SPECIAL COUNCIL MEETING - TUESDAY 31 MARCH 2020 - Yarra Ranges Council
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SPECIAL COUNCIL MEETING TUESDAY 31 MARCH 2020 AGENDA VISION Whether you live here or visit, you will see how much we value our natural beauty, how connected our communities are, and how balanced growth makes this the best place in the world. COUNCILLOR COMMITMENT We’ll be truthful, represent the community’s needs, be positive and responsive and always strive to do better.
NOTES FOR QUESTIONS AND SUBMISSIONS FROM THE PUBLIC (In accordance with the 2015 Council Meeting Guidelines – Public Participation) The public is invited to submit questions to the Ordinary Council Meeting by completing the form on the Council’s website; or via email. Your question must be received no later than 5.00pm on the day before the Council meeting date. Questions relating to items on the agenda, or which are the same as previous questions, will not be considered. A question will not be accepted if, in the opinion of the Chief Executive Officer, it appears to be derogatory, defamatory or embarrassing to any Councillor, member of staff, ratepayer or member of the public. A limit of one question per person per meeting will apply. Multiple parts to a question will be treated as multiple questions. A maximum of 15 minutes will be allocated to ‘Question Time’ at each meeting. As far as practicable, questions will be considered in the order they were received. Your question will be read out on the night and if possible will be answered by the appropriate officer. If a question cannot be answered on the night or if time constraints restrict the ability to read out a question, it will be answered in writing in accordance with Council’s normal correspondence procedures. You are welcome to attend the meeting and hear the answer to your question, but it is not a requirement. If your question is addressed on the night, we will provide a copy of the answer to you in writing in the days following the meeting. Submissions to Council on matters not listed on the Ordinary Council Meeting agenda will generally be heard before the items listed on the agenda. The subject should not relate to matters on the agenda for the meeting, or matters that have been already considered by Council or to operational issues. You must provide the required information at least eleven (11) days before the meeting you wish to attend to the Governance Team, to allow for consideration of your request and appropriate arrangements to be made. You should provide sufficient copies of any supporting information you want to be distributed to all Councillors and this will be circulated upon request. A copy of any supporting electronic presentation needs to be given to Governance Team by midday of the date of the meeting to ensure compatibility with Council’s computer system. Submissions in relation to a specific item on the agenda for consideration will be invited to come forward by the Chair in the order items are listed. For planning applications and policy issues, the Chair will invite one person to speak on behalf of any objectors and one person to speak on behalf of the applicant. For other matters on the agenda, only one person will be invited to address Council, unless there are opposing views. At the discretion of the Chair, additional speakers may be invited for items of large interest. Submissions must be made in a way that is respectful of Councillors and staff. You should make sure that you are present at the meeting when the item you wish to speak about is considered, as there will no opportunity for you to speak after the Chair has invited speakers and councillors have begun to consider the item. Cr Richard Higgins Mark Varmalis Mayor Acting Chief Chirnside Ward Executive Officer Kath McClusky Andrew Hilson Director Planning Director Corporate Design & Development Services Cr Len Cox Cr Tim Heenan Deputy Mayor Billanook Ward Walling Ward Cr Tony Stevenson Cr Noel Cliff Chandler Ward Streeton Ward Cr Mike Clarke Cr Fiona McAllister Lyster Ward Ryrie Ward Council Chamber Cr Jim Child Cr Terry Avery Melba Ward Layout O’Shannassy Ward Phil Murton Acting Director Environment Jane Price & Infrastructure Director Communities Public Submitter Public Submitter
INDEX ITEM PAGE NO 1. COUNCIL MEETING OPENED ................................................................................ 4 2. INTRODUCTION OF MEMBERS PRESENT ........................................................... 4 3. APOLOGIES AND LEAVE OF ABSENCE .............................................................. 4 4. DISCLOSURE OF CONFLICTS OF INTEREST ...................................................... 4 5. BUSINESS PAPER.................................................................................................. 5 CORPORATE SERVICES 5 5.1 Delegation from Council to the Chief Executive Officer 5 5.2 Council Meetings during the next 6 months 14 5.3 Leave of absence 17 6. DATE OF NEXT MEETING .................................................................................... 20
