notice of council meeting - city of burnside...2014/10/14 · council agenda 14 october 2014 10....

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Notice of Council Meeting

NOTICE IS HEREBY GIVEN in accordance with Sections 83 and 87 of the Local Government Act 1999, that a meeting of the

COUNCIL

of the

CITY OF BURNSIDE

Will be held in the Council Chambers, Civic Centre at 401 Greenhill Road, Tusmore

on

TUESDAY 14 October 2014 at 7.00 pm

Paul Deb Chief Executive Officer

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Council Agenda 14 October 2014

2


Council Meeting

Agenda

14 October 2014 at 7.00 pm Council Chamber, 401 Greenhill Road, Tusmore

Members: Mayor David Parkin Councillors Bills, Capogreco, Cornish, Davey, Hasenohr, Lemon, Monceaux, Osterstock, Palk, Piggott, Pocock and Wilkins

1. Opening Prayer

2. Kaurna Acknowledgement

3. Apologies

4. Leave of Absence

Nil 5. Confirmation of Minutes

Recommendation: That the Minutes of the Meeting of Council held on 23 September 2014 be taken as read and confirmed.

6. Mayor’s Report

7. Reports of Members, Delegates and Working Parties

8. Deputations Nil

9. Petitions and Memorials Nil

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10. Questions (without debate) on Notice Nil

11. Consideration of Motions of which Notice has been given 11.1 28 October 2014 Council Meeting. p6

11.2 Heritage p7 11.3 Rescission Motion - Dog and Cat Management p8

12. Questions (without debate) of which Notice has not been given

13. Consideration of Motions of which Notice has not been given

14. Reports of Officers Items where there is no discussion to be had, are voted on individually at the beginning of this section of the Agenda, then all other items are debated and voted on individually. 14.1 Chief Executive Officer Report – September 2014 (Operational) p9 Attachment A p14 Attachment B p15 14.2 Kensington Community Park Incorporated (Strategic) p21 Attachment A p26 Attachment B p27 Attachment C p28 Attachment D p36 Attachment E p46 14.3 George Bolton Swimming Centre Burnside Legal Advice on Latent

Conditions (Operational) p71 Attachment A p75 14.4 Brown Hill Keswick Creek Stormwater Management Plan – Part B Report

(Strategic) p81 Attachment A (provided under separate cover) 14.5 Road Process Order and Easement Exchange – 15 And 17 Moorcroft

Court, Burnside (Operational) p89 Attachment A p92 Attachment B p93 14.6 Potential Use of Laver Reserve Water Tank for Skye Water Solution

(Strategic) p95 Attachment A p100 Attachment B p101 Attachment C p103 Attachment D p104

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15. Subsidiaries, Regional Subsidiaries and other Organisations/Entities 15.1 Eastern Waste Management Authority

Minutes of the Special Board Meeting held 29 September 2014. p107

15.2 Eastern Health Authority Nil

15.3 Highbury Landfill Authority Nil

16. Council Correspondence 16.1 Response received from Steven Griffiths MP regarding Development (Inner

Metropolitan Area Development) Variation Regulations 2013 p109 16.2 Response received from the Hon Tony Piccolo MP regarding the South

Eastern Freeway. p111

17. Other Business

17.1 Items which must be dealt with as a matter of urgency. 17.2 Matters of special interest which Members wish to draw to the attention of the

Chamber. 17.3 Application for Leave of Absence.

18. Confidential Items

18.1 Confidentiality Resolutions Annual Summary Report (Operational) p113 Attachment A p116

Pursuant to section 90(2) of the Local Government Act, 1999, the Council orders the public be excluded, with the exception of the Elected Members of the City of Burnside; the Chief Executive Officer; the General Manager Corporate Services; the General Manager Community and Development Services; the General Manager Urban Services; the Principal Governance Officer; the Executive Officers; and the Executive Assistant on the basis that it will receive and consider Item 18.1 Confidentiality Resolutions Annual Summary Report and that the Council is satisfied that pursuant to section 90(3)(a), (b), (d), (e), (f), (g), (h), (i), (j) and (k) of the Act, it contains information concerning the personal affairs of persons; information which could confer a commercial advantage; information that contains commercial information of a confidential nature (not being a trade secret, information affecting the security of the Council); information of legal obligation or duty; legal advice; information relating to actual litigation; information provided by the Minister of the Crown or another public authority; and information concerning tenders, and to do so would be contrary to the public interest.

19. Closure 5

Biskup

Cross-Out

Council Agenda Item 11.1 14 October 2014 Item No: 11.1 To: Council Date: 14 October 2014 Submitted by: Mayor Parkin Subject: 28 OCTOBER 2014 COUNCIL MEETING Attachments: Nil

Motion of Which Notice has been Given

Pursuant to Regulation 12 of the Local Government (Procedures at Meetings) Regulations, 2013, the following Notice of Motion has been submitted by Mayor Parkin. That the Council meeting on 28 October 2014 commences at 6 pm.

6

Council Agenda Item 11.2 14 October 2014 Item No: 11.2 To: Council Date: 14 October 2014 Submitted by: Councillor Wilkins Subject: HERITAGE Attachments: Nil


Pursuant to Regulation 12 of the Local Government (Procedures at Meetings) Regulations, 2013, the following Notice of Motion has been submitted by Mayor Councillor Wilkins. 1. That the copy of the papers presented at the Local Government Association of SA

Forum, “Tourism and Heritage – a Winning Combination”, held on Tuesday, 7 October 2014 at LG House, 148 Frome Street Adelaide, be received.

2. That the Council Administration review the papers presented and arrange a workshop

presentation to Elected Members, in the new Council term, by the National Trust of SA President, Professor Norman Etherington and new CEO, Dr Darren Peacock to demonstrate how Burnside Council can partner with the National Trust of SA to showcase our built and community heritage assets in the current digital and social media environment.

7

Council Agenda Item 11.3 14 October 2014 Item No: 11.3 To: Council Date: 14 October 2014 Submitted by: Councillor Pocock Subject: RESCISSION MOTION – DOG AND CAT MANANGEMENT Attachments: Nil


Pursuant to Regulation 12 of the Local Government (Procedures at Meetings) Regulations, 2013, the following Notice of Motion has been submitted by Councillor Pocock. That the following resolution C9859 from the Council meeting of 26 August 2014: 1. That the Report be received.

2. That a further report be provided after the information referred to in paragraph 9 of the

Report has been received and taken into account in the analysis of the consultation. 3. That the report and its recommendations make it quite clear as to the extent of

the model of cat management that Council will be adopting if the recommendations are accepted and that, to that end, the material in paragraph 26 of the present Report, if included in the further report be more clearly expressed in relation to the proposed long-term scope of any Council cat regime including the killing of unregistered cats.

be rescinded.

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Council Agenda Item 14.1 14 October 2014

Item No: 14.1 To: Council Date: 14 October 2014 Author: Paul Deb – Chief Executive Officer Contact: 8366 4205 Subject: CHIEF EXECUTIVE OFFICER REPORT – SEPTEMBER 2014

(OPERATIONAL) Attachments: A. September 2014 Finance Report

B. Reports Outstanding List – September 2014 Prev. Resolution: C7319, 16/9/08

Officer’s Recommendation

That the Report be received.

Purpose

1. To provide Council with a monthly report of key activities and issues, aligned to Council’s Strategic Plan ‘Be the Future of Burnside 2025’, undertaken by the Chief Executive Officer (CEO) in September 2014.

2. To provide Council with a monthly report on the financial position of the organisation.

3. To provide Council with a list of reports which have been requested by Elected Members and the status of those reports.

Strategic Plan

4. The following Strategic Community Plan provisions are relevant:

“Delivery of good governance in Council business”

“A financially sound Council that is accountable, responsible and sustainable”

“An empowered Council and Administration that is visionary and innovative in meeting community needs”

Communications / Consultation

5. Communication has been undertaken with internal and with external organisations as described in the body of the report.

Statutory

6. The following legislation is relevant in this instance:

Local Government Act, 1999

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Policy

7. There are no policy implications with the recommendation.

Risk Assessment

8. There are no risks associated with the recommendation.

Finance

9. The September 2014 Finance report is provided in Attachment A.

10. The Monthly Finance Report for September 2014 provides a year to date comparison of actual year-to-date performance to budget and the latest forecast end-of-year position. As at the 30 September 2014, Council is forecasting to make an operating deficit of $60,000 for the year. This is due to a forecast increase in depreciation for infrastructure assets, partly offset by year-to-date salary and wages savings. A comprehensive review of budget timing variations and impacting adjustments will be undertaken as part of the First Quarter Budget Review which will be presented to Council in December.

Discussion

11. The following activities, aligned to City of Burnside’s long term strategic community plan, ‘Be the Future of Burnside 2025’ have been undertaken by the CEO during September 2014.

STRATEGIC DIRECTION

ACTIVITY / MEETING

KEY ISSUES OUTCOMES

Our leading, inclusive and connected Council

Brown Hill / Keswick Creek Project Meeting

Brown Hill / Keswick Creek Stormwater Project

The CEO attended the Brown Hill / Keswick Creek Project meeting. A report on this issue is contained in the Agenda.

Reports Outstanding List

12. The Reports Outstanding List is contained in Attachment A.

13. As at the conclusion of the Council / Committee meeting held on 23 September 2014, there are 30 reports outstanding. Of the 30 reports, four will be presented in October. The balance will be presented as soon as information becomes available.

Strategic Project Update

George Bolton Swimming Centre Burnside Redevelopment

14. The project is approximately 55 per cent through the program, and as has previously been advised, inclement weather and latent conditions have had an impact on construction progress.

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15. The project is approximately four weeks behind the schedule and the culmination of these early issues has now resulted in an unrecoverable delay to the project. The Builder and Design Team are currently assessing the nett effects and working with critical contractors in an attempt to predict the likely completion date. This will become clearer once the remedial works to the pool shell are completed, expected this month.

16. A summary of the recent work on-site includes:

16.1. The new raft slab to the plant room building area has been poured and the associated in-ground conduits and pipework have been installed.

16.2. The fabrication of the plant room precast walling and structural steelwork has been completed offsite for a mid-October erection.

16.3. The wet deck gutters to the main pool has been poured and completed, while the remedial works repair and waterproofing to the existing pool base continues, to enable the commencement of the tiling.

16.4. The Learners Pool wet deck gutters have now also been poured. The repair works to the existing northern stair area has been completed and rework to base stair concrete underway.

16.5. The installation of all external pipeworks has been completed and the external paving areas is being prepared and filled to level, to enable the commencement of the new paving installation and access for tiles around the pools.

16.6. The lining to all wet areas within the main building has been installed, with the floors now reinstated. The new store areas to the meeting room is being constructed and should be completed in October.

