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City of Cockburn Meeting May 10

Posted: 7th May 2012

Please head along to the City of Cockburn meeting - this Thursday 10 May 2012 at 7pm. A number of recommendations will be made to Council on the Future of the Shacks and its Management.

Download the Agenda and Background

An Excerpt from the Agenda is below:

That Council:
(1) endorse the lease agreement as provided within the Attachment, specifically noting all the modifications to the draft lease agreement which was subject to community consultation;
(2) endorse the lease term as a single five year term only, at the agreed lease fee of $2,000.00 per annum with CPI increases annually. The lease fee to include rent, waste, community surveillance and emergency services levy;
(3) endorse the reduced demolition levy of $300.00 per annum fixed for two years, and following the fixed term to be increased annually by CPI;
(4) endorse the negotiation and preparation of a separate Commercial Lease for the Kiosk at Reserve 24308; and
(5) endorse the preparation of a Management Plan for Reserve 24308 which will include the following components for the future management of the Reserve:
1. The lease assignment process
2. Internal office procedures
3. Emergency management procedures
4. Site maps
5. Facilities management information
6. Detailed planning for infrastructure upgrades, including financial planning to ensure infrastructure upgrade costs are met through the lease fee and associated reserve funds.
(6) advertise the draft lease in accordance with section 3.58 of the Local Government Act.

At the Ordinary Council Meeting on 12 August 2010 Council determined to defer a decision on the future of the management of Reserve 24308 until further consultation had been conducted. This decision is provided following:
That Council:
(1) not endorse any draft preferred option regarding the future management of Reserve 24308 at this stage;
(2) prior to considering any future report regarding a preferred option for the future management of Reserve 24308, consultation be undertaken with the current lessees and the results of this consultation be given due regard in preparing a future report;
(3) the consultation with current lessees to involve the following aspects:

1. A formal letter being sent to all current lessees, setting out the potential options for the future management of Reserve 24308, inviting their comments. This being for a comment period of 42 days.
2. A public forum briefing being held at the City of Cockburn. This is to be held midway through the public consultation process, for the purpose of answering questions that may arise.
3. For the entire duration of the consultation, a specific page on the City’s website being established which includes details regarding the consultation.
In accordance with Council's decision the City has undertaken detailed consideration and consultation on the future of Reserve 24308. Key to this has been the development of a new lease agreement, which sets the cornerstone of the future management and upgrading of structures on Reserve 24308. The purpose of this report is for Council to consider adoption of the new lease agreement, and the endorsement of the preparation of a management plan for the Reserve going forward.
Future management of Reserve 24308 has been under consideration by the City over the last two years. The objective for improved management includes creating the right leasing framework for shack sites, which importantly supports the City's administration of shack structures and associated infrastructure. This report is focussed mostly on the consideration of the new leasing framework, which has been developed in a collaborative way via the Naval Base Shacks Community Reference Group ("NBSCRG") and recently advertising to all shack lessees.
Site Description
Reserve 24308 is located at Lot 373 Cockburn Road, Henderson and consists of an area of 4.5468ha. It has 178 shacks located on it, but with little uniformity in shack positioning, design and current built condition.
Reserve 24308 has a sound internal road system that permits vehicle movement at restricted speed, with adequately installed speed reduction devices (speed humps). Reserve 24308 also contains two common user ablution facilities, which were constructed by the City for

