Minutes of Ordinary Meeting of Council

Minute Ku-ring-gai Council Page

MINUTES OF Ordinary Meeting of Council
HELD ON Tuesday, 8 May 2018

Present:

The Mayor, Councillor J Anderson (Chairperson)

Councillor C Clarke (Comenarra Ward)

Councillors C Szatow & P Kelly (Gordon Ward)

Councillors S Ngai (Roseville Ward)

Councillors D Citer & M Smith (St Ives Ward)

Councillors D Greenfield & C Spencer (Wahroonga Ward)

Staff Present:

General Manager (John McKee)

Director Corporate (David Marshall)

Director Development & Regulation (Michael Miocic)

Acting Director Operations (Matthew Drago)

Director Strategy & Environment (Andrew Watson)

Director Community (Janice Bevan)

Corporate Lawyer (Jamie Taylor)

Manager Finance (Angela Apostol)

Manager Integrated Planning, Property & Assets (Deborah Silva)

Manager Urban & Heritage Planning (Antony Fabbro)

Manager Strategic Projects (Ian Dreghorn)

Acting Manager Corporate Communications (William Adames)

Project Manager – Major Projects (Nicole Gerschel)

Management Consultant (Craig Calder)

Landscape Planner (Lino Querin)

Manager Records and Governance (Amber Moloney)

Minutes Secretary (Christine Dunand)

The Meeting commenced at 7:04 pm

The Mayor offered the Prayer

Apologies

File: S02194

Councillor Jeff Pettett tendered an apology for non-attendance (leave) and requested leave of absence.

Resolved:

(Moved: Councillors Spencer/Ngai)

That the apology from Councillor Pettett be accepted and leave of absence granted.

CARRIED UNANIMOUSLY

The General Manager averted to a staff apology, Director Operations is on leave and Mr Drago would be acting on his behalf.

DECLARATIONS OF INTEREST

The Mayor adverted to the necessity for Councillors and staff to declare a Pecuniary Interest/Conflict of Interest in any item on the Business Paper.

In relation to NM.1 Lindfield Library, Library Village Hub and Asset Recycling to Meet Community Needs - Councillor David Citer declared a less than significant non-pecuniary conflict of interest as he was the manager of Ku-ring-gai Youth Development Service (KYDS) from 2007 – 2014 when he occupied an office at the Lindfield Library. He has not held this position, or an office in the building, for four (4) years. He has no conflict of interest on voting on this item and will remain in the chamber during debate.

In relation to NM.1 Lindfield Library, Library Village Hub and Asset Recycling to Meet Community Needs - Councillor Sam Ngai declared a less than significant non-pecuniary conflict of interest as he is one of Council’s two (2) representative on the Ku-ring-gai Youth Development Service (KYDS) board, with KYDS being a tenant at 265 Pacific Highway Lindfield. The role was bestowed on him by Council and he will remain in the chamber during debate.

In relation to NM.1 Lindfield Library, Library Village Hub and Asset Recycling to Meet Community Needs - Councillor Callum Clarke declared a less than significant non-pecuniary conflict of interest as he is one of Council’s two (2) representative on the Ku-ring-gai Youth Development Service (KYDS) board, with KYDS being a tenant at 265 Pacific Highway Lindfield, and will remain in the chamber during debate.

Confirmation of Reports to be Considered in Closed Council

File: S02131

Vide: BN.1

In accordance with the provisions of Section 10 of the Local Government Act 1993, all officers’ reports be released to the press and public, with the exception of confidential attachments to the following General Business reports:

GB.14 RFT 10-2018 HVAC Upgrades – Gordon Library

Attachment A1: ............ Tender Assessment Report and Recommendations

Attachment A2: ............ Additional Financial Statement

Attachment A3: Independent Performance and Financial Assessment

These attachments are classified confidential under section 10A(2)(d)(iii) because it would reveal a trade secret

Resolved:

(Moved: Councillors Clarke/Smith)

That in accordance with the provisions of Section 10 of the Local Government Act 1993, all officers’ reports be released to the press and public, with the exception of confidential attachments to the following General Business reports:

GB.14 RFT 10-2018 HVAC Upgrades – Gordon Library

Attachment A1: ............ Tender Assessment Report and Recommendations

Attachment A2: ............ Additional Financial Statement

Attachment A3: Independent Performance and Financial Assessmen t

These attachments are classified confidential under section 10A(2)(d)(iii) because it would reveal a trade secret.

CARRIED UNANIMOUSLY

Address the Council

The following members of the public addressed Council on items not on the agenda:

Janet Harwood Good People

Sabina Grewal On behalf of Support Lindfield

Richard Vowell On behalf of Support Lindfield

Gerard Hosier Lindfield Walkway

DOCUMENTS CIRCULATED TO COUNCILLORS

The Mayor adverted to the documents circulated in the Councillors’ papers and advised that the following matters would be dealt with at the appropriate time during the meeting:

Councillors Information:

PT.1 Petition for Footpath Maintenance along Pentecost Avenue Pymble to Mona Vale

Confidential Memorandum from Team Leader Governance dated 26 April 2018 with a copy of the original petition.

Ku-ring-gai Fitness and Aquatic Centre – Legal Proceedings Update Confidential Memo from Director Strategy & Environment dated 3 May 2018

Late Councillor Agenda Information:

GB.8 Consideration of submissions on planning proposal for several heritage conservation areas in Wahroonga, Turramurra, Pymble and Gordon

Memorandum from Manager Urban and Heritage Planning dated 8 May 2018 advising 2 errors in the report.

CONFIRMATION OF MINUTEs

Minutes of Ordinary Meeting of Council

File: S02131

Meeting held 10 April 2018

Minutes numbered 76 to 95

Resolved:

(Moved: Councillors Clarke/Greenfield)

That Minutes numbered 76 to 95 circulated to Councillors were taken as read and confirmed as an accurate record of the proceedings of the Meeting.

CARRIED UNANIMOUSLY

minutes from the Mayor

Ku-ring-gai Council staff's major breakthrough on swimming pool safety

File: CY00133/10

Vide: MM.1

I wish to advise my Councillor colleagues and the Ku-ring-gai community of a successful investigation by our compliance staff concerning public safety and backyard swimming pools.

This has ultimately led to a voluntary recall by the Australian Competition and Consumer Commission (ACCC) of over 90,000 swimming pool gate latches sold across Australia. The faulty gate latches are:

• SafeTech Top Pull Gate Latch (Key Lockable)

• G8Safe Top Pull Gate Latch (Key Lockable)

• SafeTech TriLatch (Key Lockable)

• G8Safe TriLatch (Key Lockable)

The latches are also available as part of the following kits:

• SafeTech Trade Packs (Key Lockable)

• G8Safe MegaPack (Key Lockable)

More information about the voluntary recall is available at www.accc.gov.au

The background to this investigation is lengthy and complex, but is testament to the tenacity and investigative skills of our compliance staff, who identified a major flaw in the latch system in these two types of backyard swimming pool gates. The latch fault exists on gates which have an optional key locking system and allows the gate to appear locked when it is actually open.

Once our staff had established without doubt that the two types of swimming pool gate posed a major risk to children’s safety, they alerted NSW Fair Trading. A detailed investigation was subsequently conducted and this has led to the voluntary recall.