17. The project was recently discussed in a Council Report and a new budget was endorsed to facilitate the variations encountered, predominantly from latent conditions. The project is within the amended project budget.

Glenunga Reserve Community Hub

18. Following a comprehensive tender process, Mossop Construction and Interiors has been contracted to undertake the construction of the Hub.

19. Work commenced on 7 October and included establishing site fencing, temporary site offices and on-site parking for construction vehicles.

20. As previously advised, the construction of the main building, plaza and recreational upgrades will be staged to minimise disruption to existing sporting clubs and existing park users.

21. Construction works are expected to be undertaken over a 12 month period. The works have been programmed to minimise impacts to the local residents of L’Estrange, Conyngham, Windsor Streets, Bevington Road, and, for the Glenunga International High School.

22. The site, located between the Margaret Bond and Webb Ovals, will soon be cleared including the demolition of existing sports club rooms, associated

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buildings and the unavoidable removal of some trees. More trees will be planted than removed in accordance with the Glenunga Reserve Tree Management Plan.

23. Normal construction hours are Monday to Friday 7 am to 6 pm. Out of hours works will be avoided, however, should these be required, residents adjacent the construction site will be notified in advance.

24. Access and use of the Margaret Bond and Webb Ovals will be maintained throughout construction through a staged construction process and there will be no impact to on-road parking for oval users during construction.

25. Details on the adequacy of the project budget will be known once the building construction contract is finalised.

26. The project is approximately 10 per cent through the program and on track.

27. 180 Sports and Leisure Solutions was engaged to undertake the Governance Review for the management and operation of the new Community Hub building. The consultants will meet with the relevant project groups and key users as part of the review, and management options will be presented to Council following the 2014 Local Government elections for further consideration.

Staff Numbers

28. As at 30 September 2014, the current Full Time Equivalent (FTE) staff count is 161.3 with 5.0 FTE vacancies (Manager Library, Learning and Volunteers; Team Leader Arboriculture; Finance Business Partner; Project Officer (Asset Services); and Team Member City Maintenance).

Work Health and Safety

29. Council’s Executive and Work Health and Safety (WHS) Committee has over the past two months undertaken a ‘Management Review’ of the current work health and safety management system in preparation for the creation of the 2014/2015 WHS and Injury Management (WHS&IM) Plan. The outcome of the review highlighted that whilst much progress had been made in continuously improving the WHS Management system, three programs from the 2013/2014 WHS&IM Plan need to be completed – Incident and Hazard reporting and investigation; Management of Alcohol and Other Drugs; and Management of Aggression and Violence Towards Staff.

30. With these three programs as the basis of the WHS&IM Plan moving forward, consultation with relevant internal stakeholders has now bought the planning process to a completion with the Plan approved by the Executive on 27 August 2014 and the WHS Committee on 28 August. The final signed Plan is currently being distributed within the Administration and will be monitored with the WHS Coordinator’s monthly report to the Executive and Management Group.

Notifiable or Dangerous Incidents (as defined by the WHS Act)

31. No incidents and subsequent notifications to Safework SA have occurred during the report period.

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Significant General Insurance Claims

32. Council’s public liability insurers recently settled a damages claim related to Skye Cellars and storm water runoff. Council has made payment to the insurers of the policy excess of $3,750. This claim arose from an allegation that Council failed to follow up and resolve in a timely manner a complaint of property water damage as a result of storm water runoff originating from a single property on Patrick Auld Drive. Changes to the recording, tracking and close out of customer requests as a result of the introduction of the new CRM system in early 2013 should prevent similar failures to address customer requests in the future. Engineering Services is also writing to the relevant properties in Patrick Auld Drive to remind them of their ongoing responsibility for the appropriate management of stormwater runoff originating from their properties.

Risks Issues (with a Residual or Remain Extreme or High Level)

33. Nil to report.

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Adopted Actual Adopted Proposed

Budget Result Budget variations Forecast

$'000 $'000 $'000 $'000 $'000

Note Note

Operating Income34,668 34,766 34,726 40 34,766

810 810 3,598 - 3,598 842 1,149 2,652 40 2,692

36,319 36,725 40,977 80 (c) 41,057

10,810 10,438 40,974 143 (d) 41,117 25,509 26,288 3 (63) (60)

1,568 (a) 656 6,817 119 (e) 6,936 1,975 1,975 7,899 220 (f) 8,119

- - - - - (406) (1,319) (1,082) (101) (1,183)

3,839 (a) 398 10,307 535 (e) 10,842

100 100 295 - 295 - - - - -

3,739 298 10,012 535 10,547

- - - - -

22,177 27,308 (8,927) (497) (9,425)

25,609 26,388 298 (63) 235

(b) 778

Notes

Year to Date Actual vs Budget

Full Year Budget vs Forecast

(e) Additional Renewal/Replacement Capital expenditure approved by Council in August 2014 (C9824): - Improvements to Pepper St Art Gallery - Carry over from 2013/14 - $119k Additional New/Upgraded Capital expenditure approved by Council in August 2014 (C9824): - Burnside Swimming Centre Project - Refurbishment - additional $497k - Newlands Park Shed & Netting - $38k

(f) Forecast depreciation adjustment as highlighted in (d) above.

- Net Operating Surplus / (Deficit)

Year to date budget to actual variance

(a) Capital expenditure is $4.4m behind year-to-date budget mainly due to the Burnside Pool project $3.4m. Work on the project is currently four weeks behind schedule and a number of project variations are still subject to further negotiation. The September project invoice (approx $1m or 1/3rd of the underspend) has not been received. Other timing underspends include Road Resurfacing program $0.3m and other capital projects $0.7m.

(b) Favourable Operating Surplus variance of $778k for the year to date is mainly due to higher than budgeted Rates of $99k, Statutory Charges of $87k, User Charges of $125k, Reimbursements and Other Revenues of $95k, and lower than anticipated Maintenance and Contractor costs of $253k and Employee and Other costs of $119k.

(c) Rates revenue $40k and revenue from Parking Fines $40k are expected to be higher than budget for 2014/15

(d) Increased depreciation $220k as a result of recent asset review, and forecast increase in Emergency Services Levy for 2014/15 - $23k, offset in part by lower than budget salaries and wages of $100k due to unfilled positions

New and Upgraded Assets

Less: Proceeds from Sale of Surplus Assets

Net Outlays on New and Upgraded Assets (c)

Capital Reserves (d)

Net Lending / (Borrowing) for the Financial Year

Statement of Comprehensive Income

Less: Depreciation, Amortisation & Impairment

Less: Proceeds from Sale of Replaced Assets

Net Outlays on Existing Assets (b)

Net Outlays on New and Upgraded Assets

Capital Expenditure on New and Upgraded AssetsLess: Amounts Received Specifically for

Less: Operating Expenses

Operating Surplus / (Deficit) (a)

CAPITAL ACTIVITIES:

Net Outlays on Existing Assets

Capital Expenditure on Renewal and Replacement of Existing Assets

Year to Date Full Year

OPERATING ACTIVITIES:

Rates IncomeGrants IncomesOther Operating Income

CITY OF BURNSIDE

MONTHLY FINANCE REPORTAS AT 30 SEPTEMBER 2014

FOR THE YEAR ENDING 30 JUNE 2015

2014/15 2014/15

14

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sal

e, s

ubje

ct to

the

Cou

ncil

Com

mun

ity L

and

revo

catio

n pr

oces

s, o

r lon

ger t

erm

leas

e to

the

Dep

artm

ent,

and

a fu

rther

repo

rt be

pre

sent

ed to

Cou

ncil

deta

iling

the

optio

ns a

nd th

e im

pact

on

the

broa

der c

omm

unity

.

GM

US

Dec

201

4 Th

e Ad

min

istra

tion

has

met

with

Ren

ewal

SA

rega

rdin

g th

e si

te

in th

e co

ntex

t of t

he

poss

ible

acq

uisi

tion

of

Con

stab

le H

yde

Res

erve

. A re

port

will

be p

rese

nted

to

Cou

ncil

in D

ecem

ber

2014

pro

vidi

ng a

n up

date

.

16

NO

M

TG

DAT

E SU

BJE

CT

OFF

ICER

D

UE

DAT

E TA

RG

ET

DAT

E ST

ATU

S

11.

24/9

/13

Reg

iona

l Har

d W

aste

Col

lect

ion

Serv

ice

for t

he E

aste

rn

Reg

ion

Allia

nce

(C94

21) –

Tha

t a R

epor

t be

pres

ente

d to

C

ounc

il in

Nov

embe

r 201

3 de

tailin

g th

e re

sults

and

out

com

es o

f th

e ‘R

eque

st fo

r Inf

orm

atio

n’ p

roce

ss a

nd a

pro

pose

d dr

aft

Reg

iona

l Har

d W

aste

Pro

ject

Com

mun

ity C

onsu

ltatio

n an

d Im

plem

enta

tion

Plan

.

GM

US

Feb

2015

R

epor

t to

Cou

ncil

in

Febr

uary

201

5.

12.

22/1

0/13

D

epar

tmen

t for

Edu

catio

n an

d C

hild

Dev

elop

men

t –

Kin

derg

arte

n Le

ases

(C94

57) –

Tha

t the

mat

ter o

f aut

horit

y fo

r th

e le

ases

be

cons

ider

ed a

t a fu

ture

Cou

ncil

mee

ting.

GM

US

TB

A

Wai

ting

on S

A G

over

nmen

t.

13.

22/1

0/13

La

nd P

urch

ase

at C

onst

able

Hyd

e M

emor

ial G

arde

ns (C

9467

) –

That

a fu

rther

Rep

ort b

e pr

ovid

ed to

Cou

ncil

– at

a s

peci

al

mee

ting

if re

quire

d –

to e

nsur

e th

at th

e fin

al d

ecis

ion

is m

ade

with

in th

e tim

e co

nstra

ints

set

by

Ren

ewal

SA.

GM

US

Dec

201

4

Rep

ort t

o C

ounc

il in

D

ecem

ber 2

014.

14.

28/1

/14

Her

itage

Res

tora

tions

and

Ale

xand

ra A

venu

e, R

ose

Park

War

M

emor

ial S

tatu

e (C

9568

) – T

hat t

he re

com

men

datio

ns

conc

erni

ng th

e m

odifi

catio

n, re

pair

and/

or re

stor

atio

n of

Ros

e Pa

rk A

lexa

ndra

Ave

nue

War

Mem

oria

l Sol

dier

Sta

tue

not b

e fin

alis

ed u

ntil

such

tim

e as

Adm

inis

tratio

n re

ceiv

e an

inte

rim re

port

from

Her

itage

SA

conc

erni

ng a

ny p

oten

tial c

onse

rvat

ion

mea

sure

s th

at m

ay b

e re

quire

d. T

hat A

dmin

istra

tion

pres

ent t

o C

ounc

il a

repo

rt, a

s so

on a

s pr

actic

al, o

n th

e ou

tcom

es

asso

ciat

ed w

ith th

ose

inve

stig

atio

ns.

