that our prospects are for. Throughout the appeal process, we're involved with also the case management working group. And I mentioned to council last week, which is monitored and helps to monitor the strategy around the appeal. That's because they don't need to . So, yes, we'll come back to council again if we get advice about prospects. Thank you. Or there's a proposed settlement on the table by the office. And that's the other question. We'll come back to council as well.

00:43:00 Thank you. If mediation comes to, you know, if we find some solutions, we'll come back to council. The only thing we need to do, sorry, the only thing we need to do with the council is, if we do not choose to defend in the field, we'll further get down the track here, and they come back and speak off against us, because they're dying to prepare their case. Thank you. Councillor Lorentson: Thank you, Kerry. I just want to reiterate that we... Question? Point of order. Excuse me. The council is talking to you. My question is, during the development application process, does council use mediation as a way to de-escalate or prevent these disputes from actually surfacing? Speaker 5: There's not a formal mediation process involved with DA. The Planning Act does not provide for it. Council does not have a formal process about that. I'm not quite sure how that would work for a development application, because we have,

00:44:00 we've received an application, and there's a process under the Planning Act that we're required to follow in reviewing the application. Throughout the process, though, there's opportunities for the parties to discuss the matter and ask further questions. There's a formal information request, which we made to the applicant. In this instance, we also spoke to the applicant during the decision period about our concerns thought, and put forward our concerns, and asked them to look at those issues. They came back and did reduce the challenge. It went down five minutes. But they didn't take anything from us. We were keen for them to find some other sites, because we thought this was a problematic site. So we got to the point where there was quite a lot of discussion with the applicant, but no agreement had been reviewed for it. So unfortunately, it does often take a situation where an appeal is lodged, and both parties are having to put forth some money that sometimes solutions to be found often fail. A lot of our appeals don't actually end up in trial.

45 minutes in ¶

00:45:00

00:45:00 Most get resolved in a day. Mayor Stewart: Kerry, I have a question. Just some conflicting information. On page 42 and 43 of the agenda, it says the Telecommunications Act 1997, enabling further extensions of up to five metres without further reference. And then it says extension of tower by up to seven metres in total on page 43. Is that seven metres including the antenna? Is that the differentiation? Speaker 5: Sorry, I've just missed what you said a little bit. Mayor Stewart: Sorry, it's just a differentiation by two metres. And I'm wondering if it's the seven metres you've got in brackets, including antenna and the like, so they have the ability to extend it without having to return to Council. Speaker 5: Yeah. Mayor Stewart: So if one side says five metres and one side says seven, does that seven is the differentiation in the antenna? It is. Correct. Thank you. That's my question. Thanks, Ray. Deputy Mayor Stockwell: I'll speak to the motion. Yeah, I'll never not vote to dependent appeal.

00:46:00 But at this stage, I accept on this particular application, there may be no great rush. I will support the motion, however, noting that the long list of requests within the movers' speech, some of them are standard practice and some of them would go to unnecessary costs for a small appeal such as this. So I wouldn't necessarily endorse that nature of approach. But in this case, on staff's advice, it is unlikely that a one-month deferral on this particular topic is unlikely to lead to any reduction in Council's position. I'm willing to support it. It must be made clear there is no opportunity to re-litigate the application. The decision's made. It's a decision of this Council. I represent this Council. Speaker 5: Thank you. Councillor Stewart. Councillor Lippman. Councillor Wilkie: Yeah, look, personally speaking, it's hard why me to always agree to resolve to defend

00:47:00 an appeal. Noosa Council has always done that. Every Council in Queensland does that. I take the point that unlike other town planning issues on the agenda, this one doesn't have a timeframe attached. And that I do appreciate. It can be a lot for new Councillors to take in and to understand the process. And I feel that if we do defer the decision to the next round when the report will come through perhaps the full committee system where it can be examined more fully, Councillors can ask more questions in the meantime of staff so they satisfy themselves that a fair and open process is abided by. I think that's entirely reasonable. And I want to give... There's got to be a grace period for new Councillors to get across a lot of this stuff. It's very complicated. And if they're wanting to satisfy themselves that they're making the right decision, that's fine. But for me personally, I will always resolve to defend an appeal.