use by shack lessees. The ablution facilities have mains electricity and a potable water supply.
A potable water supply for shack lessees is provided through the strategic location of water taps within Reserve 24308, with connection via a hose system. The shacks do not have access to other utilities, such as mains electricity, reticulated gas or sewer. The majority of shacks have been fitted with bottled gas, and generate their own electricity supply through mechanisms such as solar panels, small wind turbines and power inverters. There exists no regulatory framework around such infrastructure to date.
A shack at the entrance to Reserve 24308 has been converted into a small shop. The shop is connected to mains power and reticulated water with its own individual meter for each.
History of Reserve 24308
Anecdotal records from the City indicate that parts of the area, now represented by Reserves 24308 and 24309, were used as an informal camping ground possibly as early as 1933. Historically, Reserves 24308 and 24309 were created and set aside for the purposes of public utility in 1955, following transfer of the land from the Commonwealth. The original vesting of Reserves 24308 and 24309 to the Cockburn Roads Board was approved by the Executive Council and granted on 10 July 1957 for the purposes of recreation and camping. The Vesting Order for Reserve 24309 contained the power to lease. The Executive Council also designated Reserves 24308 and 24309 as A Class reserves at the same time.
Original structures placed on the land consisted of caravans with annexes. Over time the structures have become more permanent in nature and no longer represent a caravan with a soft or rigid annexe.
The Reserve was originally managed as a Caravan Park, with a register of City of Cockburn residents being allocated a site each time a lessee rescinded their lease. It has now evolved into exclusive holiday accommodation with the sites and structures being sold on the open market and the number of City of Cockburn Ratepayers reducing to less than 30% of the current lessees.
Current Tenure of the Land
Part 4 of the Land Administration Act 1997 provides the legislative basis for the creation, management, amendment and cancellation of reserves of Crown land. A reserve represents Crown land which has been set aside or dedicated for a particular purpose in the public interest. There are hundreds of reserve purposes utilised across the State, recognising
the diverse role and function which reserves have to perform in the public interest. The purpose of Reserve 24308 is 'Recreation and Camping'.
In terms of management, once a reserve is created it is placed under the care, control and management of a State Government department, Local Government or incorporated community group by way of a Management Order registered against the relevant parcel of Crown land and endorsed on the Certificate of Land Tenure. In terms of Reserve 24308, a Management Order exists with the City which includes a power to lease for up to 21 years. The Management Order does however limit use to being consistent with the reserve purpose ('Recreation and Camping'), with all leases subject to the Minister for Lands approval.
In addition to the reserve purpose and Management Order requirements, Reserve 24308 is also classified as an A Class reserve which affords the greatest degree of protection under the Land Administration Act 1997. In terms of historical appreciation, the Land Act 1933 provided for reserves of Crown land to be classified as Class A, B or C reserves. This approach was extinguished under the Land Administration Act 1997, with a new approach in the form of classifying all reserves as one and the same - but keeping the notion of A Class reserves which would continue to be classified separately representing their importance and need for high level protection. Any proposal to undertake a major amendment to an A Class reserve, including modifying a reserve purpose, can only take place by tabling the proposal in both Houses of Parliament in accordance with Section 43 of the Land Administration Act 1997.
State Government Position
On 29 April 1999 the then Minister for Lands (Hon Doug Shave MLA) advised the City that the ―leases are only an interim measure, which the State has accepted, to recognise the existence of the shacks until such time as the situation is rectified‖. In further correspondence dated 26 April 2001, it was stated that the then Department of Land Administration ―would prefer a policy that allowed for replacement of existing structures, rather than one that encouraged expansion or major development. This would ensure that lessees were under no misapprehension that their tenure is both short term and finite.‖
This position of the State Government has evolved to the point that the State Government acknowledges the use of Reserve 24308 consistent with its current use. This is most clearly acknowledged by the recent Legislative Council Environment and Public Affairs Committee's Inquiry into Shack Sites in Western Australia. The Committee finalised their report in April 2011 and below is an extract relevant to Naval Base