GM

US

Dec

201

4 R

epor

t to

Cou

ncil

by

Dec

embe

r 201

4 af

ter

cons

ider

atio

n of

C

9699

how

ever

, the

Ad

min

istra

tion

is s

till

awai

ting

advi

ce fr

om

Her

itage

SA.

15.

28/1

/14

Ros

e Pa

rk A

venu

e of

Hon

our S

oldi

er M

emor

ial T

ree

Iden

tific

atio

n Pl

inth

s (C

9569

) – T

hat A

dmin

istra

tion

pres

ent t

o C

ounc

il a

repo

rt on

the

outc

omes

of i

nves

tigat

ions

und

erta

ken

by

Her

itage

SA

with

a p

lan

to c

orre

ct in

cons

iste

ncie

s of

the

Mem

oria

l’s S

oldi

er n

ame

inde

x pl

aque

s an

d if

nece

ssar

y, p

ropo

se

a bu

dget

allo

catio

n fo

r con

side

ratio

n in

the

2014

/15

Annu

al

Busi

ness

Pla

nnin

g cy

cle.

GM

US

Dec

201

4 R

epor

t to

Cou

ncil

by

Dec

embe

r 201

4 af

ter

cons

ider

atio

n of

C

9699

how

ever

, the

Ad

min

istra

tion

is s

till

awai

ting

advi

ce fr

om

Her

itage

SA

16.

25/2

/14

Ken

sing

ton

Com

mun

ity P

ark

Inco

rpor

ated

(C96

06) –

Tha

t in

resp

ect o

f the

Lei

sure

Cen

tre L

ease

, the

Adm

inis

tratio

n al

so

repo

rt as

to th

e vi

abilit

y of

var

ying

the

Leis

ure

Cen

tre L

ease

to

rem

ove

the

role

of t

he C

omm

ittee

env

isag

ed th

ereu

nder

by

way

of

inco

rpor

atin

g ad

ditio

nal o

blig

atio

ns u

pon

the

Scho

ol a

nd, a

s ap

prop

riate

, to

incl

ude

prov

isio

ns in

the

draf

t Dee

d.

GM

US

Oct

201

4 R

epor

t to

Cou

ncil

by

Oct

ober

201

4.

17

NO

M

TG

DAT

E SU

BJE

CT

OFF

ICER

D

UE

DAT

E TA

RG

ET

DAT

E ST

ATU

S

17.

22/4

/14

Roa

d C

losu

re–

Bon

vue

Aven

ue, (

8 La

scel

les

Aven

ue)

Bea

umon

t (O

pera

tiona

l) (C

9693

) – T

hat t

he A

dmin

istra

tion

dete

rmin

e, in

con

junc

tion

with

the

owne

rs o

f 8 L

asce

lles

Aven

ue,

Beau

mon

t, th

e re

ques

ted

size

of l

and

for t

rans

fer a

nd re

port

to

Cou

ncil

the

size

and

ass

ocia

ted

valu

atio

n fo

r con

side

ratio

n.

GM

US

Dec

201

4 Aw

aitin

g th

e ow

ner’s

re

spon

se.

18.

27/5

/14

Mag

ill V

illag

e M

aste

rpla

n Ad

optio

n (S

trat

egic

) (C

9736

) – T

hat

a re

port

is p

rese

nted

to C

ounc

il no

late

r tha

n 28

Feb

ruar

y 20

15

prov

idin

g an

upd

ate

of p

rogr

ess

and

reco

mm

enda

tions

to C

ounc

il ah

ead

of th

e pr

epar

atio

n of

the

Long

Ter

m F

inan

cial

Pla

n an

d th

e 20

15/2

016

Annu

al B

usin

ess

Plan

.

GM

US

Feb

2015

O

n tra

ck.

19.

10/6

/14

East

ern

Hea

lth A

utho

rity

Annu

al B

usin

ess

Plan

and

Bud

get

for 2

014/

15 (O

pera

tiona

l) (1

4.11

) (C

9749

) – T

hat C

ounc

il re

ques

ts th

e C

hief

Exe

cutiv

e O

ffice

r of t

he E

HA

and

the

Boar

d of

EH

A to

und

erta

ke th

e be

nchm

arki

ng o

f the

EH

A’s

serv

ices

ag

ains

t oth

er e

nviro

nmen

tal h

ealth

pro

vide

rs, i

nclu

ding

in-h

ouse

pr

ovis

ion

by th

e co

nstit

uent

Cou

ncils

, and

wor

k w

ith th

e C

onst

ituen

t Cou

ncils

as

requ

ired

in o

rder

to re

port

back

to th

e C

onst

ituen

t Cou

ncils

on

thei

r fin

ding

s.

GM

CD

S

TBA

Aw

aitin

g co

nfirm

atio

n fro

m E

HA

on th

e tim

elin

es to

com

plet

e th

e be

nchm

arki

ng

exer

cise

.

20.

24/6

/14

Polic

y R

evie

w –

Dra

ft En

viro

nmen

t and

Bio

dive

rsity

Pol

icy

for E

ndor

sem

ent a

nd W

orki

ng D

raft

Envi

ronm

ent a

nd

Bio

dive

rsity

Str

ateg

y fo

r Inf

orm

atio

n (S

trat

egic

) (C

9774

) –

That

a fu

rther

repo

rt is

pre

sent

ed to

Cou

ncil

on th

e ou

tcom

es o

f th

e pu

blic

con

sulta

tion

and

that

a fi

nal d

raft

Envi

ronm

ent a

nd

Biod

iver

sity

Stra

tegy

be

pres

ente

d fo

r con

side

ratio

n an

d ad

optio

n.

GM

US

Ja

n 20

15

O

n tra

ck.

21.

22/7

/14

Geo

rge

Bol

ton

Swim

min

g C

entr

e B

urns

ide

Proj

ect B

udge

t In

form

atio

n (O

pera

tiona

l) (C

9802

) – T

hat A

dmin

istra

tion

prov

ide

a re

port

to th

e ne

xt c

ounc

il m

eetin

g id

entif

ying

the

capi

tal p

roje

cts

whi

ch c

ould

be

defe

rred

to o

ffset

this

hug

e im

post

in th

is c

urre

nt

budg

et y

ear a

nd th

at in

due

cou

rse

(but

at t

he e

arlie

st a

ppro

pria

te

time)

the

CEO

repo

rt to

Cou

ncil

on re

spon

sibi

lity

for l

aten

t def

ect

mat

ters

that

hav

e ar

isen

afte

r rel

ease

of t

he te

nder

doc

umen

ts,

incl

udin

g id

entif

ying

pos

sibl

e re

med

ies

avai

labl

e to

Cou

ncil

to

reco

ver d

amag

es o

r com

pens

atio

n.

GM

US

Oct

201

4 R

epor

t to

Cou

ncil

in

Oct

ober

201

4.

18

NO

M

TG

DAT

E SU

BJE

CT

OFF

ICER

D

UE

DAT

E TA

RG

ET

DAT

E ST

ATU

S

22.

22/7

/14

Civ

ic C

entr

e M

aste

r Pla

n –

Stag

e 1

(Ope

ratio

nal)

(C98

03) –

That

a fu

rther

repo

rt be

pro

vide

d to

Cou

ncil

in 2

015

deta

iling

the

poss

ible

reco

nfig

urat

ion

optio

ns o

f the

Civ

ic C

entre

to im

prov

e th

e fu

nctio

nalit

y of

the

cust

omer

ser

vice

and

pub

lic a

reas

to c

ater

for

futu

re s

ervi

ce p

rovi

sion

to th

e co

mm

unity

incl

udin

g as

soci

ated

co

sts.

GM

US

Ju

n 20

15

O

n tra

ck.

23.

22/7

/14

Fund

ing

for B

eula

h R

oad

Bic

ycle

Rou

te E

nhan

cem

ents

(O

pera

tiona

l) (C

9810

) – T

hat f

ollo

win

g co

nsul

tatio

n th

at a

Rep

ort

be p

rese

nted

to C

ounc

il w

ith th

e fin

al d

esig

ns o

f tra

ffic

calm

ing

cons

iste

nt w

ith e

nhan

cing

bic

yclin

g sa

fety

on

Beu

lah

Roa

d.

GM

US

Ja

n 20

15

O

n tra

ck.

24.

26/8

/14

Bev

ingt

on R

oad,

Gle

nung

a (C

9849

) – T

hat C

ounc

il as

sess

the

pote

ntia

l at t

he in

ters

ectio

n of

Bev

ingt

on R

oad

and

Portr

ush

Roa

d fo

r lin

e m

arki

ng to

pro

vide

two

lane

s, o

ne tu

rnin

g le

ft an

d on

e tu

rnin

g rig

ht.

GM

US

O

ct 2

014

O

n tra

ck.

25.

26/8

/14

Cat

Man

agem

ent B

y-La

w C

omm

unity

Con

sulta

tion

(Ope

ratio

nal)

(C98

59) –

Tha

t a fu

rther

repo

rt be

pro

vide

d af

ter

the

info

rmat

ion

refe

rred

to in

par

agra

ph 9

of t

he R

epor

t has

bee

n re

ceiv

ed a

nd ta

ken

into

acc

ount

in th

e an

alys

is o

f the

con

sulta

tion

and

that

the

repo

rt an

d its

reco

mm

enda

tions

mak

e it

quite

cle

ar a

s to

the

exte

nt o

f the

mod

el o

f cat

man

agem

ent t

hat C

ounc

il w

ill be

ad

optin

g if

the

reco

mm

enda

tions

are

acc

epte

d an

d th

at, t

o th

at

end,

the

mat

eria

l in

para

grap

h 26

of t

he p

rese

nt R

epor

t, if

incl

uded

in th

e fu

rther

repo

rt be

mor

e cl

early

exp

ress

ed in

rela

tion

to th

e pr

opos

ed lo

ng-te

rm s

cope

of a

ny C

ounc

il ca

t reg

ime

incl

udin

g th

e ki

lling

of u

nreg

iste

red

cats

.

GM

CD

S

D

ec 2

014

On

track

.

26.

26/8

/14

Sign

ifica

nt T

rees

in th

e B

urns

ide

(City

) Dev

elop

men

t Pla

n (O

pera

tiona

l) (C

9867

) – T

hat a

n in

vest

igat

ion

be c

omm

ence

d im

med

iate

ly h

avin

g du

e re

gard

to th

e co

ntin

uing

loss

of

subs

tant

ial t

rees

with

fund

ing

for t

he s

ite b

y si

te in

spec

tion

audi

t to

be p

rovi

ded

thro

ugh

the

next

qua

rterly

bud

get r

evie

w.

GM

CD

S

O

ct 2

014

On

track

.