Drowning in backyard swimming pools is a leading cause of preventable death in children under five years. Statistics by the NSW Child Death Review Team reveal that a significant number of drownings occur as a result of a young child accessing a pool via a faulty gate. The annual drowning report prepared by Royal Life Saving Society in 2017 reveals that an average of 15 young children die each year in backyard swimming pools.

Those who believe they may have any of these latches on their gate should contact the supplier to arrange for a refund on the latch they have purchased. They should also arrange to have the gate latch replaced as quickly as possible. Ku-ring-gai has 15,161 swimming pools on the NSW swimming pool register and there will be pool owners in our community who will need to replace these gate latches.

I wish to pay tribute to and congratulate the staff involved in this investigation, particularly our specialist compliance staff responsible for swimming pool safety, whose diligence and persistence has played a major role in averting an alarming public safety issue. This recall acts as a timely reminder for all pool owners to check their pool gates to ensure they self-close from any position. We recommend that gate checks be carried out regularly as part of ongoing pool maintenance. Residents can also arrange an inspection of their swimming pool by contacting the Council’s customer service team on 9424 0000.

Resolved:

That this Mayoral Minute be received and noted.

CARRIED UNANIMOUSLY

PETITIONS

100

Petition for Footpath Maintenance along Pentecost Avenue Pymble to Mona Vale Road

File: 88/05929/01

Vide: PT.1

‘We, the undersigned petition the Council to inspect and repair the footpath from 39B Pentecost Avenue Pymble to Mona Vale Road to eliminate any risk of injury. (Twenty nine [29] signatures).’

I hereby request that all of the footpath be examined, paying particular attention to the stretch from 39B Pentecost Avenue Pymble, where the garden overgrowth is causing the footpath to be even narrower especially compared to further down e.g. in front of 55 Pentecost Avenue.

Other sections in this strip have been patched with bitumen and there are badly cracked driveways making it particularly difficult for residents in wheelchairs to access St Ives Village.

For the purposes of publication some text has been omitted from the wording of this petition, as it contains personal and health information as defined by the Health Records and Information Privacy Act 2002.

Resolved:

(Moved: Councillors Citer/Spencer)

That the petition be received and referred to the appropriate Officer of Council for attention.

CARRIED UNANIMOUSLY

101

Save the Marian Street Theatre

File: S10577/3

Vide: PT.2

Petition presented by Councillor David Citer.

“We ask that Ku-ring-gai Municipal Council:

1. Commit immediately to the preservation of the Marian Street Theatre

2. Authorise the voluntary “Save the Marian Street Theatre” committee to begin raising the funds to reopen the theatre as a sustainable cultural hub, guaranteeing that all funds raised go towards Marian Street Theatre.

(One thousand, six hundred and seventy one [1,671] signatures and two thousand, two hundred and forty-eight [2,248] names submitted to an online petition platform, totalling three thousand, nine hundred and nineteen [3,919] submissions)

Resolved:

(Moved: Councillors Citer/Spencer)

That the petition be received and referred to the appropriate Officer of Council for attention.

CARRIED UNANIMOUSLY

GENERAL BUSINESS

102

Draft Community Strategic Plan 2038

File: S11275

Vide: GB.1

To place Council's draft Community Strategic Plan ‘Our Ku‑ring-gai 2038’ on public exhibition.

Resolved:

(Moved: Councillors Citer/Clarke)

A. That the report on the draft Community Strategic Plan ‘Our Ku-ring-gai 2038’, be received and noted.

B. That pursuant to Section 402 of the Local Government Act, 1993, the draft Community Strategic Plan ‘Our Ku-ring-gai 2038’, be endorsed and placed on public exhibition for a minimum period of 28 days commencing Friday, 11 May 2018.

C. That the draft Community Strategic Plan ‘Our Ku-ring-gai 2038’, be forwarded to relevant NSW Government agencies as part of the public exhibition process.

D. That following public exhibition, a further report be submitted to Council for the adoption of the Community Strategic Plan ‘Our Ku-ring-gai 2038’.

CARRIED UNANIMOUSLY

103

Easy to do Business program

File: S11862

Vide: GB.4

To provide Councillors with background information about the Easy to do Business program, and to seek Councillor support to enter into an agreement with Service NSW for the Easy to do Business program.

Resolved:

(Moved: Councillors Citer/Clarke)

A. That Council delegate authority to the General Manager to enter into a contract with Service NSW for the Easy to do Business initiative.

B. That Council delegate authority to the Mayor and General Manager to execute any necessary documents under the Common Seal of Council.

CARRIED UNANIMOUSLY

104

Management of Community and Recreation Facilities Policy

File: S07306/2

Vide: GB.5

To provide Council with the draft Management of Community and Recreation Facilities Policy following review and update, and to seek Council approval to place the updated draft policy on public exhibition.

Resolved:

(Moved: Councillors Citer/Greenfield)

A. That Council endorse the draft Policy for Management of Community and Recreation Facilities and approve the draft policy for public exhibition for a period of 28 days in accordance with the requirements of the Local Government Act, 1993.

B. That a further report be presented to Council following the public exhibition process.

CARRIED UNANIMOUSLY

105

Investment Report as at 31 March 2018

File: S05273

Vide: GB.6

To present Council’s investment portfolio performance for March 2018.

Resolved:

(Moved: Councillors Citer/Greenfield)

A. That the summary of investments and performance for March 2018 be received and noted.

B. That the Certificate of the Responsible Accounting Officer be noted and the report adopted.

CARRIED UNANIMOUSLY

106

Keep Australia Beautiful NSW Annual Fundraising Dinner 2018

File: CY00043/10

Vide: GB.7

To advise Council of an invitation from Keep Australia Beautiful NSW to purchase tickets for their annual fundraising dinner, to be held at Strangers Dining Room, Parliament House on Wednesday 23 May 2018.

Resolved:

(Moved: Councillors Citer/Clarke)

That Council purchase tickets to the Keep Australia Beautiful NSW annual fundraising dinner and interested Councillors contact the General Manager to arrange.

CARRIED UNANIMOUSLY

107

Rezoning 47 Warrane Road, Roseville Chase (former East Roseville Bowling Club)

File: S09742

Vide: GB.9

To have Council consider a Planning Proposal to rezone the former East Roseville Bowling Club at 47 Warrane Road, Roseville Chase to permit R3 Medium Density Residential development.

Resolved:

(Moved: Councillors Citer/Clarke)

A. That a Planning Proposal be prepared in accordance the Environmental Planning and Assessment Act 1979 to amend the Ku-ring-gai Local Environmental Plan 2015 to rezone 47 Warrane Road, Roseville Chase from RE1 Public Recreation to R3 Medium Density Residential and apply floor space ratio development standard of 0.8:1, height of buildings of 11.5m and minimum lot size of 1200sqm.

B. That the Planning Proposal be submitted to the Department of Planning and Environment for Gateway Determination in accordance with Section 3.34 of the Environmental Planning and Assessment Act 1979.

C. That upon receipt of a Gateway Determination, the exhibition and consultation process is carried out in accordance with the requirements of the Environmental Planning and Assessment Act 1979 and the Gateway Determination.