Shacks. Naval Base features three specific findings of the Committee (Findings 49 to 51), but with no specific recommendations given. Accordingly, the findings provide a useful indication as to the Committee's views for Reserve 24308.
The Committee noted particularly the collaborative process which the City was working through in determining an appropriate shack standard and a new management approach. The Committee suggested this to be a logical next step into a new management plan for the Reserve:
10.44 A distinguishing difference between this site and other shack sites is that Naval Base is the only shack site located within metropolitan Perth. Also, unlike a number of other sites, the shacks are arranged in a reasonably ordered manner (compared to the ad hoc nature of other sites) on a heavily bituminised area.
10.45 The Committee note that the leasehold tenure at this site differs from sites such as Peaceful Bay and Dampier Archipelago. Although the City has renewed the shack leases annually, there is no obligation to do so and, under the terms of the lease, the lease may be cancelled with 14 days notice. The Naval Base lease does not set building or health standards or provide for an increase in standards. Unlike other shack sites, the City has not established any management plan or strategy for the site. The Council provides basic facilities at the site.
10.47 The Committee accepts that there is social heritage at Naval Base, formed by people and families sharing the experience of staying at this site and enjoying the experiences this site offers.
10.49 If shacks are to remain, the City of Cockburn should develop a management plan which may incorporate short term holiday accommodation as an option for the public.
Finding 49: The Committee finds that the City of Cockburn manages 178 shacks at Naval Base. This reserve was vested in the City of Cockburn decades prior to the Squatter Policy. The shacks are leased for a period of one year. To date, the City of Cockburn has offered a lease each year.
Finding 50: The Committee finds that the City of Cockburn is currently undertaking a public consultation process to consider the future of Naval Base, including whether to remove the shacks and bring the vested reserve under the Caravan Parks and Camping Grounds Act 1995. The Council will consider the results of the public consultation and deliberate on this issue in due course.
Finding 51: The Committee finds that the City of Cockburn should continue to manage the process, including community consultation, they are presently undertaking to determine the future of Naval Base.
To provide the City with a clear and concise document that will enable the future of the Naval Base Shacks Reserve 24308 to be managed effectively, a new lease agreement has been formed. This provides the cornerstone to lead to broad improvements in both the regulatory management of shacks and standards of shacks. This new lease agreement, which has been subject to extensive consultation, is a key recommendation to Council in this report.
As specified in Recommendation 10.45 the Committee identified the need for the formal preparation of a Management Plan as the logical next step in improving the Reserve. Once the formal lease agreement becomes operational, the management plan will be able to complement critical operational matters for the Reserve including:
(a) The lease assignment process;
(b) Internal office procedures;
(c) Emergency management procedures;
(d) Site maps;
(e) Facilities management information;
(f) Detailed planning for infrastructure upgrades, including financial planning to ensure infrastructure upgrade costs are met through the lease fee and associated reserve funds.
City of Cockburn Local Government Inventory
The City resolved on 20 April 2004 to insert the Naval Base Caravan Park into the second volume of the City‟s Municipal Heritage Inventory as Place No. 67. This has recently been updated as part of the City's 2011 Local Government Inventory, which is the new name of the Municipal Heritage Inventory. As part of this, Reserve 24308 is now identified as a Heritage Area. This reflects the unique characteristics of the area in totality, and something that requires comprehensive responses to protect the values of the Heritage Area.
The Draft Local Heritage Policy which supports the Heritage Area designation under the Scheme has been prepared for Reserve 24308. This was advertised widely to all shack lessees, with a number of submissions having been received. Finalisation of the Draft Local Heritage Policy will be presented to the next DAPPS Committee Meeting of Council.
Defining the City‟s Regulatory Responsibilities
The City's responsibilities broadly fall into the following two categories:
1. Regulatory (i.e. planning, building and health); and
2. Property management (leasing).
In terms of building regulation, there is now the requirement for Building Permits to be issued for building at Reserve 24308, following the commencement of the new Building Act 2011. This will require the application of the regulatory standards of the Building Code of Australia as part of building works at the Reserve. The City's Building Services team are responsible for this process.
From a planning viewpoint, the subject land is reserved as 'Parks and Recreation' under the Metropolitan Region Scheme ("MRS"). This triggers an application and assessment process to be undertaken under the MRS (as opposed to under City of Cockburn Town Planning Scheme No. 3), with the decision making responsibilities being with the Western Australian Planning Commission ("WAPC"). Applications will still be made to the City (Statutory Planning division), who will also be able to provide a recommendation of the applications to the WAPC.
Public health involvement is largely under the auspices of the Health Act 1911. This now involves annual inspections of shacks, to consider the standard of each shack and to report any upgrading requirements that need urgent action. The City's Property and Lands Officer follows through to require this work to be undertaken.
The new lease agreement will also support the City in its property management functions at the reserve. The new lease agreement does involvement a wide variety of regulatory requirements, which will be administered to ensure the reserve is appropriately managed.
Community Consultation