27.

9/9/

14

Ced

ar A

venu

e, G

lenu

nga

– Tr

ees

(C98

76)

That

the

Adm

inis

tratio

n co

nsul

t with

the

resi

dent

s of

Ced

ar

Aven

ue, G

lenu

nga,

in re

latio

n to

the

type

of r

epla

cem

ent t

ree

to

be p

lant

ed a

djac

ent 1

3 C

edar

Ave

nue

and

info

rm C

ounc

il of

the

resu

lts, p

rior t

o th

e re

plac

emen

t of t

he tr

ee.

GM

US

R

esid

ents

con

sulte

d.

Tree

will

be re

mov

ed

in th

e ne

w p

lant

ing

seas

on 2

015.

19

NO

M

TG

DAT

E SU

BJE

CT

OFF

ICER

D

UE

DAT

E TA

RG

ET

DAT

E ST

ATU

S

28.

9/9/

14

Priv

atel

y Fu

nded

Dev

elop

men

t Pla

n Am

endm

ents

(O

pera

tiona

l) (C

9892

) – T

hat t

he A

dmin

istra

tion

pres

ents

a

Priv

atel

y Fu

nded

Dev

elop

men

t Pla

n Am

endm

ent P

olic

y to

C

ounc

il fo

r con

side

ratio

n fo

r ado

ptio

n.

GM

CD

S

Dec

201

4

Rep

ort t

o C

ounc

il in

D

ecem

ber 2

014.

29.

9/9/

14

Land

Acq

uisi

tion

– C

onst

able

Hyd

e M

emor

ial G

arde

n (S

trat

egic

) (C

9901

) – T

hat a

repo

rt be

pre

sent

ed to

Cou

ncil

in

Dec

embe

r 201

5 se

ekin

g ap

prov

al to

com

men

ce th

e C

omm

unity

La

nd re

voca

tion

proc

ess

for 7

0A H

ewitt

Ave

nue,

Ros

e Pa

rk

(Ros

e Pa

rk P

resc

hool

); 1A

Gul

fvie

w A

venu

e, S

t Geo

rges

(JB

Cle

land

Kin

derg

arte

n); a

nd 4

1 G

rant

Ave

nue,

Ros

e Pa

rk (G

urne

y R

oad

Gar

den

– va

cant

land

) with

the

aim

of t

rans

ferr

ing

thes

e pr

oper

ties

to th

e D

epar

tmen

t for

Edu

catio

n an

d C

hild

D

evel

opm

ent i

n or

der t

o ac

quire

the

Con

stab

le H

yde

Mem

oria

l G

arde

n.

GM

US

Dec

201

4 R

epor

t to

Cou

ncil

in

Dec

embe

r 201

4.

30.

23/9

/14

Har

d W

aste

Col

lect

ion

Serv

ice

– R

esul

ts o

f Com

mun

ity

Con

sulta

tion

(Ope

ratio

nal)

(C99

17) –

Tha

t a fu

rther

repo

rt be

pr

esen

ted

to C

ounc

il in

Feb

ruar

y 20

15 fo

r a d

ecis

ion

rega

rdin

g a

prop

osed

ser

vice

mod

el fo

r the

201

5/16

har

d w

aste

col

lect

ion

serv

ice.

GM

US

Fe

b 20

15

O

n tra

ck.

20

Council Agenda Item 14.2 14 October 2014 Item No: 14.2 To: Council Date: 14 October 2014 Author: Barry Cant – Strategic Project Officer Divisional Manager Graeme Brown – General Manager, Corporate Services Contact: 8366 4223 Subject: KENSINGTON COMMUNITY PARK INCORPORATED (STRATEGIC) Attachments: A. Letter dated 23 May 2014 from Kensington Community Park

Inc. B. Letter dated 13 June 2014 from Pembroke School Council C. Deed of Surrender Underlease D. Deed of Assignment of Lease E. Kensington Community Leisure Centre and Olympic Sports

Field Clubrooms Tripartite Deed Prev. Resolution: C9445, 22/10/13

C9606, 25/2/14


1. That the Report be received.

2. That in respect of the management and governance arrangements between the City of Burnside, Kensington Community Park Inc. and Pembroke School, that Council notes:

2.1. that Kensington Community Park Inc. has voluntarily agreed to deregister in accordance with section 43A of the Associations Incorporation Act 1985;

2.2. that Pembroke School has agreed to enter into direct arrangements with the City of Burnside in relation to the areas of Kensington Oval which are the subject of leases from Council (the Leisure Centre and the building beneath the grandstand, and the ancillary matters with respect to these – for example, the car park area);

2.3. that the Administration will work with Kensington Community Park Inc. and Pembroke School to manage the legal requirements to facilitate 2.1 and 2.2; and

2.4. the draft legal documents that have been prepared by Council’s legal representatives in consultation with Kensington Community Park Incorporated and Pembroke School in order for the Administration to facilitate 2.3.

Purpose

1. The purpose of this report is to update Council on the status of the activities surrounding Council Resolution C9606 where the long-term management of the Kensington Oval facilities becomes subject to a direct relationship by way of a lease between Pembroke School and the Council with the deregistration of Kensington Community Park Inc. (KCP).

Statutory

2. The following Strategic Plan is relevant:


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Council Agenda Item 14.2 14 October 2014 Communications/Consultation

3. The following communication / consultation has been undertaken:

3.1. KCP.

3.2. Pembroke School.

3.3. Kelledy Jones Lawyers to advise on legal matters.

3.4. Council’s members on the KCP Committee (Councillors Palk and Davey) have been advised of the contents of this Report.

3.5. Council through a number of previous Reports.

Statutory

4. The following legislation applies:

Local Government Act 1999

Associations Incorporation Act 1985

Real Property Act 1886

Policy

5. There are no policy implications or requirements associated with this recommendation.

Risk Assessment

6. There are no major risks associated with the recommendation. All relevant parties have agreed on the matter at hand.

Finance

7. There are minor financial implications for the City of Burnside in respect of this recommendation regarding legal costs for advice and executing the contractual documentation. All costs are managed through existing operational funding.

Discussion

Background

8. At the meeting of 22 October 2013, Council resolved (C9445):

Council consider whether the arrangements in relation to the areas of Kensington Oval which are the subject of leases from Council (the “Leisure Centre” and the building beneath the grandstand, and the ancillary matters with respect to these – for example, the car park area) which fall within the jurisdiction of Kensington Community Park Inc might be better dealt with by way of a Deed between Council and Pembroke School Inc or in some other way) in substitution for the role played by Kensington Community Park Inc, including the winding up of Kensington Community Park Inc; and

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The CEO:

Forthwith inform Kensington Community Park Inc and Pembroke School Inc of this resolution;

promptly explore this matter with appropriate parties, including Councillors Davey and Palk, Kensington Community Park Inc, Council’s legal advisers and Pembroke School Inc; and

report to Council expeditiously

9. An updated Report was considered at the meeting of 25 February 2014, and it was resolved (C9606):


2. That in respect of the future management of the Clubrooms, the Council resolves:

2.1 That the Council’s preferred course is to pursue option 2 as outlined in the Council agenda 25 February 2014 report titled “Kensington Community Park Incorporated”; and

2.2 That the Administration engage with Kensington Community Park Inc and Pembroke School to ascertain whether the parties agree to pursue option 2 and a report be brought back to the Council to advise the outcome of those discussions. If relevant, the report is to include recommendations regarding proposed variations to the Clubroom Lease and be accompanied by a draft Deed (with attachments for assignment and surrender) for consideration; and

2.3 That in engaging with Kensington Community Park Inc. (KCP) for the purposes of 2.2 above, the Administration ascertain whether, in the event option 2 is to be pursued by the parties, KCP is agreeable to a voluntary winding up and if so, for the Deed to include provision in this regard.

3. That in respect of the Leisure Centre Lease, the Administration also report as to the viability of varying the Leisure Centre Lease to remove the role of the Committee envisaged thereunder by way of incorporating additional obligations upon the School and, as appropriate, to include provisions in the draft Deed.

10. ‘Option 2’ as referred to in the Council resolution pertains to KCP’s interest in the Clubroom Lease which is to be assigned to the School contemporaneously with KCP and the School surrendering the sub-lease (ie which will enable the sub-lease to be removed from the title).

11. Council’s lawyers advised that the resolved Option can be most effectively achieved through an overarching tripartite Deed, which will include the necessary protections for the parties and the required assignment.

12. Following the February 2014 resolution of Council, there have been several meetings between representatives of Council, Kensington Community Park Incorporated, and Pembroke School to arrive at a mutually agreed position, which is consistent with Council’s resolution.

13. As identified in the February 2014 Report, the Deed will be between the Council, the School and KCP and makes provision for the following:

13.1. KCP and the School agreeing to the surrender of the sub-lease and taking necessary steps to achieve this;

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13.2. KCP, the Council and the School agreeing to a memorandum of assignment (in agreed form) being executed between the School and KCP (with the consent of the Council) to assign KCP’s rights and interests under the Clubrooms Lease to the School and to establish the primary relationship of lessor/lessee between the Council and the School; and

13.3. once the Clubroom Lease has been assigned to the School, the School agreeing to execute a deed of variation (again, in agreed form if there are to be variations) to vary the terms of the Clubroom Lease.

14. In May 2014, Simon Tonkin, Chair Kensington Community Park Inc., wrote to Elizabeth Game, Chair Pembroke School Council to advise that KCP had resolved to accept the assignment of the (1998) clubroom lease directly to Pembroke School; to accept the removal of KCP’s role in relation to the (1986) Kensington Community Leisure Centre (KCLC) lease; and as a consequence of the previous two matters, to voluntarily wind up the KCP.

15. Provided in Attachment A is the 23 May 2014 letter between KCP and Pembroke, advising of the above.

16. Attachment B is a letter dated 13 June 2014 from Pembroke School Council to The City of Burnside advising of the following resolution made at its meeting on 26 May 2014:

“…resolved in principle to implement Option 2 of the proposal subject to the school being satisfied with the proposed Deed of Assignment”

17. Further discussions took place between all parties (and their legal representations), and the following attached documents have now been unanimously agreed to:

17.1. Attachment C – Deed of Surrender of Underlease (between KCP and Pembroke);

17.2. Attachment D – Deed of Assignment of Lease; and

17.3. Attachment E – Kensington Community Leisure Centre and Olympic Sports Field Clubrooms Tripartite Deed.

18. KCP has advised the Administration that it is seeking to commence the de-registration process on 15 October 2014, to enable Council to enact the relevant documents.

19. Once the Deed has been executed by the parties as above, it could operate with immediate effect or from a later date, but upon the basis of each step being contemporaneous. This will result in a lease between the Council and School in respect of the Clubrooms and eliminate the need for KCP to be involved in any form in the management of the site. Importantly, since both the Clubrooms Lease and sublease are registered, the above steps will necessarily involve lodgment of the associated documentation with the Lands Title Office and will incur registration fees.