D. That a report be brought back to Council at the end of the exhibition process.

CARRIED UNANIMOUSLY

108

Reclassification and Rezoning - 4 Pennant Avenue, Gordon - former Gordon Bowling Club

File: S11955

Vide: GB.10

To have Council consider a Planning Proposal to reclassify and rezone 4 Pennant Avenue, Gordon, the site of the former Gordon Bowling Club.

Resolved:

(Moved: Councillors Citer/Szatow)

A. That a Planning Proposal be prepared in accordance with Section 3.33 of the Environmental Planning and Assessment Act 1979 to amend the Ku-ring-gai Local Environmental Plan 2015 for part of 4 Pennant Avenue, Gordon being Lot Y DP387680 to:

1. rezone Lot Y DP387680 from RE1 Public Recreation to R3 Medium Density Residential;

2. apply floor space ratio development standard of 0.8:1, height of buildings of 11.5m and minimum lot size of 1200sqm;

3. reclassify Lot Y DP387680 from ‘community land’ to ‘operational land’ and formally seek to extinguish all necessary interests that apply to the land.

D. Public access being maintained through to Bushlands Avenue..

E. That a report be brought back to Council at the end of the exhibition process.

CARRIED UNANIMOUSLY

109

NSW Department of Education - Joint Use Project Proposal - St Ives High School Indoor Sports Centre

File: S03899

Vide: GB.12

To update Council on discussions and “in-principle” support with the NSW Department of Education (DoE) on the Joint Use Project Proposal for community use of the school facilities at St Ives High School. Included in this report are the findings of the St Ives High School Indoor Sports Centre Feasibility Study which supports the demand and financial sustainability of the project. An Advocacy Strategy has also been provided to assist in the financial delivery of the project.

Resolved:

(Moved: Councillors Citer/Spencer)

That Council:

A. Continues its “in principle’ support for the Joint Use Project proposal for the indoor sports centre at St Ives High School subject to funding becoming available and further design development.

B. Notes that funding will be required in the 2020 and 2021 financial years.

C. Investigates all funding sources available to contribute towards the project.

D. Endorses the advocacy strategy which will endeavour to drive funding for the project through stakeholders and key sources.

CARRIED UNANIMOUSLY

110

Bushfire Preparation - Rubbish Collection (Green Waste)

File: S02294

Vide: GB.13

To consider providing an additional green waste bin to fire prone properties.

Resolved:

(Moved: Councillors Greenfield/Kelly)

A. That Council not provide an additional green waste bin to fire prone properties during the remaining period of the domestic waste collection Contract.

B. That Council include in the next Domestic Waste Collection Tender an option for weekly green waste collection across the entire LGA.

C. That Council issue residents in fire prone areas with vouchers to self-dispose of domestic loads of vegetation at the Kimbriki Waste Management Centre.

D. Issue of vouchers to be reviewed if the option for additional green waste service is included in the next Domestic Waste Collection Tender.

CARRIED UNANIMOUSLY

111

RFT 10-2018 HVAC Upgrades – Gordon Library

File: RFT10-2018

Vide: GB.14

To consider the tender received for the upgrading of the existing HVAC (Heating, Ventilation and Air Conditioning) System in Gordon Library, and appoint the preferred tenderer.

Resolved:

(Moved: Councillors Citer/Kelly)

A. That Council accept the tender submission from the Tenderer for the upgrade of existing HVAC System at Gordon Library.

B. That the Mayor and General Manager be delegated authority to execute all tender documentation on Council’s behalf in relation to the contract.

C. That the Seal of Council be affixed to the contract documents.

D. That all tenderers be advised of Council’s decision in accordance with Clause 178 of the Local Government Tendering Regulations.

CARRIED UNANIMOUSLY

112

Lindfield Heritage Timber Cottage

File: S09449

Vide: GB.15

To provide Council with an update of the feasibility and cost of moving the Lindfield Heritage Timber Cottage.

Resolved:

(Moved: Councillors Citer/Greenfield)

A. That Council continue to investigate the feasibility and costs associated with relocating the cottage.

B. That Council continue efforts in making contact with the new owner of the property.

C. That Council provide a further report outlining any discussions with the new property owner and all associated costs involved in procuring and relocating the timber dwelling at 55a Lindfield Avenue Lindfield.

CARRIED UNANIMOUSLY

Standing Orders were suspended to deal with items
where there are speakers first, after a
motion was moved by Councillors Szatow and Clarke
was CARRIED UNANIMOUSLY

Councillor Spencer withdrew during discussion

Councillor Ngai withdrew during discussion

Councillor Smith withdrew during discussion

Councillor Spencer returned

Councillor Ngai returned

Councillor Smith returned

113

Consideration of the submissions on the planning proposal for several heritage conservation areas in Wahroonga, Turramurra, Pymble and Gordon

File: S11437

Vide: GB.8

For Council to consider the submissions received during the public exhibition of the Planning Proposal to include several new and extended heritage conservation areas in the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015) and the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (KLEP LC 2012).

The following members of the public addressed Council on this item:

Yan Qian

Feng Zhang

Adam Futeran

Justin Caswell

Paul Cooper

Giles Tabuteau

Janet Harwood

Sharon McClelland

Rebecca Robertson

Denis Zhou

Thomas Ban

Janine Kitson

Stephen Sefton

Peter Collins

Resolved:

(Moved: Councillors Ngai/Szatow)

That given the short timeframe provided to make decisions that impact over 800 properties, and the significant impact that these decisions could have on the character of Ku-ring-gai, that Council should defer the matter and spread the decision making across the next three (3) council meetings.

CARRIED UNANIMOUSLY

114

Lindfield Village Green

File: S10840

Vide: GB.11

To update Council on negotiations with TfNSW regarding funding for commuter parking spaces, advise on potential funding options available to Council for a 3 Level basement design, update on the Development Application for a third underground level of parking at the Lindfield Village Green (LVG) and approve the preparation and submission of a Capital and Expenditure Review to the NSW Office of Local Government.

The following member of the public addressed Council on this item:

Merryn Sheriff

Resolved:

(Moved: Councillors Ngai/Clarke)

A. That Council acknowledges the potential funding sources as identified in this report in order to finance additional short term parking spaces within the LVG basement and that the S94 component as per Clause 3.11 of the Ku-ring-gai Contributions Plan be increased to $12 million.

B. That a further report be brought back to Council outlining the agreed arrangements proposed in a Heads of Agreement with TfNSW.

C. That $150,000 be transferred from the 9 Havilah Lane, Lindfield Proceeds Reserve to cover the costs of documenting the S96 modification.

D. That a Capital Expenditure Review be prepared and submitted to the NSW Division of Local Government.

CARRIED UNANIMOUSLY

Councillor Spencer withdrew during discussion

Councillor Ngai withdrew during discussion

Councillor Greenfield withdrew during discussion

Councillor Spencer returned

Councillor Ngai returned

Councillor Greenfield returned

Councillor Citer withdrew during discussion

Councillor Citer returned

Councillor Clarke withdrew during discussion

Councillor Clarke returned

Councillor Smith withdrew during discussion

Councillor Smith returned

Councillor Ngai withdrew during discussion

Councillor Ngai returned

Councillor Citer withdrew during discussion

Councillor Citer returned

115

Lindfield Library, Library Village Hub and Asset Recycling to meet community needs

File: S10468

Vide: NM.1

Notice of Motion from Councillors Citer, Szatow, Ngai, Pettett, Kelly and Spencer dated 16 April 2018

Background

The current Lindfield branch library located at 259-271 Pacific Highway is about 60 years old and in need of a significant overhaul. Studies and community consultation have identified that the library is unable to deliver modern services to meet the future needs of the community, with some gaps identified including:

· Inadequate space for all activities and collections

· Shortage of shelving

· Lack of study and reading spaces

· Inadequate children's area and lack of separation of this area

· Inadequate space for events

· Lack of contemporary technology inclusions; and

· Lack of adequate parking as well as issues relating to access.