Following the Council‟s Decision of 12 August 2011, the City commenced the consultation process by sending a letter to all Naval Base Shack Lessees advising of its determination. A specific web page was set up on the Council's website, and information was advertised in the Soundings Newsletter. The City organised a public meeting which was held on 25 October 2010 at which the City advised that it would look to establish a Community Reference Group early in 2011.
The City asked for nominations from the Lessees for the Naval Base Shacks Community Reference Group ("NBSCRG") of the nominations received six lessees were appointed to the NBSCRG along with five City of Cockburn Officers and two Elected Members
The purpose of the NBSCRG was to formulate a new draft lease based on consultation with the lessees of the Naval Base shacks. The first
meeting was held on 15 February 2011 and was chaired by Cr Houwen.
The NBSCRG held monthly meetings and the first draft of the lease was finalised in December 2011. This draft was then sent to all lessees on the 6 January 2012, providing them with 60 days to submit their comments. The submissions received are detailed in the table attached at Attachment 2.
It is evident that a variety of issues, concerns and general feedback was provided through the advertising of the draft lease. While Attachment 2 details each specific point made in each specific submission, and how Officers have responded to these and formed a set of amendments to the draft lease agreement as per Attachment 1, it is important to highlight some of the key themes that came through the submissions. These are detailed and discussed following:
Submission – Involvement of the NBHA in preparation of a Management Plan for the Park and consultation with Lessees regarding the management plan before it is adopted by Council.
Response – All lessees will have the opportunity to comment on the proposed Management Plan prior to the plan being submitted to Council for adoption. It is expected that input into the preparation of the Management Plan will be via the NBSCRG.
Submission – Clause 7.2 Insurance. Request the City's assistance in identifying appropriate insurance providers with terms and costs which are reasonable and acceptable to Lessees to ensure this obligation to obtain insurance is achievable and affordable.
Response – The City currently has public liability insurance for areas surrounding the shacks however this will not cover any incident which occurs within or as a result of a shack. It is not the City’s responsibility to take out insurance for privately leased sites. Members of the NBHA have advised that some insurance companies are prepared to cover for both Public Liability and Building insurance.
Submission – Clause 12.2 Short Term Accommodation Only. The allowing of 3-4 people located throughout the park who meet certain criteria to live permanently in the park so they can act as caretakers and provide a level of security which is important to us. We support the involvement of the NBHA in identifying the criteria for these positions and to assist in the selection of relevant people.
Why only 120 days. What is the reasoning, it is related to Kwinana, what info has it been based upon?
Response – Kwinana is the State’s major heavy industrial area. Many of these industries are located in Kwinana because they are potentially dangerous and they could not be located anywhere else in/near Perth. The recommended (by EPA) buffer from residences to a typical heavy industry is 1km to 5km. This is to provide protection to the residents by ensuring that any emissions are able to be diluted in the atmosphere before they reach the residential areas. It is also to provide some protection to these major industries of state and sometimes national significance so that they are not required to invest significant funds in excessive emission control and operational safety systems. The City's requirement is that the Shack is to be used for 120 days in any year no matter who is staying in the shack. The City is not supportive of some lessees using their shack for longer than 120 days in any year whatsoever, based on public health reasons.
Submission – Clause 12.6 Use of Generators. The ability to use generators during daylight hours. Such as 8am to 8pm and provided they do not exceed a maximum decibel level.
Response – The restriction on the generators was agreed to during the negotiations with the NBSCRG. It was recommended by the group that the noise level was intolerable due to the close proximity of the shacks. It is not the view of officers that generators be permitted at the Reserve (note requirements in the lease on this point).
Submission – The inclusion of an option for a further term of 5 years on the lease.
Response – The current proposed lease whilst providing some short term certainty also allows the City to look at further improvements to the Reserve as it develops an improved management structure over the next five years. The increase in current lease periods from 12 months to five years is a significant increase, and no option period is considered to be appropriate given the nature of the shacks as an informal, low key area. The granting of exclusive lease rights of up to ten years is considered to create unrealistic expectations about how the reserve will function into the future.
Submission – Clause 5.2 Removal Bond. The reduction in the annual cost of the removal bond to a maximum of$100 a year and the return of the bond to Lessees upon sale of their lease.
Response - The introduction of the demolition levy in 2010/11 was to cover the City in the case where a shack had to be removed and the leaseholder either did not want to pay or could not pay for its removal. The figure of $600 was based on quotes from reputable demolition service providers to remove the shack and dispose of the material in a regulated Landfill Facility (including asbestos costs). The City has agreed to quarantine these funds so that in the eventuality the shack is removed by the relevant leaseholder and at their cost, the leaseholder would receive the funds back plus interest. This was implemented so that the City would not have to resort to expensive civil litigation to recover any outstanding debt. The issue of recovery in the Courts of unpaid demolition levies is very expensive and one that a litigant rarely recovers their costs or in a lot of instances the actual debt. The City is attempting to ensure that ratepayers will not have to incur legal costs unnecessarily. The recommended charge for the demolition levy effective 1 September 2012 will be decreased to $300.00. This fee will be fixed for the first two years, with CPI increases following.
