Business Paper Extraordinary Meeting - bmcc.nsw.gov.au · (see Attachment 1) regarding the need for the Council to develop Improvement Plans in ... the General Manager report in writing

Business Paper Extraordinary Meeting

Venue: Administrative Headquarters Civic Place Katoomba Meeting: 7.30pm 17 April, 2018

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EXTRAORDINARY MEETING

17 APRIL 2018

AGENDA

ITEM NO.

PAGE SUBJECT COMMENTS

PRAYER/REFLECTION (and Recognition of the Traditional

Owners, the Darug and Gundungurra People)

APOLOGIES DECLARATIONS OF INTEREST MINUTE BY MAYOR 1 9 Improvement plan addressing interim report 3

and the Final report and amended to reflect SafeWork and the EPA feedback to date relating to the independent asbestos investigation. Attachment x 1 Enclosure x 1

NOTICES OF RESCISSION 2 19 Rescission Motion - Minute 117 of 27 March

2018 Council Meeting - "Great Blue Mountains Trail - Blackheath to Mount Victoria - Regulate Traffic" Movements

3 20 Rescission Motion - Minute 141 of 4 April

2018 Council Meeting - "Procedural - Procedural Motion"

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THE COUNCIL MEETING Blue Mountains City Council meetings are conducted in accordance with Council’s adopted Code of Meeting Practice. This Code is available via the Council website, from Council offices and in Council meetings. http://www.bmcc.nsw.gov.au/yourcouncil/councilmeetings Councillor Seating Map While the Councillor and Senior Staff seating map indicates the seating arrangement in most Council meetings, occasionally the seating may change based on the change to the venue or content experts. Business Papers and Minutes Before each Council meeting, a Business Paper is prepared detailing the items that are to be presented to the Council meeting. Readers should be aware that the Recommendations and Notices of Motion as set out in the Council Business Paper are simply proposals to the Council for its consideration. The Council may adopt these proposals, amend the proposals, determine a completely different course of action, or it may decline to pursue any course of action. The decision of the Council becomes a resolution of the Council and is recorded in the Council Minutes. Readers are referred to this separate document. The Council Business Paper and the Council Minutes are linked by the common Item Numbers and Titles. Minutes from the meeting are confirmed at the following meeting, until then they are presented as draft unconfirmed minutes. To Register to Speak at a Council Meeting Members of the public are welcome to address the Council on any items of business in the Business Paper other than:

• Unconfirmed Minutes; • Minutes by the Mayor; • Rescission Motions; • Councillor Reports; • Questions with Notice; • Responses to Questions without Notice; • Responses to Questions with Notice; • Notices of Motion (including Rescission Motions) • the Précis of Correspondence; and • Matters of Urgency.

To address the meeting a speaker’s registration form must be completed at the speaker’s registration desk on the night of the Council meeting. To pre-register, the speaker’s registration form must be emailed no later than 4pm on the day of the meeting to [email protected].

http://www.bmcc.nsw.gov.au/yourcouncil/councilmeetings

mailto:[email protected]

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DEVELOPMENT APPLICATIONS – MATTERS FOR CONSIDERATION When determining a development application the Council is required to take certain matters into consideration. These must be relevant to the development application under consideration. These considerations are detailed under s. 79C (1) (Matters for consideration – general) of the Environmental Planning and Assessment Act 1979 and are reproduced below: 79C Evaluation (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of: (i) any environmental planning instrument, and (ii)any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iii) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.

MINUTE BY MAYOR

MINUTE BY MAYOR Item 1, Ordinary Meeting, 17.04.18

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ITEM NO: 1 SUBJECT: IMPROVEMENT PLAN ADDRESSING INTERIM REPORT 3 AND THE

FINAL REPORT AND AMENDED TO REFLECT SAFEWORK AND THE EPA FEEDBACK TO DATE RELATING TO THE INDEPENDENT ASBESTOS INVESTIGATION.