The Lindfield Library site also includes meeting rooms, resource rooms, and space for KYDS Youth Development Services (teenage counselling service) and the Lindfield Seniors.

Ku-ring-gai Council’s vision is to build a new Lindfield Village Hub located on the western side of Lindfield local centre on the Council car park off Woodford Lane behind the Pacific Highway shops. This project will include a new library that is purpose built to reflect the needs of future library users, new spaces to meet the needs of community groups such as KYDS and the Lindfield Seniors, and green spaces for residents to enjoy.

Council voted to reclassify the Lindfield Library Site as operational land on 11 November 2014 and it is the hope of Lindfield residents that the money raised by selling the old library site will go towards the construction of the new library site located at the Lindfield Village Hub.

Other Projects of Community Benefit

In the immediate short term, the Council does have more pressing needs with no funding allocated.

The St Ives Indoor Sports Complex is an initiative by the NSW Department of Education to jointly fund the construction of a sports facility at St Ives High School. While many surrounding councils have provided their residents with access to both indoor and outdoor basketball courts, Ku-ring-gai is lagging in its support of this rapidly growing sport. This offer to jointly fund the construction of a sports facility is time limited, and Council’s share is entirely unfunded.

The renewal of the Marian Street Theatre will bring back to Ku-ring-gai a place for the performing arts and is core to revitalising Killara, however this too is entirely unfunded.

The design of the Lindfield Village Green was recently changed to incorporate a third basement level of parking. While this goes a long way to address community concerns about the adequacy of parking in the area, the third basement level was largely unfunded and the project cannot progress until all funding is confirmed.

The East Lindfield Community Centre has been in a state of disrepair for many years. This community centre is located at the heart of the East Lindfield community and despite its poor layout and ineffective lighting, is used by various groups throughout the week. Council currently has no official plan, schedule, or funding to repair or rebuild this community centre.

Asset Recycling While Meeting Intermediate Community Needs

While any funds raised from the sale of the old library site should eventually go back towards the creation of the new Lindfield Village Hub, construction work was never going to take place for both projects simultaneously. In other words, construction work for the Village Hub is at least two years away and the sooner the Village Green is completed, the sooner the Village Hub can commence.

If the sale of the old library is brought forward, the funds could provide the opportunity for Council to meet the immediate needs of the community including the renewal of the East Lindfield Community Centre, commencement of the Lindfield Village Green, jointly funded construction of the St Ives Indoor Sports Complex, and the restoration costs of the Marian Street Theatre. Any funds leftover from the sale should be classified as a new restricted fund for the future construction of the Lindfield Village Hub. Subsequent asset sales (yet to be announced) should then be used to increase the value of this new restricted fund for Lindfield Village Hub, bringing it up to the sale value of the Lindfield library site plus interest.

We also recognise that the sale of the old library site will result in the disruption of activities for local community groups including patrons of the Lindfield library, KYDS Youth Development Service, and the Lindfield Seniors. Although these groups will eventually find their home in the Lindfield Village Hub, interim arrangements should also be provided so that they can continue their activities before its completion.

Councillors are aware that there are multiple vacant spaces in the Lindfield local centre that could serve as a temporary home for the Lindfield branch library, KYDS, and Lindfield Seniors until the completion of the Lindfield Village Hub.

Councillors are also aware that the Council owned property of 828 Pacific Highway Gordon, which has been set aside for the future Gordon Civic Hub, is currently underutilised. The empty spaces in this building could also potentially meet the needs of community groups until the opening of the Lindfield Village Hub.

We move:

A. That Council agrees that all funds raised from the sale of 259-271 Pacific Highway (the old Lindfield Library and Community Site) should eventually facilitate the creation of the new Lindfield Village Hub (the new Lindfield Library and Community Site) including a pedestrian bridge across the Pacific Highway.

B. That Council staff immediately seek to identify whether there is an appropriate alternate home for the Lindfield branch library, and a report come back to Council with urgency outlining transitional arrangement options.

C. That Council staff immediately seek to identify transitional arrangements for KYDS, as well as any other tenants of the current library site for which there are obligations to negotiate or discuss alternate accommodation requirements. This report should also come back to Council with urgency, and the vacant space in 828 Pacific Highway Gordon should be considered as part of this report.

D. That this new Council reaffirms the selection of Marian Street (not Gordon Civic Hub) as the preferred option for theatre in Ku-ring-gai, and that the renewal of the Marian Street Theatre should be added to the draft Long Term Financial Plan.

E. That the St Ives Indoor Sports Complex should be added to the draft Long Term Financial Plan.

F. That Council provides its in principle support for the knockdown and rebuild of the East Lindfield Community Centre at 9 Wellington Road East Lindfield, being Lot X of DP 414251, and that this should be added to the draft Long Term Financial Plan. (If for whatever reason a knockdown and rebuild is not possible, then Council should instead restore the Lindfield Community Centre to a safe condition that complies with modern day BCA standards while also considering what additions and alterations are possible to maximise community benefit).

G. That Council staff should immediately commence the process of community consultation and design of a modern, brighter, and more optimally laid out East Lindfield Community Centre at Lot X of DP 414251. When reporting back to the Council, staff are welcome to refer to the recently completed structural assessment report, explaining the merits of knockdown and rebuild vs. a costly repair of the building in compliance with modern BCA standards. When reporting back to the Council, staff are also invited to suggest ways of reducing the net cost of the rebuild.

H. That subject to the certainty of relocating services mentioned in B and C above, Council approves the divestment of 259-271 Pacific Highway Lindfield, being Lot 8 in DP660564 and Lots 1, 2 and 3 in DP212617.

I. That the divestment of 259-271 Pacific Highway Lindfield be carried out by an open competitive process in accordance Council’s Acquisition & Divestment of Land Policy 2014.

J. That the General Manager and/or his delegate to obtain two (2) independent valuation reports to establish the market value in accordance Council’s Acquisition & Divestment of Land Policy 2014.

K. That Councillors are to be provided with copies of the valuation reports on which market value is determined in accordance with J. above.

L. That Council authorises the General Manager and/or his delegate to set the reserve price established by an independent valuation report prior to divestment.

M. That In the event the property does not reach the reserve price that Council authorises the General Manager and/or his delegate to negotiate within a variance of 10% of the reserve.

N. That Council authorises the General Manager and/or his delegate to negotiate any special conditions and contract terms required to protect the Council’s interests.

O. That Council authorises the General Manager to execute all documentation and affix the Council Seal if required, to all documents associated with the sale of 259-271 Pacific Highway Lindfield, being Lot 8 in DP660564 and Lots 1, 2 and 3 in DP212617.