YARRA RANGES COUNCIL AGENDA FOR THE SPECIAL COUNCIL MEETING TO BE HELD ON TUESDAY 31 MARCH 2020 COMMENCING AT 7.00PM IN COUNCIL CHAMBER, CIVIC CENTRE, ANDERSON STREET, LILYDALE 1. COUNCIL MEETING OPENED 2. INTRODUCTION OF MEMBERS PRESENT 3. APOLOGIES AND LEAVE OF ABSENCE 4. DISCLOSURE OF CONFLICTS OF INTEREST In accordance with section 79 of the Local Government Act 1989. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 4
ITEM 5.1 5. BUSINESS PAPER CORPORATE SERVICES No. of Pages – 5 5.1 Delegation from Council to the Chief Executive Officer RESPONSIBLE OFFICER Director Corporate Services SUMMARY The spread of COVID-19 has led to Council considering business continuity and the means by which it can continue to perform the functions and exercise the powers conferred on it by the Local Government Act 1989 (the Act) and other Acts. This is essential for the peace, order and good government of the municipal district. Both the Local Government Act 1989 and the Local Government Act 2020 currently do not provide for anything other than Councillors to be physically present at a Council Meeting. Council has written to the Premier and the Minister for Local Government to seek an urgent review of this position. Without intervention from the State Government, and to ensure business continuity can be maintained, the Instrument of Delegation from Council to the Chief Executive Officer has been updated. The update would see the Chief Executive Officer delegated the authority to make certain decisions, after consulting with the Mayor (or in his absence or unavailability the Deputy Mayor) and gaining their agreement, that are otherwise reserved to Council,. The updated Instrument of Delegation is included at Attachment 1 to the report. RECOMMENDATION That – 1. There be delegated to the person holding the position, acting in or performing the duties of Chief Executive Officer the powers, duties and functions set out in the attached Instrument of Delegation to the Chief Executive Officer, subject to the conditions and limitations specified in that Instrument. 2. The instrument comes into force immediately the common seal of Council is affixed to the instrument. 3. On the coming into force of the instrument all previous delegations to the Chief Executive Officer are revoked. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 5
ITEM 5.1 (Cont’d) 4. The duties and functions set out in the instrument must be performed, and the powers set out in the instruments must be executed, in accordance with any guidelines or policies of Council that it may from time to time adopt. 5. It is noted that the instrument includes a power of delegation to members of Council staff, in accordance with section 98(3) of the Act. DISCLOSURE OF CONFLICTS OF INTEREST The author of this report does not have a conflict of interest in the matter. PROPOSAL Council to approve the Instrument of Delegation to the Chief Executive Officer included at Attachment 1 to the report. BACKGROUND The spread of COVID-19 has led Council to consider business continuity and the means by which it can continue to perform the functions and exercise the powers conferred on it by legislation. Both the Local Government Act 1989 and the Local Government Act 2020 currently do not provide for anything other than Councillors to be physically present at a Council Meeting. Council has written to the Premier and to the Minister for Local Government to seek an urgent review of this position and have requested the current restrictions be removed. Without intervention from the State Government, Council needs to ensure business continuity can be maintained and therefore the Instrument of Delegation from Council to the Chief Executive Officer has been updated accordingly. STRATEGIC LINKS The delegation of Council powers, duties and functions is an administrative exercise and is provided for by section 98 of the Act. CONSULTATION There has been no public consultation undertaken in respect of the recommendations in this report. FINANCIAL IMPLICATIONS The cost to prepare and adopt the Instrument of Delegation is minimal and will be met from within the current approved departmental budget. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 6