FILE NO: F11178 - 18/78068 Delivery Program Link

Principal Activity: Civic Leadership Service: Governance and Risk

Recommendations: 1. That the Council notes the requirements of Action Items 2 and 4 of the Performance

Improvement Order dated 22 January 2018 made by the Minister for Local Government (see Attachment 1) regarding the need for the Council to develop Improvement Plans in response to the recommendations arising from the independent asbestos management investigation and to send those Plans to each of SafeWork NSW (SafeWork) and the Environment Protection Authority (EPA) for their review;

2. That the Council notes the requirements of Compliance Reporting Items 3, 4, 6 and 7 of the Performance Improvement Order dated 22 January 2018 made by the Minister for Local Government (see Attachment 1) regarding the need for:

- Compliance Report 4: Council’s Improvement Plans along with evidence of the review

of the Improvement Plans by SafeWork NSW and EPA must be provided to the Minister within 4 weeks from date of Council's adoption of the plans;

- Compliance Report 6: Council must provide the Minister with a written report on its progress against the Improvement Plans within 2 months of the plans being sent to the Minister; and

- Compliance Report 7: Final Compliance Report - Council must provide the Minister

with a written report on its progress against the Improvement Plans within 3 months of the Improvement Plans being sent to the Minister;

3. That the Council, adopts draft Parts 3 and 4 of the Council's Improvement Plan (provided

in Enclosure 1), that responds to the recommendations in the Clyde & Co Asbestos Investigation Interim Report 3 and the Clyde & Co Final Report respectively;

4. That the Council modifies the Improvement Plan (Parts 1 and 2) adopted by the Council at the Extraordinary Meeting held on 15 March 2018 to accommodate the feedback provided by SafeWork and the EPA in response to those Parts of the Improvement Plan (with the proposed modifications marked in red);

5. That the Council sends to each of SafeWork NSW and to the Environment Protection Authority (EPA), for their respective review, a copy of Parts 3 and 4 of the Improvement Plan developed by the Council and adopted in accordance with Resolution 3;

6. That the Improvement Plan (Parts 3 and 4) adopted by the Council, in accordance with

Resolution 3, be modified to accommodate any feedback in relation to those parts of the


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Improvement Plan received by the Council from SafeWork and the EPA and as a result of any further review by Council staff and consultants, and that this feedback and any modifications to the Improvement Plan be reported to the Council;

7. That the Council will act to ensure that all necessary resources are allocated to support implementation of the final adopted Improvement Plan;

8. That, in accordance with the Performance Improvement Order, the General Manager

report in writing to each successive monthly meeting of the Council held during the period of 12 months commencing from the date of this meeting (with that 12 month date recalculated from time to time to extend from the date on which the final Improvement Plan are adopted by the Council) on the Council's progress against the Improvement Plan, and specifically on the Council's progress in implementing the Improvement Plan; and

9. That the Council notes that the General Manager will undertake an internal investigation,

in response to any organisational and / or related staff matters that have been identified in the Clyde & Co investigation reports, that in the assessment of the General Manager merit such investigation.

Mayoral Minute

Reason for report The purpose of this Mayoral Minute is to present the Council with Parts 3 and 4 of the Improvement Plan (as provided in Enclosure 1), provided in response to the recommendations made in the Clyde & Co Interim Report 3 and the Clyde & Co Final Report. It should be noted that Enclosure 1 presents in four parts the various Improvement Plans developed in response respectively to the Clyde & Co Interim Reports 1, 2, 3 and the Final Report. Parts 3 and 4 of the Improvement Plan have been prepared by the Council, in consultation with appropriately qualified contractors and consultants advising the Council in relation to asbestos issues and broader issues in relation to workplace health and safety. Parts 1 and 2 of the Improvement Plan were adopted by the Council on 15 March 2018, and then sent to SafeWork NSW (SafeWork) and to the Environmental Protection Authority (EPA) for their review. The changes made as a result of feedback from these agencies are marked in red in Enclosure 1, Parts 1 and 2. Parts 3 and 4 of the Improvement Plan are now submitted for adoption by Council, ahead of being sent to SafeWork and the EPA for their review and feedback. The Council is required under the Performance Improvement Order (PIO) dated 22 January 2018, made by the Minister for Local Government in relation to the Council (see Attachment 1), to prepare Improvement Plans as follows:

"2. Following consideration of the recommendations from the investigations, Council develops Improvement Plans which include appropriate milestones. In doing so Council:

a. Utilise the services of an appropriately qualified consultant to assist Council in

assessing the adequacy or otherwise of the existing system of internal control and reporting to the governing body


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b. Provides all necessary resources to ensure the Improvement Plans are fully

implemented

c. Require for the next 12 months the General Manager to report in writing to the monthly meeting of Council on progress against the Improvement Plans

d. Engage accredited experts to provide training to the governing body on its

obligations under work health and safety, and environmental protection legislation."