P. That net proceeds from the sale of 259-271 Pacific Highway are fully made available to the knockdown and rebuild of the East Lindfield Community Centre (to a design that is agreed upon by Councillors) (and where knockdown rebuild is not possible, then the restoration of the Community Centre as per (F) and (G) above), to meet funding shortfalls of the Lindfield Village Green, to entirely rebuild the Marian Street Theatre (to a design and business plan that is agreed upon by Councillors), and also to build an indoor sports complex at St Ives High School in collaboration with the Department of Education (to a design and business plan that is agreed upon by Councillors). This Council resolution is consistent with the draft Property Development and Investment Policy which states that Councillors are to determine what allocation of sale proceeds should go towards the Property and Development Reserve (irrespective of whether alternate capital projects have yet been added to the long term financial plan or not).

Q. That the difference of the sale price (O) and cost of other projects (P) be classified as new restricted funds dedicated to facilitating the development of the Lindfield Village Hub, including a pedestrian bridge across Pacific Highway. This restricted fund will be known as the Lindfield Village Hub Former Library Restricted Fund.

R. That all future asset sales should first and foremost go towards topping up the value of this new Lindfield Village Hub Former Library Restricted Fund (Q), at least up to the value of the sale price (O) plus an annualised rate of interest of the Reserve Bank of Australia’s cash rate (currently 1.50%) + 4.00%. The intent of this part is to ensure that the full value of the old Lindfield library site goes towards facilitating the development of the new Lindfield library site (A), including a pedestrian bridge across the Pacific Highway.

S. That after the Lindfield Village Hub Former Library Restricted Fund is topped up to the level stated in R, Council should resume contributing the Sale Proceeds of Strategic Surplus Properties towards the Property Development Reserve.

T. That the rolling amounts available in each of Council’s unrestricted funds and restricted funds (including the Property Development Reserve, Lindfield Village Hub Former Library Restricted Fund (Q), as well as the shortfall to reaching the value of library site sale price plus interest (O, R)) are to be reported in the Council’s monthly investment report.

The following members of the public addressed Council on this item:

Michelle Chiu

Lindsay Donovan

Jane Salmon

Cheryl Sutherland

Elise Keays

Ester Etkin

Carolyn Darby

Indu Balachandran

Kamahl Am

James Southwell

Harry Loughnan

Olivia Blayney

Chris Blayney

Janine Kitson

Allan Kreuiter

Dianah Warner

Andrew Pik

Ursula Bonzol

David Hume

115

Resolved:

(Moved: Councillors Ngai/Szatow)

A. That Council recognises the unanimous decisions of all ten councillors of the former council (GB8, 27/06/2017) and nine councillors of the current council (GB6, 28/11/2017), and that Council should continue with a pre-approved DA.

B. That Council reaffirms the current council position that the new Lindfield Library along with facilities for KYDS and the Lindfield Seniors will be provided for within the Lindfield Village Hub.

C. That Council supports the statement on the Council website for 259-271 Pacific Highway (see: Attachment A5 of NM3) that “Council is committed to ensuring the transition to the new Lindfield Library is as seamless as possible. The Lindfield Library will continue to operate in its current site or at an alternate Lindfield location until the new Lindfield Library at the Lindfield Community Hub is ready.”

D. That Council recognises that depending on the timing of the potential sale of the old Lindfield Library and the opening of the new Lindfield Library, there could be a gap in service provision. In light of this information and the fact that it may take 1.5 to 2 years to prepare for a library move (including DA process), Council calls for council staff to begin the process of identifying an alternate location for the Library and the seniors within the Lindfield Town Centre. Similarly, council staff are to look for an alternate location for KYDS that is sensitive to the needs of its visitors. If required, these alternate locations will serve as the interim homes for the respective community groups until the Lindfield Village Hub is completed.

E. That until there is certainty that the needs of each group can be provided for as per D above, there shall be no sale of the current Lindfield Library site. Preparations for a DA should continue.

F. That a pedestrian bridge is highly desirable for the Lindfield Village Hub and all best endeavours should be taken to deliver it.

G. That council staff should start a community consultation process with the residents of East Lindfield to determine whether they would prefer to sympathetically restore and expand the East Lindfield Community Centre or whether they would prefer a knockdown and rebuild with multiple meeting spaces. It is acknowledged that $392,400 has already been allocated to remedial works for this asset under the Draft Delivery Program and this work will include a drainage upgrade, however it will more than likely not extend to repairing the roof or paint, neither will it bring the building up to today’s Building Code of Australia compliance, or cater for other architectural recommendations mentioned by the recently completed structural assessment report. This renewal of the East Lindfield Community Centre is to be added to the Long Term Financial Plan. The funding sources are to be determined at a later stage, but may potentially include proceeds from the sale of the Roseville Chase Bowling Club.

H. That Council reaffirms the selection of Marian Street (not Gordon Civic Hub) as the location for theatre in Ku-ring-gai, and that the renewal of the Marian Street Theatre is to be added to the Long Term Financial Plan. Construction work must begin in FY2020/21. The funding sources are to be determined at a later stage, but may potentially include proceeds from the sale of the Gordon Bowling Club.

I. That the St Ives Indoor Sports Complex is to be added to the Long Term Financial Plan. The funding sources are to be determined at a later stage, but may potentially include proceeds from the sale of recreational Bowling Clubs.

For the Resolution: Councillors Ngai, Spencer, Citer, Kelly and Szatow

Against the Resolution: The Mayor, Councillor Anderson, Councillors Clarke, Greenfield and Smith

The above was subject to a Procedural Motion

moved by Councillor Spencer and Seconded by

Councillor Szatow that the Motion be put

as there had been 2 speakers For and 2 Against.

For the Resolution: Councillors Ngai, Clarke, Spencer, Citer, Kelly and Szatow

Against the Resolution: The Mayor, Councillor Anderson, Councillors Greenfield and Smith

Standing Orders were suspended to deal with items

NM.3, GB.2, GB.3 followed NM.2, after a motion

moved by Councillors Clarke and Spencer was CARRIED.

For the Motion: The Mayor, Councillor Anderson, Councillors Ngai, Clarke, Spencer, Greenfield, Citer, Smith and Kelly

Against the Motion: Councillor Szatow

Councillor Szatow withdrew during discussion

Councillor Spencer withdrew during discussion

Councillor Spencer returned

Councillor Szatow returned

116

Improving public communication on Lindfield Village Green, and withdrawal of MOD0030/18

File: S10840

Vide: NM.3

Notice of Motion from Councillor Ngai dated 30 April 2018

Ku-ring-gai Council is about to embark on its most expensive construction project to date. The Lindfield Village Green, located at 8-10 Tryon Road and 3-5 Kochia Lane Lindfield, will potentially cost more than $30m. When completed, it will serve as a wonderful green space for the residents of Lindfield and its surrounding suburbs, however the project has historically been riddled with controversy largely due to a perceived lack of regular and earnest community consultation during the design phase.

Many residents still have concerns over the latest design (MOD0030/18) which was lodged on 28th February 2018 and is to be determined by the Sydney North Planning Panel. It is important that as a Council, we publicly acknowledge our residents’ concerns either by providing a coherent explanation as to why we are satisfied with the current design, or by admitting to making a mistake. And if we have made mistakes, we should follow up by either fixing the design or providing a range of measures to minimise the impact of each mistake.