ITEM 5.1 (Cont’d) KEY ISSUES As measures are enacted by State and Federal Governments, Council must consider how it will continue to operate if holding Council meetings is not possible. Local Government Victoria has confirmed that physical attendance at Council meetings is required and Councillors cannot participate in Council meetings by electronic means. Following a resolution passed unanimously at the Council Meeting held on 24 March 2020, the Mayor has written to the Premier to request his urgent intervention to: Remove the provisions for keeping meetings open to the public in the current COVID- 19 pandemic; Confirm that the livestreaming of Council Meetings is deemed to comply with the public access requirements of both Local Government Act 1989 and the Local Government Act 2020; Remove the requirement for a Councillor to be present physically at a Council Meeting, with attendance via videoconference to be permitted as an alternative. A copy of this letter was also sent to The Hon Adem Somyurek MP, Minister for Local Government, together with the Chief Executive Officers of both the Municipal Association of Victoria and the Victorian Local Governance Association. Until such time as action is taken in respect of Council’s request, physical attendance at Council meetings is required by Councillors. Notwithstanding Government enacting further restrictions on the movement of people or on gatherings, Council must consider the possibility of the majority of Councillors being unable to attend a Council meeting because of COVID-19. The inability to raise a quorum will mean council business will not be able to proceed. In the coming months Council will need to prepare and adopt Budgets, valuations will need to be returned and major contracts may need to be executed. Council already delegates generously to the Chief Executive Officer and this ensures that the vast majority of decisions that Council can make by Resolution, the Chief Executive Officer can make as a delegate. Although the Chief Executive Officer can generally carry on the business of Council, there are a number of exclusions to the delegations. In view of the extraordinary situation faced by Council, and in the absence of the requested intervention by the Premier or Minister for Local Government, Councillors are asked to support the modification of those exclusions. The attached instrument of delegation has been prepared on the advice of Council’s legal adviser, Maddocks, with the proposed changes being shown as “track-changes”. The changes mean that the Chief Executive Officer can only exercise the power to carry on the business of Council in defined circumstances in the absence of Council meetings being held. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 7
ITEM 5.1 (Cont’d) THE PROCESS The use of the delegation in defined circumstances would be contingent upon: a state of emergency being declared under the Public Health and Wellbeing Act 2008; the Chief Executive Officer forming the opinion that any meeting of Council which would otherwise determine the issue, take the action or do the act or thing will lapse for want of a quorum; and the Chief Executive Officer consulting the Mayor (or in his absence or unavailability the Deputy Mayor) and obtaining their agreement before any decision is taken. It is envisaged that the process by which the Chief Executive Officer would exercise delegated decision-making in respect of the matters included under the “Conditions and Limitations” heading in the Instrument would be: Officer reports will continue to be prepared in Infocouncil and a list of items for decision by the Chief Executive Officer will be produced by Governance, following a pre-agreed timetable. This will be the same process currently being followed to run an Agenda for an Ordinary Council Meeting. The Chief Executive Officer will consult with the Mayor, who will then consult his fellow Councillors. It is proposed that time be given for the consultation to take place (7 calendar days). This is consistent with the current time between publishing an Agenda for an Ordinary Council meeting and the date of the meeting. After being sent to the Mayor and Councillors, a document containing reports and recommendations of matters to be determined will be published to Council’s website. This will ensure there is public transparency over the process. During the 7 calendar days afforded for consultation, the Mayor can poll his fellow Councillors, akin to holding a vote, and feedback any comments or issues to the Chief Executive Officer. After considering the views of the Mayor and Councillors, and receiving the agreement (or not as may be the case) of the Mayor, the Chief Executive Officer will determine the matter (or not as may be the case). The decision of the Chief Executive Officer in respect of each matter is to be recorded. This will look similar to the Minutes of an Ordinary Council meeting. This record of decisions taken by the Chief Executive Officer will be sent to Councillors. The record of decisions taken by the Chief Executive Officer will then be published to Council’s website, in much the same way as Council Minutes are at present. Environmental Impacts There are no environmental impacts associated with the delegation of powers by Council. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 8