20. Since its incorporation, KCP has been performing the function of ‘the Committee’ as envisaged under the Leisure Centre Lease. That said, since KCP is not a party to the Leisure Centre Lease it does not have any proprietary interests in the Leisure Centre. This means that KCP does not have capacity to grant a licence or permit for the use of the Leisure Centre. Accordingly, all arrangements that do exist or which are proposed must be between the School and the relevant licensee.

21. As of 1 October 2013, the YMCA Inner North East Adelaide replaced the Adelaide YMCA as licensee of the Leisure Centre. A licence agreement regulating this arrangement is proposed to be executed in the near future, again between KCP, the School and the YMCA Inner North East Adelaide.

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Council Agenda Item 14.2 14 October 2014 22. It is relevant to note that the Leisure Centre Lease provides that the School cannot,

without the Council’s consent, assign, underlet or part with possession or use of the Leisure Centre or any part of it. This means that the execution of a new licence between the school and YMCA Inner North East Adelaide is subject to the Council’s consent (i.e. the Council will be required to review and consent to the proposed licence before it may lawfully be executed by the parties). This, in turn, provides the Council with opportunity for the Council to ensure that any such licence reflects its objectives regarding the management of the Leisure Centre. If the arrangement was in the nature of a management agreement only, there would be no requirement to obtain the consent of the Council.

23. In summary, the execution of these documents ensures that Council remains protected by receiving an indemnity for any past breaches by KCP from Pembroke School, and ensuring Pembroke School is bound by the lease terms moving forward; and KCP will be able to be deregistered without any outstanding potential liabilities.

24. Council and Pembroke acknowledge the Rules of KCP, and in particular the need to promote and make available the Centre for community members and/or groups during the hours that the Centre is not used by the School. This is covered within the Tripartite Deed, and it is the intention of the Administration will advise Council annually with details on how this has been achieved.

Conclusion

25. Council resolved a position on the future of the KCP Leisure Centre which has been subject to ongoing discussions between all of the relevant parties.

26. Council’s lawyers have expressed a view that if there is no necessity or purpose for KCP to continue operating. In this regard, since KCP does not hold any assets nor have any liabilities, it could simply be wound up on a voluntary basis by resolution of the governing body pursuant to section 41(1)(b) of the Associations Incorporation Act 1985.

27. KCP has voluntarily agreed to cease operating.

28. Pembroke School has voluntarily agreed to enter into a direct arrangement with the City of Burnside with regards to Council assets at Kensington Park Reserve.

29. Council’s lawyers have prepared the necessary documentation to achieve Council’s intentions and this has been agreed to by all parties.

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[

Kensington Community Park Inc c/- Wendy Wills, Secretary

342 The Parade KENSINGTON PARK SA 5068

23 May 2014

Mrs Elizabeth Game Chair, Pembroke School Council Pembroke School Inc 342 The Parade KENSINGTON PARK SA 5068

Email: [email protected]

Dear Elizabeth

The Kensington Community Park Inc members met on Monday this week to discuss the proposal (attached) from the City of Burnside to change the governance, management and legal arrangements relating to both the Kensington Community Leisure Centre and the Clubrooms/Grandstand land and buildings. The meeting resolved the following:

(a) Assignment of Clubroom/Grandstand Lease To accept the assignment of the (1998) clubroom lease directly to Pembroke School Inc and removal of KCP's role in relation to that lease. This will require both the KCP and the School surrendering the sub-lease.

(b) Removal of KCP role in relation to Leisure Centre Lease To accept the removal of KCP's role in relation to the (1986) KCLC lease and to include appropriate provisions in the draft Deed of assignment.

(c) Voluntary Winding Up As a consequence of (a) and (b), to voluntary wind up the KCP and for the draft Deed of assignment to include this provision.

A copy of the Chair approved meeting minutes reflecting these decisions is attached.

The above decisions are of course dependent on Pembroke School agreeing to enter into a direct legal relationship with the City of Burnside for the land and buildings leased from the Burnside Recreation Trust. The advice from the City of Burnside legal advisors is that this can be achieved by a deed of assignment which would retain the existing benefits enjoyed by Pembroke School along with the current obligations relating to community access, maintenance and upkeep of the grounds and buildings being leased.

I trust the above information will assist the School in making an informed decision as to how it wishes to proceed in relation to the Burnside Council report and recommendations.

Yours sincerely

Simon Tonkin Chair, Kensington Community Park Inc.

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Biskup

Attachment A

13 June 2014

Mr Paul Deb Chief Executive Officer City of Burnside PO Box 9 GLENSIDE SA 5065

r NNFD 1 8 JVN 7014

City of Bi..-(cie

Dear Mr Deb

Future management arrangements for the Kensington Community Leisure Centre and Kensington Oval Clubrooms

The Pembroke School Council recently discussed resolution C9606 from the City of Burnside February 2014 meeting of the Elected Members. The School Council also noted correspondence from Mr Simon Tonkin, Chair, Kensington Community Park Inc. arising from the Kensington Community Park Inc. meeting held 19 May 2014 (enclosed).

At its meeting on 26 May 2014 the Pembroke School Council discussed the proposed changes to the current management and governance arrangements in relation to the Kensington Leisure Centre and Kensington Oval Clubrooms and formally

"resolved in principle to implement Option 2 of the proposal subject to the School being satisfied with the proposed Deed of Assignment."

The School Council and management now look forward to considering a draft Deed of Assignment in order to progress the matter.

Pembroke School endeavours to be an active and supportive constituent of the City of Burnside providing education, employment and recreational facilities for local residents and the community. We value the relationship we have with the City of Bumside staff and Elected Members and believe that the proposed changes will further enhance this relationship.

Yours sincerely

Elizabeth Game Chair of School Council

cc Simon Tonkin, Chair, Kensington Community Park Inc.

enc. Letter from Mr Simon Tonkin, Chair, Kensington Community Park Inc.

CHAIR OF SCHOOL COUNCIL

i4) THE PARADE

KENSINGTON PARK SO 5M18

TELEPHONE - Cl8 E,.;61.,(- 12'.

FACS;MILE -.513 8555 5201 27

Biskup

Attachment B

burn0001_130421_017.docx v2

Deed of Surrender of Underlease

Parties

1. Kensington Community Park Incorporated of 344 The Parade, Kensington Park 5068 (Underlessor)

2. Pembroke School Incorporated of 342 The Parade, Kensington Park 5068 (Underlessee)

Introduction

A. Pursuant to Memorandum of Underlease No. 8512939 between the Underlessor and the Underlessee (Underlease), the Underlessor subleases to the Underlessee the portion of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100 that comprises the Premises, for a term of 19 years and 364 days commencing on 1 May 1998 and e xpiring on 29 April 2017, with a right of renewal for a 20 year term as set out in clause 4.1 of the Underlease.

B. The Underlessor and the Underlessee have agreed by mutual consent to surrender the Underlease as and from and including the Date of Surrender on the terms and conditions contained in this Deed.

Operative clauses

1. Definitions

In this Deed, unless inconsistent with the context or subject matter, the following terms shall have the following meaning:

(a) Date of Surrender means, subject to clause 7 of the Tripartite Deed, the date of this Deed;

(b) Outgoings means the outgoings payable by the Underlessee pursuant to the Underlease;

(c) Premises has the same meaning as in the Underlease;

(d) Rent means the rent reserved by the Underlease and any variation of that rent;

(e) Tripartite Deed means the Tripartite Deed entered into between the Underlessor, the Underlessee and the City of Burnside and dated on or about the date of this Deed;

(f) Underlease means the Memorandum of Underlease No. 8512939 between the Underlessor and the Underlessee in respect of the Premises referred to in clause A of theIntroduction of this Deed;

(g) Underlessee's Covenants means all or any of the terms covenants conditions and agreements contained or implied in the Underlease to be observed and performed by any person other than the Underlessor; and

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Biskup

Attachment C

burn0001_130421_017.docx v2

(h) Underlessor's Covenants means all or any of the terms covenants conditions and agreements contained or implied in the Underlease on the part of the Underlessor to be observed and performed.

2. Interpretation

In this Deed, unless the context otherwise requires:

(a) singular includes plural and plural includes singular;

(b) words of one gender include both genders;

(c) reference to a person includes a corporation, a firm and any other entity;

(d) reference to a party includes that party's personal representatives, successors and permitted assigns;

(e) if a party comprises more than one person, each of those persons is jointly and severally liable under this deed;

(f) a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;

(g) the Introduction is correct; and

(h) headings are for convenience only and s hall not affect the interpretation of this deed.

3. Surrender of Underlease

3.1 The Underlessee surrenders to the Underlessor the Premises and r eleases the Underlessor from the Underlessor's Covenants in respect of the Premises as from and including the Date of Surrender to the intent that the Underlease and all rights and obligations of the Underlessee under the Underlease shall determine as from and including the Date of Surrender.

3.2 From and including the Date of Surrender, the Underlessor releases the Underlessee from the Underlessee’s Covenants in respect of the Premises to the intent that the Underlease and al l rights of the Underlessor under the Underlease shall determine from and including the Date of Surrender.

3.3 Contemporaneously with the execution of this Deed, the Underlessor and the Underlessee must execute a ‘Surrender of Underlease’ in the form of, or substantially similar to, the Surrender of Underlease set out in Annexure A.

3.4 Immediately following execution of the Surrender of Underlease pursuant to clause 3.3 above, the Underlessee will take all necessary steps, at its cost and expense, to register the Surrender of Underlease.

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burn0001_130421_017.docx v2

4. Preservation of Underlessor's rights

4.1 Nothing in this Deed shall:

(a) subject to clause 5, release the Underlessee from the obligations to pay Rent or Outgoings and to observe and perform the Underlessee's Covenants prior to the Date of Surrender; and

(b) prejudice or affect any claim or demand which the Underlessor may now or but for the execution of this Deed would have had against the Underlessee for or in respect of any breach of the Underlessee's Covenants prior to the Date of Surrender, noting that these rights are only capable of being exercised until the date of deregistration of the Underlessor.

5. Make Good

The Underlessor releases the Underlessee from all yielding up, repair, reinstatement and make good obligations contained in the Underlease.

6. Costs

The parties will bear their own costs of and incidental to the negotiation, preparation and execution of this Deed.

7. Counterparts

This Deed may be executed in any number of counterparts. A counterpart may be a facsimile. Together all counterparts make up one document. If this deed is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party.

8. Governing Law

This Deed is governed by the laws in force in South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State in respect of all proceedings arising in connection with this deed.