00:48:00 Speaker 4: Thank you, Councillor Lippman. I've got another question for staff. Councillor Jurisevic: Given that proceedings are already underway, is there anything preventing staff from entering into mediation discussions at this point in time while a deferral may be on the table? Speaker 5: Well, the motion to defend the appeal reassures staff that you actually want us to spend time involved in the appeal. So it takes some time to prepare for mediation for council solicitors to look at it. So I guess there's that little bit of concern there. Where we're going with this one, we don't have a direction from council around whether we're going to defend the appeal or not. If there is, let us know. Speaker 2: Maybe just to add to that, Kerry, maybe another way of asking that question to clarify, there's no mediation or any court process planned for next month, is that right?

00:49:00 Speaker 5: No, there's none booked at this stage. Speaker 2: Absolutely. Councillor Jurisevic: So just to clarify, there'd be no impact in this deferral as proceedings haven't been underway at this date? Speaker 5: The court wants an appeal as lodged for order proceedings if nothing's happened in three months of an appeal. So the appeal would have been lodged within 20 days after the February meeting. So we'll start getting closer. Councillor Lorentson: Thanks, Kerry. To avoid the legal costs and... legal costs in implementing this mediation process, would it be more cost effective for council to organise a sophisticated person or mediator who could broker this deal without legal intervention? I'm just thinking of ways to unnecessarily spend public money. Is that an option?

00:50:00 Speaker 4: We're in a, we're in a legislative process now. Okay. So a decision's been made by the Noosa Council. And when a decision's made, in this case it's a refusal, the applicant has the right to appeal that decision within 20 days. They've done that, so they've exercised their right under the Planning Environment Court and the Planning Act of Queensland. So we're in a, we're in a legislative legal process at the moment. The court, as Kerry... talked about earlier, has a particular process that you go through before you get to appeal. One of that is, part of that is a mediated process. And there's a court mediator that is appointed to run that process. So that's an established process and a required process. You can, the applicant or the council can ask for mediation to be brought on earlier. And if it, so in some situations, we bring the mediation on earlier.

00:51:00 So to start the process, because the parties are pretty keen to get round the table. And in other cases, like Kerry just said, in this one, we haven't had any request for mediation at this point. But if that doesn't happen in three months' time, the court will require it. So once we're in this process, there's limited scope to require the other party to do a parallel process to that. They've exercised a right. They're using the planning environment court process to, you know, to go through mediation. Councillor Wilkie: So just to clarify for people who may be listening at home. We, the Noosa Council is technically in appeal already. And a legal process is underway. That's correct. The council are working on it. Thank you. Councillor Jurisevic: One further question that leads on from that then. What level of legal representation would council be expected to have at a mediation process?

00:52:00 Does mediation process have to be undertaken between staff and their representatives? Or do we have legal representation in that mediation process? Speaker 5: So with mediation, we have the option of who attends. It's not a decision. And that comes down to what sort of a field it is and the manager involved. With this one, I would expect that a council planning solicitor, like Rex looks like, would attend mediation. And be definitely involved. And also myself. So we will often, we will, before mediation, review the matter. And look at what options we might be able to put forward in mediation to conform to any of them. Alternatively, depending on the appeal, we may also get some experts involved. We may choose to get a second planning, a town planning opinion from an independent planner outside of council. To have a second review, a fresh review of the matter. And give advice to captain. So depending on the appeal is Penn's approach.

00:53:00 Councillor Jurisevic: Look, I'll speak to the motion. Look, I concur with the comments of Councillor Stockwell normally and Councillor Wilkie. Normally I would not look to defer a decision to defendant appeal. But given the circumstances of council being fairly fresh and the appreciation of new councillors want to get a better understanding. And that there being no impact upon the process in this being deferred for another month. I'm quite happy to support Councillor Lorentson's motion to defer the matter. Thank you, Councillor. Question. Councillor Wilkie: Question for you Kerry. You've been involved in town planning and Noosa for quite a while. How significant is the council's practice of defending appeals in its contribution to maintaining the look and feel of Noosa? Is that an unfair question, Mr Chair? Speaker 2: I actually think it's an unfair question. Getting into policy area. Mayor Stewart: I think we've all spoken to the motion.