"4. The Improvement Plans must be sent to SafeWork NSW and the Environmental

Protection Authority (EPA) for their review. The Improvement Plans must be modified to accommodate any feedback from those agencies."

In addition the Performance Improvement Order has the following Compliance Reporting requirements:

- Compliance Report 4: Council’s Improvement Plans along with evidence of the review

of the Improvement Plans by SafeWork NSW and EPA must be provided to the Minister within 4 weeks from date of Council's adoption of the plans.

- Compliance Report 6: Council must provide the Minister with a written report on its progress against the Improvement Plans within 2 months of the Improvement Plans being sent to the Minister.

- Compliance Report 7: Final Compliance Report - Council must provide the Minister

with a written report on its progress against the Improvement Plans within 3 months of the Improvement Plans being sent to the Minister.

As required by Action Item 2 in the PIO, the Council has considered its response to the recommendations made in the Clyde & Co Asbestos Management Interim Report 3 and the Clyde & Co Final Report. This response, as detailed in Part 3 and Part 4 of the Improvement Plan, has been shaped with input from the Council's Chief Safety Officer, Council staff, the Project Manager, Asbestos Policy, LGNSW, and Mr Ian Reynolds, Ian Reynolds & Associates Pty Ltd engaged to provide planning and governance advice. As previously reported, modifications to the adopted Improvement Plan have been proposed by each of SafeWork and the EPA. Now that the Investigators have provided all reports, as is the requirement of the PIO, the PIO requires that the adopted Improvement Plan be modified to accommodate the feedback provided by those agencies. The Improvement Plan (Parts 3 and 4), if adopted by resolution of the Council, will also be submitted to each of SafeWork and the EPA for review as required by the PIO. Those Parts of the Improvement Plan will then also be modified to accommodate any feedback received from those agencies. SafeWork and the EPA is a member of the Blue Mountains Multi-agency Asbestos management Committee established by the Council. Each agency has worked constructively with the Council and has been willing to provide advice to the Council through the management Committee. The Council therefore anticipates that each agency will provide the feedback envisaged by the PIO in response to Part 3 and Part 4 of the Council's Improvement Plan. The time within which that feedback is provided will be determined by staff availability within each agency.


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A senior staff team, led by the General Manager and the Council's Chief Safety Officer, has worked to develop the Improvement Plan including new Parts 3 and 4. The review and the refinement of the Improvement Plan will continue, having regard to the feedback received from SafeWork and from the EPA in response to Parts 3 and 4. The Council's adoption of the Improvement Plan, and the referral of each Part of the Improvement Plan for review by external agencies, is an important step. However, this Mayoral Minute also recommends that the Council ensure that the required resources (both staff and financial) are made available in the business planning and budgeting currently underway, to ensure that the Improvement Plan can be fully implemented. The commitment of these resources is also a requirement of the PIO. In that regard, Councillors will note PIO Action Item 2.b. set out in Attachment 1. The PIO also requires that for the period of 12 months, following the development of the Council's Improvement Plan, the General Manager report in writing to monthly meetings of the Council on the Council's progress in implementing the Improvement Plan. That requirement is also the subject of a recommendation in this Mayoral Minute. The period of 12 months will, in all probability, extend well beyond a strict period of one year calculated from the date of the meeting at which this Mayoral Minute is considered. As the Improvement Plan is refined and further developed, having regard to the feedback received from SafeWork and from the EPA, the Improvement Plan will return to the Council for review and adoption, in its modified form. This Mayoral Minute recommends that the General Manager's reporting obligations extend to the period of 12 months following the date on which the final Improvement Plan (reflecting feedback received from SafeWork and the EPA to all Parts of the Plan) are adopted by the Council.