It is important that we address any flaws in the design as soon as possible, as flaws are significantly cheaper to correct during the design phase than later during construction or after completion. If any flaws are built into the final product, chances are that the Council will not have the financial capacity to fix them in the next decade, and instead, residents will be impacted by the flawed design for the next 50 years.

A list of some of the residents’ concerns is provided below. Note that this list is not exhaustive.

Trolley Management

Council needs to manage public expectations as to whether it supports the movement of shopping trolleys into and out of the future Lindfield Village Green carpark. If not, why not, and what range of measures will it take to manage trolleys in the local area?

Single Elevator Access (Single Point of Failure)

Residents have expressed concern as to whether a single elevator is sufficient to service the needs of four levels and 241 car parking spaces (136 short stay, 105 commuter). What kind of waiting intervals will visitors have to face? Will congestion be exacerbated by people using shopping trolleys and prams? What will people with mobility issues (such as wheelchairs, prams, and possibly shopping trolleys) do when the single elevator is out of service? If the single elevator is out of service and spare parts are required for fixing it, how many days or weeks will people with mobility issues be impacted by this outage?

Note that the design does not include any access ramps or alternate methods for people with mobility issues to safely get in and out of the basement levels. Residents are concerned about this critical single point of failure.

It should also be noted that the single elevator is much larger than a standard elevator. At 2100mm x 2000mm, it has a load capacity of 29 people which may comfortably fit a dozen people (excluding bulky items such as wheelchairs, prams, and trolleys). But despite the impressive size of the single elevator, the issue of a critical single point of failure and an outage of unknown duration does not appear to be adequately addressed.

Future Parking Demand

There are concerns that the findings of the Traffic Impact Assessments reported by Cardno on 19 December 2016, 07 June 2017 and 21 February 2018 do not accurately reflect the observations of local residents.

On Monday 07 March 2016, just before 9am, my wife and I drove into the Tryon Road carpark and we noted that the carpark was full. I had to drop off my wife before parking the car ~500m away on Nelson Road.

Similarly, residents have provided many photos which, although they do not cover every parking space in the area, show that the carpark can get quite full (Attachment A1).

Cardno on the other hand undertook a study with a sample size of one day (Tuesday 15 November 2016) while also ignoring the fact that construction activity already had the impact of discouraging local visitors to the area. On this single day, it noted that “the peak car parking demand occurred at 11:00am when there were 112 cars parked in the car park, corresponding to 23 spaces being vacant” (Attachment A2). However, it is obvious to any local resident that the Cardno study was wrong, and it appears that the flawed methodology was overlooked by the Sydney North Planning Panel when it made its earlier decision on the project (Panel Reference 2017SNH008, DA Number DA0651/16). The study also does not appear to consider weekend parking demand.

I currently believe that the 136 short stay spaces offered by the future Lindfield Village Green (with a paid parking management system), along with the 41 retail spaces offered by Lindfield Markets, the 62 retail spaces offered by Aqualand, and various parking options that Council can provide on the surrounding streets might be adequate to meet local demand on weekdays 7am to 7pm. However not all residents are convinced.

It must also be noted that the previous Sydney North Planning Panel decision required that “The use of the approved car park does not include the restriction of parking to different classes of users. Any allocation of long-term or commuter parking shall be limited to between 7am and 7pm Monday to Friday. Such long-term parking spaces shall be available for use by others outside these times.”

What this effectively meant was that on weekends and on weeknight, residents would have free access to 181 parking spaces. Now under the current S96 modification, weekend and weeknight parking has been reduced by 25% to 136 parking spaces. With regard to this, the Cardno Report did not appear to consider current or future weekend parking demand hence residents are concerned.

Traffic Flow Estimates, Projections, and Changes

There are also concerns as to whether the traffic flow estimates and projections reported by Cardno as recently as 21 February 2018 can be relied upon. Apparently it is based on “SIDRA 7” and the projected future demand is for “2027 Background with LVG & Aqualand”.

To the common person, it is not clear what this means. Does “LVG & Aqualand” mean that the traffic study used the flawed demand measurements (above) as LVG baseline, along with Aqualand traffic study information that cannot even be found on the Council’s DA website? Does “LVG & Aqualand” also mean that all other buildings in the area, both those that have recently been completed (such as Lindfield Markets) as well as those that are currently under construction or undergoing the DA process, have not been factored into the traffic flow estimates for the report dated 21 February 2018? Does the LVG baseline include any demand generated by the green space itself?

To the common person, this is all mumbo jumbo that is tainted by the flawed parking study conducted by Cardno. To date, Council appears to have done little to assure the public that future traffic flows in the area will be adequate.

And any local resident knows that accessing Pacific Highway via Lindfield Avenue and the Balfour Street Railway Tunnel is a nightmare during peak periods and weekends. Is Council going to do anything about it?

Will there be any further changes to traffic signalling, traffic directions, and traffic flows in the local area? When will such improvements be made? How will they be funded?

Other Concerns

Residents also have other concerns such as:

· Acoustics of supermarket delivery trucks moving along inclined laneways next to residential areas.

· The decision to cut off Chapman Lane and Kochia Lane (West) from vehicular access (a way for trucks to access the supermarkets while minimising acoustic impacts on residents).

· Whether Havilah Lane will definitely be widened to two lanes.

· Why there is no plan for a children’s playground when there is no other children’s playground in the local area (closest ones are at considerable distance, Two Turners Reserve, Roseville Park, East Lindfield Shops, Greengate Park).

· Why Council has opted for an additional café instead of additional green space or a playground.

· Provision of Emergency Parking and Loading Zones.

· Whether there will be a Parking Guidance System and Dynamic Availability Signage.

While Council staff have many sensible answers to the questions above, the general public does not know these answers. And the information is either not available on the Council website, or is not easily accessible.

I move:

A. That Council immediately withdraws its application of MOD0030/18 (Lindfield Village Green).

B. That Council updates the design for Lindfield Village Green to include a second passenger elevator. To compensate for the loss of parking spaces resulting from the second passenger elevator, the panhandle on levels B2 and B3 should be extended from the current design of 4 parking spaces on each level to 8 parking spaces on each level. The funding for the extra elevator and larger panhandle may come from other asset sales discussed tonight.

C. That Council immediately updates its main Lindfield Village Green webpage (Attachment A3) to include a detailed project timeline in place of the current “Project Update” section. To assist in a speedy implementation, Council could potentially copy and paste the information included in the recent email titled “Activate Lindfield – Project Update April 2017” [sic] dated 26 April 2018 (Attachment A4), then make other additions as required.

D. That similar to the Frequently Asked Questions webpage for 259 – 271 Pacific Highway (Attachment A5), a Frequently Asked Questions webpage should be created for the Lindfield Village Green before the end of May 2018. This webpage should include answers to the outstanding concerns raised by residents as part of DA0651/16 and MOD0030/18, as well as the concerns listed above.