00:54:00 Any more questions? Councillor Lorentson, right of reply? Councillor Lorentson: My right of reply is I just want to make it clear that I also agree that the Noosa plan must be defended. That if any developers don't comply to the requirements. The requirements are set out in the Noosa plan. And if a development application does not meet with community expectation, then yes, we must defend the Noosa plan. My concern is always have we exhausted other cost effective options? And that is my only concern. And I appreciate and thank the councillors for allowing the new councillors a little bit more time to exercise due diligence. And I appreciate and thank the councillors for allowing the new councillors a little bit more time to exercise due diligence. Mayor Stewart: Can I vote in the motion. All in favour? Speaker 2: Can't we all see the thank you? I'll go and get the two other councillors. Just wait before I get the other two back. I'm back. Going back in?

00:55:00 Yes. That's worth it. Thank you. . Mayor Stewart: The next item on the agenda is in relation to planning an Environment Court of Appeal number 765 of the 2020 relating to the refusal of an application for reconfiguring lots at Eney Creek Road, Noosaville, also known as the Civic Centre. We might have to move this to a closed session for legal reasons, so we'll put this on as the last item on the agenda for this afternoon. But for those watching at home, just be rest assured, I believe under the regulations, under section 275 specifically, no resolution will be passed in a closed session. It will just be a discussion. So, councillors, if we can look to number 6 on the agenda on page 51. Council meeting structure and timetables.

00:56:00 I'm moving a recommendation as printed in the agenda. And in paragraph B, I would, proposing the following councillors, Stockwell, Wegener and Finzel, for the Planning and Environment Committee, and councillors Jurisevic, Lorentzen and Wilkie, for the Services and Organisation Committee. I'm also proposing the following councillors for the chairperson's role as per paragraph C. For the General Committee, councillor Frank Wilkie, for the Planning and Environment Committee, councillor Brian Stockwell, and for the Services and Organisation Committee, councillor Joe Jurisevic. Can I call for a second there on that? I'll second that, Madam Chair. Speaker 5: Thank you. Mayor Stewart: Look, we've had a number of in-depth discussions in regard to this. In fact, we just had a round table prior to this meeting. Everyone's preferences were discussed and their interest areas put on the table. I think it's a really good balance. I think we've got talent on both sides. I think for the new councillors, it's a learning curve and we'll be guided by the councillors,

00:57:00 the experienced councillors, and I think the chairs are very experienced and well-versed in their areas of choice, and I think it's a good mix. So I think we came together again collaboratively in this decision-making, and so I think this is a very good structure going forward for this council. Thank you. Would anyone else like to speak to the motion? Speaker 5: No. Councillor Wilkie: Thank you. Thank you, Madam Chair, for your gracious comments. The other part to this resolution that we're agreeing to here is the structure. I'd like to compliment the councillors for opting for this particular committee structure, which is basically a three-phase process. Where items... Come in reports backed by council staff advice, financial, legal advice, town planning advice

00:58:00 for councillors to consider at an early stage in the committee, early committees. Those that are disagreed with or requires further discussion by the full council then go to the general committee council, committee meeting, which is the full council, for further discussion and questions. And then to the final ordinary meeting later that week for final ratification as a decision of the local government. It's a very open and transparent process. All the meetings are public. I also note in here that in the meantime, we've resolved to hold the planning and environment committee and the services and organisation committee meetings in this room, which will be live streamed because of the COVID precautions. And I'm hoping that perhaps I'm speaking personally here, that could continue as a long-term

00:59:00 practice if staff are comfortable with that and councillors agree to that. So I commend the councillors for their choice of meeting structure and thank the mayor again for endorsing the mayor's choice of the make-up of those various committees and chairs. Thank you. Councillor Jurisevic: I concur with those comments by Councillor Wilkie. I think the... Thank you. ...the chairperson here will be the one that gives the new councillors the best opportunity to get their heads around issues as they come forward with a greater time frame and an opportunity to understand at three different levels all the matters that come before us. I concur with the comments of the mayor as well with regard to, you know, utilising the strengths of the councillors, the experienced councillors. In the interim, being the chair versus those committees, but, again, the opportunity for councillors to move between committees, also the opportunity to sit in and be an observer