Integrated Workplace Health and Safety Strategy It should be noted that work is also currently proceeding on the development of an integrated Work Health and Safety Management System and Strategy for the Council. Councillors were briefed on this preliminary work on 13 March 2018. This Project will be the subject of further briefings and reports to the Council. It will be important that the Council’s Improvement Plan both informs and is informed by the Council’s Integrated Health and Safety Management System and Strategy. This Mayoral Minute also recommends that the Council note that the General Manager will initiate an internal investigation, as described in Recommendation 10. The Council has now received all of the Reports prepared by Clyde & Co as part of the Council's independent asbestos investigation. It is therefore appropriate for the General Manager to consider the issues that have been identified by the investigators and to cause any relevant staff to be the subject of an internal investigation. The General Manager will consider the matters that will be the subject of that investigation and will, in due course, provide further information to the governing body.

Conclusion The Council has acted in accordance with the PIO to develop the Improvement Plan required by PIO Action Item 2 in response to the recommendations made in the Clyde & Co Independent Investigation Reports relating to the Council's asbestos management. The


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development of the Improvement Plan cannot be finalised until the Council had the opportunity to consider the recommendations made by the independent investigators in Interim Report 3 and the Final Report and until the feedback of each of SafeWork and the EPA in response to the various Parts of the Improvement Plan is received. Unfortunately, the time available to the Council to develop the Improvement Plan has been very limited, given that the recommendations of Interim Report 3 and the Final Report were considered by the Council on 27 March and 4 April, 2018, within 7 days of the Council receiving each Report. Nonetheless, the Council has acted in accordance with the PIO to develop the Improvement Plan, within the time available to it. The Improvement Plan is an important document that will form part of a holistic and integrated health and safety management system and strategy. Implementation of the various Parts adoption of the Improvement Plan, following review by SafeWork and the EPA, will ensure that the Council's workforce health and safety and safety management systems, and reporting mechanisms, are improved into the future. While this Mayoral Minute recommends the adoption of Parts 3 and 4 of the Improvement Plan, this Minute also confirms that the Plan will be modified to reflect the feedback received from each of SafeWork and the EPA, once they have reviewed those parts of the Improvement Plan. The Improvement Plan Parts 1, 2, 3 and 4 adopted and to be adopted by the Council, has been shaped by advice received by the Council from its external consultants and by the Council's internal assessment of the safety and reporting issues that must be addressed in the Plan. The Improvement Plan will include modifications made to incorporate the feedback received from each of SafeWork and the EPA. The adopted Improvement Plan will drive improved workplace health and safety as well as implementation of required reporting to the elected Council and other bodies. Implementation of the Improvement Plan will also assist the Council to comply with all applicable health and safety legislation and support achievement of best practice by the Council in relation to work, health and safety for Council staff and for the Blue Mountains community. ATTACHMENTS/ENCLOSURES 1 Blue Mountains Council Performance Improvement Order 18/58753 Attachment 2 Enclosure 1: Improvement Plan - In Response to BMCC

Asbestos Investigation 18/83607 Enclosure

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MINUTE BY MAYOR Item 1, Ordinary Meeting, 17.04.18 Attachment 1 - Blue Mountains Council Performance Improvement Order

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NOTICES OF RESCISSION

NOTICES OF RESCISSION Item 2, Ordinary Meeting, 17.04.18

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ITEM NO: 2 SUBJECT: RESCISSION MOTION - MINUTE 117 OF 27 MARCH 2018 COUNCIL

MEETING - "GREAT BLUE MOUNTAINS TRAIL - BLACKHEATH TO MOUNT VICTORIA - REGULATE TRAFFIC" MOVEMENTS

FILE NO: F11178 - 18/78077 Delivery Program Link

Principal Activity: Moving Around Service: Transport and Public Access

Notice of Rescission by Councillors Brown, Schreiber and Christie: 1. That Council rescinds the motion for Item 22 “Great Blue Mountains Trail - Blackheath to