ITEM 5.1 (Cont’d) Social Impacts In the event that the Chief Executive Officer is required to exercise delegated decision- making in respect of the matters included under the “Conditions and Limitations” heading in the Instrument, there would be no means of public participation, as there would have been if the decision was made at a Council Meeting. However, to ensure the transparency of the process to members of the community, details of any such proposed decisions will be published on Council’s website before any decision is made, as will the results of the decisions taken. Economic Impacts There are no economic impacts associated with the delegation of powers by Council. Risk Assessment Council’s ability to make decisions on behalf of the municipal community will be adversely affected if: further restrictions on the movement of people or on gatherings are enacted by Government; current legislative restrictions are not addressed by the Premier and/or the Minister for Local Government; and there is no agreement to the modified instrument of delegation to the Chief Executive Officer. The risk of this situation detrimentally affecting Council can be mitigated through the approval of the modified instrument of delegation to the Chief Executive Officer. If the Premier and/or the Minister for Local Government remove the requirement for physical attendance at Council meetings and allow Councillors to participate in Council meetings by electronic means, there will be a greater chance of a quorum being achieved. This means that the likelihood of a quorum being achieved will be greater and therefore limit the applicability of the power of delegation to the Chief Executive Officer. CONCLUSION Council is requested to approve the Instrument of Delegation to the Chief Executive Officer included at Attachment 1 as a contingency measure to ensure continuity of council business. ATTACHMENTS 1 Delegation from Council to the Chief Executive Officer⇩ YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 9
ITEM 5.1 ATTACHMENT 1. Delegation from Council to the Chief Executive Officer YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 10
ITEM 5.1 (Cont’d) ATTACHMENT 1. Delegation from Council to the Chief Executive Officer YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 11
ITEM 5.1 (Cont’d) ATTACHMENT 1. Delegation from Council to the Chief Executive Officer YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 12
ITEM 5.1 (Cont’d) ATTACHMENT 1. Delegation from Council to the Chief Executive Officer YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 13
ITEM 5.2 No. of Pages – 3 5.2 Council Meetings during the next 6 months RESPONSIBLE OFFICER Director Corporate Services SUMMARY The Mayor has requested that Council meetings be held on a monthly basis for the foreseeable future. Ordinary council meetings are traditionally held on the second and fourth Tuesday of each month, commencing at 7.00pm. It is now proposed to cancel the meetings currently scheduled for the second Tuesday of each month, until the end of August 2020. At this stage, Council meetings will revert to being held fortnightly from September 2020. Council will reconsider its position in respect of the schedule of ordinary meetings in line with advice on Covid-19 from State and Federal governments. In the current climate, and if permitted to do so, Council will seek to convene meetings via videoconference (or similar remote technology). All changes to the schedule and format of Ordinary Council meetings will be publicised to the community by way of public notice and on Council’s website. RECOMMENDATION That – 1. The following Ordinary Council meetings be cancelled: (a) Tuesday 14 April 2020 (b) Tuesday 12 May 2020 (c) Tuesday 09 June 2020 (d) Tuesday 14 July 2020 (e) Tuesday 11 August 2020 2. In the event the State Government removes the requirement for a Councillor to be physically present at a Council Meeting, and confirms that attendance via videoconference (or similar remote technology) is permitted as an alternative, all scheduled meetings of Council or any Special Committee during 2020 may be convened via videoconference (or similar remote technology). 3. The Chief Executive Officer be delegated authority to convene an Ordinary Meeting of Council following consultation with the Mayor (or in his absence or unavailability the Deputy Mayor) and with their agreement. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 14