Executed as a deed on 2014

The Common Seal of Kensington Community Park Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... Chairman ................................................................... Print Name ................................................................... Committee Member

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burn0001_130421_017.docx v2

................................................................... Print Name The Common Seal of Pembroke School Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... [Member of Council] ................................................................... Print Name ................................................................... [Insert position] ................................................................... Print Name

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Doc ID 211501213/v2 burn0001_130421_017.docx v2

ANNEXURE A – SURRENDER OF UNDERLEASE Form S1

9. SURRENDER OF UNDERLEASE

UNDERLEASE BEING SURRENDERED

8512939

STATE WHETHER WHOLE OR PART OF UNDERLEASE BEING SURRENDERED

WHOLE / PART /

CERTIFICATE(S) OF TITLE OVER WHICH UNDERLEASE IS BEING SURRENDERED

That portion of the land comprised in Certificate of Title Register Book Volume 5557 Folio100 being the area more particularly described as “Olympic Sports Field Clubroom Buildings” in GRO Plan 556 of 1997

UNDERLESSEE (Full name and address)

KENSINGTON COMMUNITY PARK INCORPORATED of 344 The Parade, Kensington Park 5068 which has changed its name from “Olympic Sports Field Indoor Recreation Centre Incorporated” as evidenced by the attachment from OCBA attached hereto. NB – evidence of name change required to be attached

UNDERLESSOR (Full name and address)

PEMBROKE SCHOOL INCORPORATED of 342 The Parade, Kensington Park 5068

CONSIDERATION (Words and figures)

Mutual consent and without any consideration whatsoever

Delete the inapplicable

(a) THE ABOVE UNDERLEASE IS SURRENDERED or (b) THE ABOVE LEASE IS SURRENDERED AS REGARDS THE

WHOLE OF THE LAND ABOVE DESCRIBED

Guidance Notes

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Page 2 of 3

CONSENTS

Nil.

33


Page 3 of 3

DATED 2014

EXECUTION

UNDERLESSOR Executed by KENSINGTON COMMUNITY PARK INCORPORATED in accordance with the rules of the Association ................................... Chairman

................................... Name (please print)

................................... Member of Committee


UNDERLESSEE Executed by PEMBROKE SCHOOL INCORPORATED in accordance with the rules of the Association: ................................... Member of Council


................................... Secretary


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Prefix

SU

Series No.

BELOW THIS LINE FOR AGENT USE ONLY

CERTIFIED CORRECT FOR THE PURPOSES OF THE REAL PROPERTY ACT 1886

_____________________________________________ Solicitor/Registered Conveyancer/Lessor

AGENT CODE

Lodged by:

Correction to:

TITLES, CROWN LEASES, DECLARATIONS ETC. LODGED WITH INSTRUMENT (TO BE FILLED IN BY PERSON LODGING)

1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................

PLEASE ISSUE NEW CERTIFICATE(S) OF TITLE AS FOLLOWS

1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................

DELIVERY INSTRUCTIONS (Agent to complete)

PLEASE DELIVER THE FOLLOWING ITEM(S) TO THE UNDERMENTIONED AGENT(S)

ITEM AGENT CODE

LANDS TITLES REGISTRATION

OFFICE SOUTH AUSTRALIA

SURRENDER OF LEASE FORM APPROVED BY THE REGISTRAR-GENERAL

BELOW THIS LINE FOR OFFICE & STAMP DUTY PURPOSES ONLY

CORRECTION PASSED

REGISTERED

REGISTRAR-GENERAL

R-G 010107

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burn0001_130421_019.docx v2

Deed of Assignment of Lease

Parties

1. Kensington Community Park Incorporated of 344 The Parade, Kensington Park 5068 (Assignor)

2. Pembroke School Incorporated of 342 The Parade, Kensington Park 5068 (Assignee)

3. City of Burnside of 401 Greenhill Road, Tusmore 5065 (Lessor)

Introduction

A. The Lessor is the registered proprietor of an estate in fee simple in the whole of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100 (Land).

B. Pursuant to Memorandum of Lease No. 8512938 between the Lessor (as lessor) and the Assignor (as lessee) (Lease), the Lessor leases to the Assignor the Premises for a term of 20 years commencing on 1 May 1998 and expiring on 30 April 2017 with a right of renewal for a further 20 year term as set out in clause 4.1 of the Lease.

C. The Assignor wishes to assign its interest in the Lease to the Assignee and t he Assignee wishes to accept such assignment upon the terms and conditions set out in this Deed.

D. The Lessor is prepared to consent to the assignment upon the terms and conditions set out in this Deed.

Operative clauses

1. In this deed unless inconsistent with the context:

1.1 Assignee means and includes the person so described in this Deed and its successors and permitted assigns;

1.2 Assignor means and includes the person so described in this Deed and its successors and permitted assigns;

1.3 Date of Assignment has the meaning given to that term in clause 3 of this Deed;

1.4 Premises has the meaning given to that term in the Lease;

1.5 Land has the meaning given to that term in clause A of the Introduction of this Deed;

1.6 Lease has the meaning given to that term in clause B of the Introduction of this Deed;

1.7 Lessor means the person so described in this Deed and its successors and assigns;

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Biskup

Attachment D

burn0001_130421_019.docx v2

1.8 GST means goods and services tax payable under the GST Law and an expression used in this deed in relation to GST will have the meaning used in or attributed to that expression by the GST Law from time to time;

1.9 GST Law has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999;

1.10 Tripartite Deed means the Tripartite Deed entered into between the Assignor, the Assignee and the Lessor and dated on or about the date of this Deed;

1.11 any monetary amount payable pursuant to this Deed is expressed exclusive of GST (unless otherwise stated). I n addition to the amount payable, the recipient of the taxable supply (as defined for GST purposes) must pay to the supplier of that taxable supply on demand the GST payable in respect of that taxable supply;

1.12 a reference to one gender includes the other genders, the singular includes the plural and vice versa respectively;

1.13 a reference to a person includes an incorporated body or other association of persons and vice versa;

1.14 any term of this Deed having application to a party consisting of more than one person shall have application to each such person severally and to all of such persons jointly; and

1.15 this Deed shall be governed by and construed in accordance with the laws of South Australia and the courts in that State shall have jurisdiction in respect of any dispute arising hereunder or in connection with this Deed.

2. This Deed is in all respects subject to:

2.1 the execution of this Deed by the Lessor;

2.2 the parties bearing their own costs of and i ncidental to the negotiation, preparation and execution of this Deed;

2.3 the Assignor and Assignee first effecting a surrender of the Memorandum of Underlease No. 8512939 between the Assignor (as underlessor) and the Assignee (as underlessee) in respect of the Premises that was executed on 1 May 1998 and the said Underlease being removed from the Certificate of Title for the Land; and

2.4 contemporaneously with the execution of this Deed, the Assignor and Assignee executing a Transfer of Lease in the form of or substantially similar to the Transfer of Lease set out in Annexure A and the Assignee immediately taking all necessary steps, at its cost and expense, to register the Transfer of Lease.

3. Subject to clause 7 of the Tripartite Deed, this Deed and the assignment it evidences shall take effect or be deemed to have taken effect as and from the date of this Deed (Date of Assignment).

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burn0001_130421_019.docx v2

4. All rent and other payments made and payable under the Lease shall be adjusted by the Assignor between the Assignor and the Assignee as at the Date of Assignment and any necessary payments in consequence of such adjustment shall be made on or before the Date of Assignment.

5. The Assignor shall pay to the Lessor immediately upon the Date of Assignment all the arrears (if any) in annual rent and o ther money payable as at the date of this Deed pursuant to the terms of the Lease.

6. As and from the Date of Assignment, the Assignor hereby assigns to the Assignee all its estate and interest as lessee pursuant to the Lease and the Assignee hereby accepts the assignment of the Assignor’s estate and interest in the Lease subject to the terms and conditions of this Deed.

7. Subject to the execution of this Deed by the Assignor and by the Assignee and subject to all the terms and conditions set out herein the Lessor consents to the assignment as and from the Date of Assignment.

8. The Assignee hereby covenants and agrees with the Assignor and as a separate and individual covenant with the Lessor as follows:

8.1 to duly and punctually pay the whole of the rent reserved by the Lease during the unexpired balance of the term of the Lease (including any Renewal Term) as and from the Date of Assignment;

8.2 to observe and per form all the terms, covenants, conditions, provisos, agreements and r estrictions on t he part of the Assignor to be c arried out, observed, performed and kept whether expressed or implied in or by the Lease or by law as and from the Date of Assignment; and

8.3 to indemnify the Assignor from and ag ainst all actions, proceedings, costs, claims, damages, expenses and demands for or in respect of the non-observance or non-performance of all or any of the terms, covenants, conditions, provisos, agreements and restrictions in the Lease whether expressed or implied in or by the Lease or by law as and from the Date of Assignment.

9. The Assignee hereby covenants with the Lessor that it will at all times keep the Lessor fully and effectually indemnified against all actions, proceedings, costs, claims, damages, expenses and dem ands whatsoever by reason or on ac count of the non-payment of the rent reserved by or the breach non-observance or non-performance of any other terms, covenants, conditions, provisos, agreements or restrictions on the part of the Assignor to be observed or performed under the Lease arising in respect of the period prior to the Date of Assignment.

10. The Lessor hereby releases the Assignor from all actions, proceedings, costs, claims, damages, expenses and demands whatsoever by reason or on account of the non-payment of the rent reserved by or the breach non-observance or non-performance of any other terms, covenants, conditions, provisos, agreements or restrictions on the part of the Assignor to be observed or performed under, the Lease (including in respect of the period prior to the Date of Assignment).

11. The costs of and i ncidental to the stamping of this Deed shall be bo rne by the Assignee.

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12. The Assignee shall cause this Deed to be dul y stamped in accordance with the requirements of all relevant authorities and s hall indemnify the Assignor and t he Lessor against all actions, proceedings, costs, claims, damages, expenses and demands incurred by or brought against the Assignor and/or the Lessor by reason of the breach by the Assignee of the Assignee’s obligations under this clause 1.

13. Without limiting any other covenant in this Deed on the part of the Assignee in favour of the Lessor, the Assignee hereby acknowledges and a grees that it shall be responsible for the performance of all making good, reinstatement, repair and maintenance obligations on the part of the lessee contained in the Lease notwithstanding that the need for such works may arise from acts or omissions on the part of the Assignor or some other person (whether under the authority of the Assignor or otherwise) prior to the date on which the Assignee took possession of the Premises.

14. This Deed may be executed in any number of counterparts. A counterpart may be a facsimile. Together all counterparts make up one document. If this deed is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party.

15. This deed is governed by the laws in force in South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State \ in respect of all proceedings arising in connection with this Deed.