Mount Victoria - Regulate Traffic Movements”, Minute no. 117, of the Council Meeting 27 March 2018 that reads as follows:

“1.That the Council notes the further consultation and concept planning investigation that has been completed on the impacts and construction of the service road in Blackheath, north-west of Radiance Avenue; 2.That the Council, as the Roads Authority under the NSW Roads Act 1993, approves the regulation of traffic on the Great Western Highway service road in Blackheath north-west of Radiance Avenue; and 3.That the Council writes to the Hon Melinda Pavey MP, Minister for Roads, Maritime and Freight, and Trish Doyle MP, Member for Blue Mountains, asking Roads and Maritime Services to investigate improvements to the intersection of the Great Western Highway and the service road at Radiance and Sunbeam Avenues at Blackheath.”

2. That the Council writes to the NSW government Department of Planning funding body for

the Trail and note that further investigations are required on the safety and amenity of the route and request a postponement of the grant of $250,000;

3. That the Council receives a report on the full cost for the currently proposed route along

the Great Western Highway including necessary safety measures to address the issues raised understood to be in the vicinity of $1.45m; and

4. That the Council proceeds with an inclusive consultation with all interested community

groups, residents, businesses and cycle groups together with Transport NSW/ Sydney Trains to explore the feasibility and costing for a safe scenic route on the western side of the railway line using Station Street and potentially the old railway cutting.

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ITEM NO: 3 SUBJECT: RESCISSION MOTION - MINUTE 141 OF 4 APRIL 2018 COUNCIL

MEETING - "PROCEDURAL - PROCEDURAL MOTION" FILE NO: F11178 - 18/80144 Delivery Program Link

Principal Activity: Civic Leadership Service: Governance and Risk

Notice of Rescission by Councillors Brown, Schreiber, Hoare and Christie:

1. That the Council rescinds the Procedural Motion, Minute no. 141, of the Council Meeting of 4 April 2018 that reads as follows:

“1. That the Council endorses all copies of the final report prepared by Clyde & Co provided to Councillors be returned before we resolve out of confidential session;

2. That the Council endorses all other reports authored by Clyde & Co and McCullough Robertson shall be handed in by Close of Business tomorrow (5 April 2018) and/or held on any other devices; and

3. That the Council endorses that any Councillor who has taken copies of those reports away from the Council Chamber shall provide a Statutory Declaration to the effect that no copies have been made nor shown to any third party.”

2. That the Council forwards a copy of Minute No. 141 to the Minister for Local Government together with the Rescission Motion noting that the motion was rescinded on the basis that it was likely to be:

• non-compliant with the Local Government Act 1993 because it prevents Councillors being able to "make considered and well-informed decisions as a member of the governing body" (LGA 232(b)) and therefore to perform their functions with due diligence;

• non-compliant with the Performance Improvement Order issued by the Minister on 22 January 2018 including: “Ongoing action and monitoring needs to be taken by Council to ensure that its governance and asbestos management practices comply with regulatory requirements" [emphasis added] and that Council "strengthen reporting to the governing body which enables Council to give leadership on implementing all recommendations arising from both investigations". (PIO, Reason for Order no. 4 and Action no.1); and

• a breach of the Council Code of Conduct that requires councillors to "exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act." (BMCC CoC 3.2);

3. That the Council endorses that all Councillors be provided with unredacted hard copies of the reports to enable them to carry out their statutory functions as part of the governing body;


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4. That the Council endorses that the redacted copies be made available to the public immediately in order to:

• comply with the commitments in the submission to the Minister of 19 December 2018 (p. 36),

• comply with Council's public statements, and • restore public confidence in BMCC; and

5. That the Council receives a full briefing by Mr Tooma on what implication there may be for senior Council staff and whether or not there is any impediment to providing an unredacted copy of the reports to the Senior Executive Team bearing in mind that the reports contain references to the Senior Executive Team.

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Documents

Business Paper Extraordinary Meeting - bmcc.nsw.gov.au · (see Attachment 1) regarding the need for the Council to develop Improvement Plans in ... the General Manager report in writing