ITEM 5.2 (Cont’d) 4. The Chief Executive Officer be authorised to undertake all statutory requirements that apply to meetings of Council. DISCLOSURE OF CONFLICTS OF INTEREST The author of this report does not have a conflict of interest. PROPOSAL Council to agree to cancel those Ordinary meetings currently scheduled to be held on the second Tuesday of each month until the end of August 2020. BACKGROUND The spread of COVID-19 has understandably led to Council considering business continuity and the means by which it can continue to perform the functions and exercise the powers conferred on it by the Local Government Act 1989 (the Act) and other Acts. This is essential for the peace, order and good government of the municipal district. In view of the current situation, the Mayor has requested that Council meetings be held on a monthly basis. Legislation currently requires Councillors to be physically present at a Council meeting and the Mayor has written to both the Premier and the Minister for Local Government to seek an urgent review of this position. STRATEGIC LINKS Consideration of the proposed changes to the approved schedule of Ordinary Meetings of Council has been undertaken in accordance with the Local Government Act 1989 and Council’s Meeting Procedure and Use of Common Seal Local Law 2015. CONSULTATION There has been no public consultation undertaken in respect of the recommendations within this report. If adopted, the meeting schedule will be updated, formally advertised by way of public notice and published to Council’s website. FINANCIAL IMPLICATIONS Costs associated with holding Council meetings can be met from within approved budgets. KEY ISSUES The Mayor has requested that Council meetings be held on a monthly basis. This will see those meetings currently scheduled to be held on the second Tuesday of each month being cancelled until the end of August 2020. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 15
ITEM 5.2 (Cont’d) Council will reconsider its position in respect of the schedule of Ordinary meetings in line with its business requirements and will do so with regard to advice from both State and Federal governments. Should additional Ordinary Council meetings be required during this time, it is proposed that the power to convene an Ordinary meeting be delegated to the Chief Executive Officer following consultation with the Mayor (or in his absence or unavailability the Deputy Mayor) and with their agreement. Council is awaiting direction from the State Government as to whether attendance at council meetings via videoconference (or similar remote technology) is permitted as an alternative to councillors being physically present in the room where the decision-making is taking place. Environmental Impacts There are no Environmental Impacts associated with the changes proposed to the schedule of Council meetings. Social Impacts A reduction in the number of Council meetings, to one meeting each month, will limit the ability for members of the community to participate through reducing the available opportunities to ask questions or make submissions to a meeting. Economic Impacts There are no Economic Impacts associated with the changes proposed to the schedule of Council meetings. Risk Assessment Council has the power to make changes to the approved schedule of Ordinary Council meetings, in line with the provisions of the Meeting Procedures and Use of Common Seal Local Law 2015. The power to convene an Ordinary Council meeting is reserved to Council. CONCLUSION This report proposes changes to the Ordinary Council meeting schedule for 2020. This will enable Councillors and staff to plan the consideration of business accordingly. ATTACHMENTS There are no attachments to this report. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 16
ITEM 5.3 No. of Pages – 3 5.3 Leave of absence RESPONSIBLE OFFICER Director Corporate Services SUMMARY Requests have been received from Cr Avery and Cr Cliff for a leave of absence to be granted due to the impact of the Covid-19 pandemic. In accordance with the provisions set out in section 66B of the Local Government Act 1989 (the Act), Council is requested to grant a leave of absence to Cr Avery and Cr Cliff. RECOMMENDATION That Council 1. Grant a leave of absence to Cr Avery for the period to 31 August 2020, to commence at the Special Council Meeting on 31 March 2020, in accordance with section 66B of the Act. 2. Grant a leave of absence to Cr Cliff for the period to 31 August 2020, to commence at the Special Council Meeting on 31 March 2020, in accordance with section 66B of the Act. 3. Consider whether to grant a further leave of absence to Cr Cliff and Cr Avery, if required, at the Council Meeting on 25 August 2020. DISCLOSURE OF CONFLICTS OF INTEREST The author of this report does not have a conflict of interest. PROPOSAL Council is to determine the request to grant a leave of absence to Cr Avery and Cr Cliff. BACKGROUND Requests have been received from Cr Avery and Cr Cliff for a leave of absence to be granted due to the impact of the Covid-19 pandemic. Section 69(1)(g) of the Act provides for an extraordinary vacancy to be created if the office of a Councillor becomes vacant because the Councillor is absent from 4 consecutive ordinary meetings of the Council without leave obtained from the Council. Section 66B of the Act provides for Council to grant a leave of absence to a Councillor. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 17