E. That Council staff confidentially provide the Councillors with a copy of all responses to MOD0030/18, along with a report on whether there are any other design changes that they believe need to be made, or further studies that they believe need to be undertaken. Councillors should be allowed at least a few days to read this report and to provide their feedback before the submission of the next Lindfield Village Green s96 modification.

The following members of the public addressed Council on this item:

Judy Butlin

Ron Taylor

Resolved:

(Moved: Councillors Ngai/Citer)

A. That Council updates the design for Lindfield Village Green to include a second passenger elevator.

B. That Council immediately updates its main Lindfield Village Green webpage (Attachment A3) to include a detailed project timeline in place of the current “Project Update” section. To assist in a speedy implementation, council could potentially copy and paste the information included in the recent email titled “Activate Lindfield – Project Update April 2017” [sic] dated 26 April 2018 (Attachment A4), then make other additions as required.

C. That similar to the Frequently Asked Questions webpage for 259 – 271 Pacific Highway (Attachment A5), a Frequently Asked Questions webpage should be created for the Lindfield Village Green before the end of May 2018. This webpage should include answers to the outstanding concerns raised by residents as part of DA0651/16 and MOD0030/18, as well as the concerns listed above.

For the Resolution: The Mayor, Councillor Anderson, Councillors Ngai, Spencer, Citer, Kelly and Szatow

Against the Resolution: Councillors Clarke, Greenfield and Smith

At 11:45 pm, a Motion moved by Councillors Clarke and Szatow
to extend the meeting to complete all items within the Business Paper,
was CARRIED UNANIMOUSLY

117

Draft Resourcing Strategy 2018-2028

File: S11276

Vide: GB.2

To place Council's Resourcing Strategy incorporating the Long Term Financial Plan, Asset Management Strategy and Workforce Management Strategy on public exhibition.

Resolved:

(Moved: Councillors Citer/Clarke)

A. That the report on Council’s Resourcing Strategy 2018 – 2028, incorporating the Long Term Financial Plan, Asset Management Strategy and Workforce Management Strategy be received and noted.

B. That relevant matters in the Council Resolution for NM.1 on this Agenda (Lindfield Library, Library Village Hub and Asset Recycling to meet community needs) be added to the draft Resourcing Strategy 2018 – 2028, incorporating the Long Term Financial Plan, Asset Management Strategy and Workforce Management Strategy, and placed on public exhibition for a period of 28 days commencing Friday, 11 May 2018.

C. That following public exhibition, a further report be submitted to Council for the adoption of the Resourcing Strategy 2018 – 2028, incorporating the Long Term Financial Plan, the Asset Management Strategy and the Workforce Strategy.

CARRIED UNANIMOUSLY

118

Draft Delivery Program 2018-2021 and Draft Operational Plan 2018-2019

File: FY00382/10

Vide: GB.3

To place Council's draft Delivery Program 2018-2021 and draft Operational Plan 2018-2019, incorporating the Budget, Capital Works Program and Fees and Charges for 2018-2019, on public exhibition.

Resolved:

(Moved: Councillors Citer/Clarke)

A. That the report on Council’s draft Delivery Program 2018-2021 and draft Operational Plan 2018-2019, incorporating the Budget, Capital Works Program and Fees and Charges for 2018-2019, be received and noted.

B. That the relevant matters in the Council Resolution for NM.1 on this Agenda (Lindfield Library, Library Village Hub and Asset Recycling to meet community needs) be added to the draft Delivery Program 2018-2021, and draft Operational Plan 2018-2019, incorporating the Budget, Capital Works Program and Fees and Charges for 2018-2019 and placed on public exhibition for a minimum period of 28 days commencing Friday, 11 May 2018.

C. That following public exhibition, a further report be submitted to Council for the adoption of the draft Delivery Program 2018-2021, and draft Operational Plan 2018-2019, incorporating the Budget, Capital Works Program and Fees and Charges for 2018-2019.

CARRIED UNANIMOUSLY

119

Discontinuance of legal actions in relation to Bunnings Development at 950 Pacific Hwy, Pymble

File: DA0307/17-6

Vide: NM.2

Notice of Motion from Councillor Spencer dated 26 April 2018

Background

The protracted legal battle between Ku-ring-gai Council and Bunnings in relation to Bunnings Development at 950 Pacific Hwy, Pymble, has cost ratepayers a staggering $520,000.00 in legal expenses, along with costs which have been awarded to Bunnings by the Court.

It is understood that Bunnings' legal expenses exceed $500,000.00 and that does not include various experts such as planners, engineers, arborists, urban designers, and heritage consultants. Details are as follows.

Material facts

1. 2006-2011 – 5 heritage reviews, 3M building not identified as item of heritage significance.

2. 17/07/2012 – Council resolved not to support listing 3M building.

3. 12/2012 – Bunnings Purchased Site.

4. 15/05/2013 – Bunnings submitted a rezoning application.

5. 27/08/2013 – Council to consider a planning proposal to amend Ku-ring-gai Planning Scheme Ordinance (KPSO) to permit hardware and building supplies as a use permissible with consent under the B7 - Business Park zone...... Council resolve that the matter be deferred until an independent heritage report comes back to Council with a study of the 3M Building and the site.

Question from Councillor Citer on legal expenses

Councillor David Citer asked a Question Without Notice in the Ordinary Meeting of Council held on 7 March 2018 and it is reprinted below:

QUESTIONS WITHOUT NOTICE

59 Bunnings Site - Legal Expenses

File: S10721

Vide: QN.1

Question Without Notice from Councillor David Citer

Could Councillors please obtain an idea of how much has been spent on legal action against Bunnings establishing a warehouse on the old 3M building site? Is there a further Notice of Intention to appeal to the Court of Appeal?

Answered by Director Development and Regulation

The Director Development and Regulation advised he would take the question regarding legal expenses on notice.

In relation to the legal action against Bunnings, the Director advised Bunnings lodged the appeal not Council.

In relation to whether or not the Notice of Intention to appeal has been lodged, that is correct, it is merely a holding measure to enable Council to have that option should, based on consideration of the decision, which is only recently been released in written form determine Council’s prospects warrants such. And, as I indicated earlier, Jamie Taylor in an email last week stated there would be a briefing for Councillors, basically explaining the circumstances and answering any questions in relation to this matter.

Response from Bunnings

A response from Bunnings to the above Question Without Notice was sent to Councillors on 23 March 2018 (Annexure “BNM1”). Upon further enquiry, a further response was received on 13 April 2018 (Annexure “BNM2”). The content of the same is reprinted below:

Decision 1 (File 2016/152878)

Bunnings Properties Pty Ltd (appellant) vs Ku-ring-gai Council (respondent). Decision: 20/7/16 interim judgement Amended Plans invited (Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658). Decision made, no further action.

Decision 2 (File 16/152878)

Bunnings Properties Pty Ltd (appellant) vs Ku-ring-gai Council (respondent). Decision: 25/10/16 Leave granted to reopen proceeding to address new heritage item caselaw (Bunnings Properties Pty Ltd v Ku-ring-gai Council; (No 2) [2016] NSWLEC 1659) Decision made, no further action.

Decision 3 (File 17/43289)

Ku-ring-gai Council (appellant) vs Bunnings Properties Pty Ltd (respondent)

Decision: 3/3/17 Appeal dismissed with costs (Ku-ring-gai Council v Bunnings Properties Pty Ltd [2017] NSWLEC 16) Decision made. Costs awarded to Bunnings, yet to be resolved.