Submission - Request a clear Explanation of our lease fee, and how it is made up, in ref to Lease, Bond, and Rubbish removal. FESA, & Maintenance. Please note at this stage we are paying allot more for rubbish removal without having any bins supplied than that of my residential address in the Cockburn District.
Response - The Lease fee was based on an independent property valuation. The site rental charges for 2011/12 and 2010/11 are the same being $21.80 per week. At the June 2011 Council budget meeting, the site rental fee was fixed at the same rate at 2010/11. This was done in context that a new lease was being discussed between the Council and the Community Reference Group. The original intention was to increase the site rental fee over three years to coincide with the valuation. As part of the new lease, Council officers will recommend an all inclusive fee (excluding the demolition levy), which for the 2012/13 will be $2,000 per annum. This fee will include rent, waste, emergency services levy and community surveillance levy. The City has agreed to use the funds raised by the lease fees, net of any running costs for the facility, for the capital improvements required at the facility. The demolition levy funds are not included in this general undertaking and have been put in a separate reserve.
As a result of the public consultation a number of modifications to the draft lease are recommended to Council. The proposed amendments are highlighted as “track changes” in Attachment 1.
The establishment of a more robust lease agreement will provide the City with a clear and concise document that has been established through working collaboratively with representatives of the NBSCRG and consultation with lessees through the group.
The current Memorandum of Agreement provided only a one year term this has been extended in the new draft lease with a five year term which provides the lessees with security of tenure for this period. It is not recommended that any option period be granted in the lease, as the logistics of administering the leases internally would be made very difficult as some lessees would take up the option and other lessees would decline. At the end of the five year term, the City will be in a position to review what has been upgraded, the standard of the facilities and shacks at the Reserve prior to considering new leases.
Facilities at Reserve 24308 will be planned for upgrading during the five year lease term, which will include investigations into reticulated water connection and soakwells to each shack, an investigation into connection of electricity and further upgrades to the facilities at the Reserve. This however needs to be appropriately prepared through the new Management Plan for the Reserve.
With the introduction of the new Building Act 2011 any new structures will be subject to approval by the City‟s Building Department which will enable the City to bring new structures under the control of this new legislation and will reduce the risk to public safety and the City in the future.
The City‟s Health Department has now undertaken external inspections of each shack and some Lessees have completed renovations to improve the safety standards of the shacks. The City‟s Health Department will continue to monitor the safety aspects of the shacks by inspecting them on an annual basis.
It is proposed that a Management Plan be prepared which will encourage the creation of a structured plan for the management of the Reserve that proactively tackles (or manages) the whole Reserve including the City's regulatory and 'management' roles together with associated risks identified to date and which may occur in the future. The preparation of a Management Plan for the Reserve was a key finding made by the Environment and Public Affairs Committee Inquiry into Shack Sites in Western Australia.
It is therefore recommended to Council to endorse a new lease agreement for the reserve, and the various associated actions contained in the officer's recommendation.
Strategic Plan/Policy Implications
Demographic Planning
• To ensure development will enhance the levels of amenity currently enjoyed by the community.
Infrastructure Development
• To provide an appropriate range of recreation areas that meets the needs of all age groups within the community.
Lifestyle and Aspiration Achievement
• To facilitate and provide an optimum range of community services and events.
Budget/Financial Implications
The new lease fee is constructed in a way to reflect the value of shack leases based on two external valuations. The income from the lease fee and the special demolition levy are to be quarantined into two specific reserves respectively. The lease fee is to fund the operating costs as well as the capital expenditure program. The special demolition fee is to fund future removal of a shack should a lessee fail to do so. If a lessee removes a shack in accordance with their lease the full amount of the levy will be refunded to them, on completion of the removal, including interest accumulated on the levy.
178 Shacks @ Lease Fee $2,000 = $356,000.00.
178 Shacks @ Demolition Levy $300.00 = $53,400.00
Legal Implications
Land Administration Act 1997
Property Law Act 1969
Building Act 2011
Health Act 1911
Planning and Development Act 2005
Council has to advertise all of the Naval Base Leases including the names of the lessees in accordance with Section 3.58 of the Local Government Act. Subject to no objections being received following the advertising of the leases under Section 3.58 of the Local Government Act Council endorse the draft lease otherwise a report to council will be submitted with stated objections
Community Consultation
In accordance with Council's previous decision, the City has undertaken the following consultation:
a) advertising in the City of Cockburn Soundings Newsletter;
b) establishing a specific page on the City of Cockburn website;
c) a letter was sent to all Naval Base Shack Lessees;
d) a public meeting was held on 25 October 2011;
e) a Community Reference Group was established to prepare a draft lease; and
f) January 6 2012 the draft lease was forwarded to all lessees providing them with 60 days to comment.
The culmination of advertising and responses to the draft lease agreement are contained in Attachment 2, and the recommended changes to the draft lease agreement are identified in Attachment 1.
1. Draft Lease Agreement Showing Changes
2. Schedule of Submissions
3. Site Plan
4. Copy of Management Order
Advice to Proponent(s)/Submissioners
All Submissioners have been advised that the report will be presented to Council at its Ordinary Council meeting 10 May 2012.
Implications of Section 3.18(3) Local Government Act, 1995