ITEM 5.3 (Cont’d) STRATEGIC LINKS The Councillor Expenditure Policy contains provision in respect of a leave of absence being required by a Councillor and reflects the position set out in Section 66B of the Act. CONSULTATION There has been no public consultation undertaken in respect of the recommendation in this report. FINANCIAL IMPLICATIONS There are no financial implications arising from the recommendation in the report at this stage. The Act provides that Cr Avery and Cr Cliff may continue to receive the allowance payable to a Councillor. KEY ISSUES Section 66B of the Act covers the leave of absence of a Councillor. This states that if a Councillor is required to take leave of absence, the Councillor: (a) may continue to be a Councillor but must not perform the duties or functions of a Councillor during the period of leave; (b) remains entitled to receive a Councillor allowance unless this Act otherwise provides; (c) is not entitled to be reimbursed for out‑of‑pocket expenses during the period of leave; (d) must return all Council equipment and materials to the Council for the period of leave if the Council requires. With regard to (d) above, it is not proposed to require Cr Avery or Cr Cliff return any equipment and materials to Council at this stage. Section 69(2) of the Act states that Council must not unreasonably refuse to grant leave. Should a leave of absence be granted to Cr Avery and Cr Cliff, it is proposed that the decision be subject to review on or before the Council Meeting scheduled to be held on 25 August 2020. Environmental Impacts There are no environmental impacts associated with the recommendation in this report. Social Impacts There are no social impacts associated with the recommendation in this report at this stage. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 18
ITEM 5.3 (Cont’d) Economic Impacts There are no economic impacts associated with the recommendation in this report. Risk Assessment The Act provides for Council to grant a leave of absence and explicitly states that such a request should not be unreasonably refused. Any decision to refuse the request should therefore be supported by reasons, particularly given the provisions of Section 69(1)(g) in respect of an extraordinary vacancy being created. On previous occasions where a leave of absence has been granted, it has been the practice of Council for the Mayor to stand in and deal with matters affecting a Ward when a Ward Councillor has been absent. CONCLUSION Council is asked to consider the circumstances of the requests made, together with the legal position, and grant a leave of absence to Cr Avery and Cr Cliff. ATTACHMENTS There are no attachments to this report. YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 19
6. DATE OF NEXT MEETING The next Ordinary meeting of Council is scheduled to be held on Tuesday 28 April 2020 commencing at 7:00pm, at Lilydale Senior Citizens Centre, 7 Hardy Street Lilydale. 7. CLOSE OF THE MEETING YARRA RANGES SPECIAL COUNCIL AGENDA - 31/03/2020 20
In providing for the good governance of its community, Councillors are reminded of their obligation to abide by the provisions as set within the Local Government Act 1989 and the Code of Conduct for Councillors. When attending a Council Meeting, Councillors should adhere to the procedures set out in the Meeting Procedures and Use of Common Seal Local Law. The following is a guide for all Councillors to ensure they act honestly, in good faith and in the best interests of Yarra Ranges as a whole. 1. Councillors will respect the personal views of other Councillors and the decisions of Council. 2. Councillors may publicly express their own opinions on Council matters but not so as to undermine the standing of Council in the community. 3. The Mayor is the official spokesperson for Council. 4. Councillors will incur expenditure in a responsible manner and in accordance with the Councillor Expenditure and Policy. 5. Councillors will avoid conflicts of interest and will always openly disclose any direct and indirect interests where they exist. 6. Councillors will act with integrity and respect when interacting with Council staff and members of the public. 7. Councillors will demonstrate fairness in all dealings and conduct and be open with and accountable to the community at all times. 8. Councillors will conduct themselves in a manner that does not cause detriment to Council or the Yarra Ranges community. This guidance forms part of the Code of Conduct for Councillors, adopted on 14 February 2017. The Code of Conduct is reviewed following each Council Election.
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