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................................................................... Print Name The Common Seal of Pembroke School Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... Member of Council ................................................................... Print Name ................................................................... [Insert position] ................................................................... Print Name The Common Seal of the City of Burnside was affixed in accordance with the Local Government Act 1999 in the presence of: ................................................................... Paul Deb Chief Executive Officer ................................................................... David Parkin Mayor

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ANNEXURE A – TRANSFER OF LEASE

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Form T3

MEMORANDUM OF TRANSFER OF MORTGAGE, ENCUMBRANCE OR LEASE

MORTGAGE, ENCUMBRANCE OR LEASE BEING TRANSFERRED (Delete the inapplicable) 8512938

CERTIFICATE(S) OF TITLE OVER WHICH INSTRUMENT IS REGISTERED A portion of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100 being the area more particularly described as “Olympic Sports Field Clubroom Buildings” in GRO Plan 556 of 1997

ESTATE AND INTEREST Estate as Lessee

ENCUMBRANCES APPLICABLE TO INTEREST BEING TRANSFERRED Nil

TRANSFEROR (Full name and address) KENSINGTON COMMUNITY PARK INCORPORATED of 344 The Parade, Kensington Park 5068 which has changed its name from “Olympic Sports Field Indoor Recreation Centre Incorporated” as evidenced by the attachment from OCBA attached hereto. NB – evidence of name change required to be attached

CONSIDERATION (Words and figures) Nil

TRANSFEREE (Full name, address and mode of holding) PEMBROKE SCHOOL INCORPORATED of 342 The Parade, Kensington Park 5068

Guidance Notes

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Page 2 of 3

THE TRANSFEROR ACKNOWLEDGING RECEIPT OF THE ABOVE CONSIDERATION TRANSFERS TO THE TRANSFEREE THE ESTATE AND INTEREST HEREIN SPECIFIED IN THE LAND ABOVE DESCRIBED SUBJECT TO THE ABOVE ENCUMBRANCES

DATED 2014 EXECUTION

Executed by KENSINGTON COMMUNITY PARK INCORPORATED in accordance with the rules of the Association .................................... Chairman

.................................... Name (please print)

.................................... Member of Committee


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Page 3 of 3 ACCEPTED BY THE TRANSFEREE(S)

Executed by PEMBROKE SCHOOL INCORPORATED in accordance with the rules of the Association: .................................... Member of Council


.................................... Secretary


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Prefix

T

Series No.



_____________________________________________ Solicitor/Registered Conveyancer/Transferee

AGENT CODE Lodged by:

Correction to:


1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................


1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................

DELIVERY INSTRUCTIONS (Agent to complete) PLEASE DELIVER THE FOLLOWING ITEM(S) TO THE UNDERMENTIONED AGENT(S)

ITEM(S) AGENT CODE

LANDS TITLES REGISTRATION OFFICE

SOUTH AUSTRALIA

MEMORANDUM OF TRANSFER OF MORTGAGE, ENCUMBRANCE

OR LEASE FORM APPROVED BY THE REGISTRAR-GENERAL


CORRECTION PASSED

REGISTERED

REGISTRAR-GENERAL

R-G 010107

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KENSINGTON COMMUNITY LEISURE CENTRE & OLYMPIC SPORTS FIELD CLUBROOMS

TRIPARTITE DEED

Parties

1. Kensington Community Park Incorporated of 344 The Parade, Kensington Park 5068 (KCP)

2. Pembroke School Incorporated of 342 The Parade, Kensington Park 5068 (Pembroke)

3. City of Burnside of 401 Greenhill Road, Tusmore 5065 (Council)

Introduction

A. The Council is the registered proprietor of an estate in fee simple in:

(a) the whole of the land comprised in Certificate of Title Register Book Volume 259 Folio 118; and,

(b) the whole of the land comprised in Certificate of Title Register Book Volume 503 Folio 66; and,

(c) the whole of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100;

collectively referred to as the Kensington Park Land.

B. Pursuant to a Memorandum of Lease No. 8512938 between the Council (as lessor) and KCP (as lessee), the Council leases to KCP the portion of Kensington Park Land comprising the Clubroom Premises for a term of 20 years commencing on 1 May 1998 and expiring on 30 April 2017 with a right of renewal for a further 20 year term (the Clubroom Lease).

C. Pursuant to a Memorandum of Underlease No. 8512939 between KCP (as underlessor) and Pembroke (as underlessee), KCP subleases to Pembroke the portion of Kensington Park Land comprising the Clubroom Premises, for a term of 19 years and 364 days commencing on 1 May 1998 and expiring on 29 April 2017, with a right of renewal for a 20 year term (the Clubroom Underlease).

D. Pursuant to a Memorandum of Lease dated 9 October 1986 between the Council (as lessor) and Pembroke (as lessee), the Council leases to Pembroke that portion of Kensington Park Land comprising the Leisure Centre Premises for a term of 21 years commencing on 1 September 1986 and expiring on 31 August 2007, with a right of renewal for a further 21 year term (the Leisure Centre Lease). Pursuant to the Leisure Centre Lease, the use of the Leisure Centre Premises by Pembroke is restricted to certain hours. Pembroke has exercised its right of renewal under the Leisure Centre Lease, which now expires on 1 September 2028.

E. Pembroke is intending to enter into a licence agreement in respect of the Leisure Centre Premises with a third party (being The Young Men's Christian Association of

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Biskup

Attachment E

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the Inner North East of Adelaide Incorporated (YMCA)) (the Leisure Centre Licence) to facilitate the management of public access to and use of the Leisure Centre Premises outside the hours of Pembroke’s permitted use under the Leisure Centre Lease. YMCA is currently undertaking this management function in anticipation of the Leisure Centre Licence being entered into following the execution of this deed.

F. The Parties wish to simplify the tenure and governance arrangements in respect of the Clubroom Premises and the Leisure Centre Premises and for these purposes agree to take the actions set out in this deed.

OPERATIVE CLAUSES

PART ONE - INTERPRETATION

1. Definitions

In this deed, unless inconsistent with the context or subject matter, the following terms shall have the following meaning:

(a) Clubroom Lease has the meaning given to that term in clause B of the Introduction of this deed.

(b) Clubroom Premises means the portion of land comprised in Certificate of Title Register Book Volume 5557 Folio 100 that is more particularly described as ‘Olympic Sports Field Clubroom Buildings’ in GRO Plan 556 of 1997.

(c) Clubroom Underlease has the meaning given to that term in clause C of the Introduction of this deed.

(d) Deed of Assignment means the Deed of Assignment between KCP, Pembroke and the Council under which the parties agree to assign the Clubroom Lease from KCP to Pembroke, in substantially the same form as Annexure C.

(e) Deed of Surrender means the Deed of Surrender to be entered into between KCP and Pembroke under which the parties propose to surrender the Clubroom Underlease, in substantially the same form as Annexure B.

(f) GST means goods and services tax payable under the GST Law and an expression used in this deed in relation to GST will have the meaning used in or attributed to that expression by the GST Law from time to time.

(g) GST Law has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999.

(h) Leisure Centre Licence has the meaning given to that term in clause E of the Introduction of this deed.

(i) Leisure Centre Lease has the meaning given to that term in clause D of the Introduction of this deed.

(j) Leisure Centre Premises means the portion of land comprised in Certificate of Title Register Book Volume 259 Folio 118 and Volume 503 Folio 66 that is

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delineated and marked ‘A’ in Annexure A, including all improvement, building, fixtures and fittings erected, installed or located thereon from time to time.

2. Interpretation

In this deed, unless the context otherwise requires:

(a) any monetary amount payable pursuant to this deed is expressed exclusive of GST (unless otherwise stated). In addition to the amount payable, the recipient of the taxable supply (as defined for GST purposes) must pay to the supplier of that taxable supply on demand the GST payable in respect of that taxable supply;

(b) a reference to one gender includes the other genders, the singular includes the plural and vice versa respectively;

(c) a reference to a person includes an incorporated body or other association of persons and vice versa;

(d) this deed shall be governed by and construed in accordance with the laws of South Australia and the courts in that State shall have jurisdiction in respect of any dispute arising hereunder or in connection with this deed.

(e) reference to a party to this deed includes that party's personal representatives, successors and permitted assigns;

(f) if a party comprises more than one person, each of those persons is jointly and severally liable under this deed;

(g) a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;

(h) the Introduction is correct; and

(i) headings are for convenience only and shall not affect the interpretation of this deed.

PART TWO – CLUBROOM PREMISES

Deed of Surrender

3. Immediately following execution of this deed, Pembroke and KCP must execute the Deed of Surrender.

Deed of Assignment

4. Contemporaneously with the execution of the Deed of Surrender under clause 3 above, the parties must execute the Deed of Assignment.

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PART THREE – LEISURE CENTRE PREMISES

5. Variation of Leisure Centre Lease

5.1 Pembroke and the Council agree to vary the Leisure Centre Lease in accordance with the principles set out in clause 5.2 below and agree, in good faith, to formalise and execute documentation to achieve the said variation immediately upon the deregistration of KCP.

5.2 The key amendments to be made to the Leisure Centre Lease are those required to:

(a) remove Recital D and clause C1 in the Leisure Centre Lease; and

(b) insert variations that reflect a commitment by Pembroke, outside the hours specified in Item 8 of the Leisure Centre Lease, to manage and maintain, either itself or through a third party (noting the proposed Leisure Centre Licence referred to in clause E of the Introduction of this deed), the Leisure Centre Premises in accordance with the management objectives contained in Rule 3 of the Rules of KCP.

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PART FOUR – DEREGISTRATION OF KCP

6. Deregistration of KCP

KCP agrees that upon execution of this deed, the Deed of Surrender and the Deed of Assignment, it will take all necessary steps to voluntarily deregister in accordance with section 43A of the Associations Incorporation Act 1985 (SA) and will resolve at its next meeting following execution of this deed, to formally commence that process.

PART FIVE - MISCELLANEOUS

7. Operation of Deeds

The Deed of Surrender and the Deed of Assignment are not binding on the parties until all parties comply with their obligations under each of clauses 3 and 4 of this deed.

8. Costs

The parties bear their own costs of and incidental to the negotiation, preparation and execution of this deed.

9. Counterparts

This deed may be executed in any number of counterparts. A counterpart may be a facsimile. Together all counterparts make up one document. If this deed is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party.

10. Governing Law

This deed is governed by the laws in force in South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State in respect of all proceedings arising in connection with this deed.



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................................................................... Print Name The Common Seal of Pembroke School Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... [Member of Council] ................................................................... Print Name ................................................................... [Insert Position] ................................................................... Print Name The Common Seal of the City of Burnside was affixed in accordance with the Local Government Act 1999 in the presence of: ................................................................... Paul Deb Chief Executive Officer ................................................................... David Parkin Mayor

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ANNEXURE A – LEISURE CENTRE PREMISES

Insert plan delineating extent of premises

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ANNEXURE B – DEED OF SURRENDER

Deed of Surrender of Underlease

Parties

4. Kensington Community Park Incorporated of 344 The Parade, Kensington Park 5068 (Underlessor)

5. Pembroke School Incorporated of 342 The Parade, Kensington Park 5068 (Underlessee)

Introduction

A. Pursuant to Memorandum of Underlease No. 8512939 between the Underlessor and the Underlessee (Underlease), the Underlessor subleases to the Underlessee the portion of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100 that comprises the Premises, for a term of 19 years and 364 days commencing on 1 May 1998 and expiring on 29 April 2017, with a r ight of renewal for a 20 y ear term as set out in clause 4.1 of the Underlease.