Decision 4 (File 2016/152878)

Bunnings Properties Pty Ltd (appellant) vs Ku-ring-gai Council (respondent). Decision: 16/5/17 Appeal upheld with conditions (Bunnings Properties Pty Ltd v Ku-ring-gai Council (No.4) [2017] NSWLEC 1238) Decision made, no further action.

Decision 5 (File 2017/206960)

Ku-ring-gai Council (appellant) vs Bunnings Properties Pty Ltd (respondent)

Decision: 28/2/17 Appeal dismissed with costs (Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19) Decision made. Costs awarded to Bunnings yet to be finalised. Bunnings offer dated 3 April 2018. No response from Council yet.

On 29 May 2017 Ku-ring-gai Council commenced proceedings in the Court of Appeal against Bunnings (Case 2017/96526). This matter has not yet been heard. No hearing yet, prospective discontinuance by Council given later proceedings. Bunnings offer to settle costs arising from possible discontinuance dated 22 March 2018. No discontinuance nor response from Council.

On 13 March 2018 Ku-ring-gai Council filed a Notice of intention to appeal to the Court of Appeal (Case 2018/81252). No formal appeal has yet been filed. No update – Council still reviewing its options?

On 5 October 2017 Bunnings filed an appeal against the quantum of section 94 contributions. (Case 17/1266642). A hearing date has been set for 25 & 27 July 2018. Council has offered a compromise figure which Bunnings’ supports in principle. Prospective consent orders to be heard by Court on 20 April. If this proceeds in this manner and is accepted by Court, this matter will be resolved.

On 20 March 2018 Bunnings filed an appeal against the deemed refusal of DA 307/17 (Case 2018/89311) – DA identical to May 2017 Court approval. This is yet to have its first directions hearing. Appeal lodged by Bunnings to preserve our appeal rights. No hearing and very early in Court process. This DA was listed on the Planning Panel agenda until removed by Council officers. Bunnings would prefer DA to proceed to the Panel for determination instead of proceeding through another lengthy Court process.

Conclusion

A prolonged battle with Bunnings is not in the best interest of Ku-ring-gai ratepayers especially when monies could be better spent elsewhere. The litigation has been ongoing since 2015 with no end in sight. We must stop throwing away “good money after bad.” The parties have already spent over $1 million in legal expenses. It is time for Council to reconsider the cost/benefit of the litigation and whether to spend another $1 million in legal expenses.

Feedback I received from speaking with members of the community suggests that the litigation between Council and Bunnings is unnecessary. Bunnings is a ratepayer too. The objections to having a Bunnings in the Business Park do not reflect the current views of many Ku-ring-gai residents. For instance, Ku-ring-gai has many D.I.Y. residents and the larger Bunnings are only found in Pennant Hills and Chatswood.

Bunnings has proposed a much better development since then and it is suggested that the new development will revitalise the area by creating some 200 ongoing positions within the store, and by attracting renewed commercial interest in the Business Park with 1000s of customers expected to patronise the proposed Bunnings each week.

The ripple effect in the local economy will be positive.

Recommendation

I therefore move that:

A. Council's solicitors be instructed to not pursue all current and proposed proceedings in the Court of Appeal against Bunnings.

B. The General Manager be granted delegated authority to expeditiously and reasonably settle all outstanding costs matters with Bunnings.

C. Council's solicitors be instructed to prepare a report in relation to DA 307/17 for which leave has been granted to amend Bunnings’ proposal.

D. The General Manager to prepare a report for Council's future consideration, proposing the amendment of the Ku-ring-gai Local Environmental Plan 2015 to remove the 3M building from Schedule 5 (Heritage Items).

The following member of the public addressed Council on this item:

Giles Tabuteau

During debate on this item Council resolved itself into Closed Meeting
with the Press and Public excluded after a Motion
moved by Councillors Clarke and Szatow
and was CARRIED UNANIMOUSLY

Council resolved to return to Open Council
after a Motion moved by Councillors Greenfield and Smith
was CARRIED UNANIMOUSLY

Resolved:

(Moved: Councillors Spencer/Kelly)

That the above Notice of Motion as printed be adopted.

For the Resolution: Councillors Ngai, Spencer, Citer and Kelly

Against the Resolution: The Mayor, Councillor Anderson, Councillors Clarke, Greenfield, Smith and Szatow

No decision was taken in respect of the above matter as

the Motion when put to the vote was LOST

BUSINESS WITHOUT NOTICE - SUBJECT TO CLAUSE 241 OF GENERAL REGULATIONS

A Motion moved by Councillor Smith
to have the matter dealt with at the meeting
was CARRIED

For the Motion: The Mayor, Councillor Anderson, Councillors Ngai, Clarke, Greenfield, Citer, Smith, Kelly and Szatow

Against the Motion: Councillor Spencer

The Mayor ruled Urgency
and the matter was dealt with

120

Proposed Interim Heritage Order - 149 Livingstone Avenue Pymble

File: S10066

Vide: BN.2

Councillor Martin Smith drew Council’s attention to a property for which Council is in receipt of a Development Application for demolition that is considered by Council Staff, local residents and Council’s Heritage Reference Committee to be likely worthy of a local heritage listing.

The property is located at 149 Livingstone Avenue Pymble and urgency is established because it is under the threat of imminent demolition.

Resolved:

(Moved: Councillors Smith/Szatow)

That Council resolve to place an Interim Heritage Order under Section 25 of the NSW Heritage Act 1977, for 149 Livingstone Avenue Pymble (Lot 3 DP607951), to enable full and proper evaluation of the heritage significance and prevent any harm to the site in the interim.

For the Resolution: The Mayor, Councillor Anderson, Councillors Ngai, Clarke, Greenfield, Citer, Smith, Kelly and Szatow

Against the Resolution: Councillor Spencer

QUESTIONS WITHOUT NOTICE

121

Unsolicited Proposal from Woolworths

File: S09780

Vide: QN.1

Question Without Notice from Councillor Peter Kelly

Resolved:

Will the General Manager organise a briefing/presentation for Council to consider?

Answered by General Manager

The General Manager advised he would be happy to do that.

122

Teetop Pty Ltd - Arbitration

File: S07447

Vide: QN.2

Question Without Notice from Councillor Cedric Spencer

Would the General Manager provide Council with a detailed report on legal expenses in relation to the matter?

Answered by General Manager

The General Manager advised that the Corporate Lawyer would provide a written response to all Councillors.

123

Panel of Lawyers, Barristers and Legal Advisers

File: S08102

Vide: QN.3

Question Without Notice from Councillor Cedric Spencer

Would the General Manager provide a detailed expenses report on Council’s panel of lawyers, barristers and legal advisers (including expert witnesses and consultants) for the past two, and present, Council terms?

Answered by General Manager

The General Manager advised that the Director Corporate and the Corporate Lawyer will collate that information and provide that to Councillors.

The Meeting closed at 12:58 am

The Minutes of the Ordinary Meeting of Council held on 8 May 2018 (Pages 1 - 33) were confirmed as a full and accurate record of proceedings on 22 May 2018.

__________________________ __________________________

General Manager Mayor / Chairperson