B. The Underlessor and the Underlessee have agreed by mutual consent to surrender the Underlease as and from and including the Date of Surrender on the terms and conditions contained in this Deed.

Operative clauses

1. Definitions

In this Deed, unless inconsistent with the context or subject matter, the following terms shall have the following meaning:

(a) Date of Surrender means, subject to clause 7 of the Tripartite Deed, the date of this Deed;

(b) Outgoings means the outgoings payable by the Underlessee pursuant to the Underlease;

(c) Premises has the same meaning as in the Underlease;

(d) Rent means the rent reserved by the Underlease and any variation of that rent;

(e) Tripartite Deed means the Tripartite Deed entered into between the Underlessor, the Underlessee and the City of Burnside and dated on or about the date of this Deed;

(f) Underlease means the Memorandum of Underlease No. 8512939 between the Underlessor and the Underlessee in respect of the Premises referred to in clause A of theIntroduction of this Deed;

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(g) Underlessee's Covenants means all or any of the terms covenants conditions and agreements contained or implied in the Underlease to be observed and performed by any person other than the Underlessor; and

(h) Underlessor's Covenants means all or any of the terms covenants conditions and agreements contained or implied in the Underlease on the part of the Underlessor to be observed and performed.

2. Interpretation

In this Deed, unless the context otherwise requires:

(a) singular includes plural and plural includes singular;

(b) words of one gender include both genders;

(c) reference to a person includes a corporation, a firm and any other entity;

(d) reference to a party includes that party's personal representatives, successors and permitted assigns;

(e) if a party comprises more than one person, each of those persons is jointly and severally liable under this deed;

(f) a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;

(g) the Introduction is correct; and

(h) headings are for convenience only and shall not affect the interpretation of this deed.

3. Surrender of Underlease

3.1 The Underlessee surrenders to the Underlessor the Premises and r eleases the Underlessor from the Underlessor's Covenants in respect of the Premises as from and including the Date of Surrender to the intent that the Underlease and all rights and obligations of the Underlessee under the Underlease shall determine as from and including the Date of Surrender.

3.2 From and including the Date of Surrender, the Underlessor releases the Underlessee from the Underlessee’s Covenants in respect of the Premises to the intent that the Underlease and al l rights of the Underlessor under the Underlease shall determine from and including the Date of Surrender.

3.3 Contemporaneously with the execution of this Deed, the Underlessor and the Underlessee must execute a ‘Surrender of Underlease’ in the form of, or substantially similar to, the Surrender of Underlease set out in Annexure A.

3.4 Immediately following execution of the Surrender of Underlease pursuant to clause 3.3 above, the Underlessee will take all necessary steps, at its cost and expense, to register the Surrender of Underlease.

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4. Preservation of Underlessor's rights

4.1 Nothing in this Deed shall:

(a) subject to clause 5, release the Underlessee from the obligations to pay Rent or Outgoings and to observe and perform the Underlessee's Covenants prior to the Date of Surrender; and

(b) prejudice or affect any claim or demand which the Underlessor may now or but for the execution of this Deed would have had against the Underlessee for or in respect of any breach of the Underlessee's Covenants prior to the Date of Surrender, noting that these rights are only capable of being exercised until the date of deregistration of the Underlessor.

5. Make Good

The Underlessor releases the Underlessee from all yielding up, repair, reinstatement and make good obligations contained in the Underlease.

6. Costs

The parties will bear their own costs of and incidental to the negotiation, preparation and execution of this Deed.

7. Counterparts

This Deed may be executed in any number of counterparts. A counterpart may be a facsimile. Together all counterparts make up one document. If this deed is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party.

8. Governing Law

This Deed is governed by the laws in force in South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State in respect of all proceedings arising in connection with this deed.



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................................................................... Print Name The Common Seal of Pembroke School Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... [Member of Council] ................................................................... Print Name ................................................................... [Insert position] ................................................................... Print Name

56


ANNEXURE A – SURRENDER OF UNDERLEASE Form S1

9. SURRENDER OF UNDERLEASE

UNDERLEASE BEING SURRENDERED

8512939

STATE WHETHER WHOLE OR PART OF UNDERLEASE BEING SURRENDERED

WHOLE / PART /

CERTIFICATE(S) OF TITLE OVER WHICH UNDERLEASE IS BEING SURRENDERED

That portion of the land comprised in Certificate of Title Register Book Volume 5557 Folio100 being the area more particularly described as “Olympic Sports Field Clubroom Buildings” in GRO Plan 556 of 1997

UNDERLESSEE (Full name and address)

KENSINGTON COMMUNITY PARK INCORPORATED of 344 The Parade, Kensington Park 5068 which has changed its name from “Olympic Sports Field Indoor Recreation Centre Incorporated” as evidenced by the attachment from OCBA attached hereto. NB – evidence of name change required to be attached

UNDERLESSOR (Full name and address)

PEMBROKE SCHOOL INCORPORATED of 342 The Parade, Kensington Park 5068

CONSIDERATION (Words and figures)

Mutual consent and without any consideration whatsoever

Delete the inapplicable

(a) THE ABOVE UNDERLEASE IS SURRENDERED or (b) THE ABOVE LEASE IS SURRENDERED AS REGARDS THE

WHOLE OF THE LAND ABOVE DESCRIBED

Guidance Notes

57


Page 2 of 3

CONSENTS

Nil.

58


Page 3 of 3

DATED 2014

EXECUTION

UNDERLESSOR Executed by KENSINGTON COMMUNITY PARK INCORPORATED in accordance with the rules of the Association ................................... Chairman


................................... Member of Committee


UNDERLESSEE Executed by PEMBROKE SCHOOL INCORPORATED in accordance with the rules of the Association: ................................... Member of Council


................................... Secretary


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Prefix

SU

Series No.



_____________________________________________ Solicitor/Registered Conveyancer/Lessor

AGENT CODE

Lodged by:

Correction to:


1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................


1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................

DELIVERY INSTRUCTIONS (Agent to complete)

PLEASE DELIVER THE FOLLOWING ITEM(S) TO THE UNDERMENTIONED AGENT(S)

ITEM AGENT CODE

R-G 010107

LANDS TITLES REGISTRATION

OFFICE SOUTH AUSTRALIA

SURRENDER OF LEASE FORM APPROVED BY THE REGISTRAR-

GENERAL


CORRECTION PASSED

REGISTERED

REGISTRAR-GENERAL

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ANNEXURE C – DEED OF ASSIGNMENT

Deed of Assignment of Lease

Parties

6. Kensington Community Park Incorporated of 344 The Parade, Kensington Park 5068 (Assignor)

7. Pembroke School Incorporated of 342 The Parade, Kensington Park 5068 (Assignee)

8. City of Burnside of 401 Greenhill Road, Tusmore 5065 (Lessor)

Introduction

G. The Lessor is the registered proprietor of an estate in fee simple in the whole of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100 (Land).

H. Pursuant to Memorandum of Lease No. 8512938 between the Lessor (as lessor) and the Assignor (as lessee) (Lease), the Lessor leases to the Assignor the Premises for a term of 20 years commencing on 1 May 1998 and expiring on 30 April 2017 with a right of renewal for a further 20 year term as set out in clause 4.1 of the Lease.

I. The Assignor wishes to assign its interest in the Lease to the Assignee and t he Assignee wishes to accept such assignment upon the terms and conditions set out in this Deed.

J. The Lessor is prepared to consent to the assignment upon the terms and conditions set out in this Deed.

Operative clauses

10. In this deed unless inconsistent with the context:

10.1 Assignee means and includes the person so described in this Deed and its successors and permitted assigns;

10.2 Assignor means and includes the person so described in this Deed and its successors and permitted assigns;

10.3 Date of Assignment has the meaning given to that term in clause 3 of this Deed;

10.4 Premises has the meaning given to that term in the Lease;

10.5 Land has the meaning given to that term in clause A of the Introduction of this Deed;

10.6 Lease has the meaning given to that term in clause B of the Introduction of this Deed;

10.7 Lessor means the person so described in this Deed and its successors and assigns;

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10.8 GST means goods and services tax payable under the GST Law and an expression used in this deed in relation to GST will have the meaning used in or attributed to that expression by the GST Law from time to time;

10.9 GST Law has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999;

10.10 Tripartite Deed means the Tripartite Deed entered into between the Assignor, the Assignee and the Lessor and dated on or about the date of this Deed;

10.11 any monetary amount payable pursuant to this Deed is expressed exclusive of GST (unless otherwise stated). I n addition to the amount payable, the recipient of the taxable supply (as defined for GST purposes) must pay to the supplier of that taxable supply on demand the GST payable in respect of that taxable supply;

10.12 a reference to one gender includes the other genders, the singular includes the plural and vice versa respectively;

10.13 a reference to a person includes an incorporated body or other association of persons and vice versa;

10.14 any term of this Deed having application to a party consisting of more than one person shall have application to each such person severally and to all of such persons jointly; and

10.15 this Deed shall be governed by and construed in accordance with the laws of South Australia and the courts in that State shall have jurisdiction in respect of any dispute arising hereunder or in connection with this Deed.

11. This Deed is in all respects subject to:

11.1 the execution of this Deed by the Lessor;

11.2 the parties bearing their own costs of and i ncidental to the negotiation, preparation and execution of this Deed;

11.3 the Assignor and Assignee first effecting a surrender of the Memorandum of Underlease No. 8512939 between the Assignor (as underlessor) and the Assignee (as underlessee) in respect of the Premises that was executed on 1 May 1998 and the said Underlease being removed from the Certificate of Title for the Land; and

11.4 contemporaneously with the execution of this Deed, the Assignor and Assignee executing a Transfer of Lease in the form of or substantially similar to the Transfer of Lease set out in Annexure A and the Assignee immediately taking all necessary steps, at its cost and expense, to register the Transfer of Lease.

12. Subject to clause 7 of the Tripartite Deed, this Deed and the assignment it evidences shall take effect or be deemed to have taken effect as and from the date of this Deed (Date of Assignment).

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13. All rent and other payments made and payable under the Lease shall be adjusted by the Assignor between the Assignor and the Assignee as at the Date of Assignment and any necessary payments in consequence of such adjustment shall be made on or before the Date of Assignment.

14. The Assignor shall pay to the Lessor immediately upon the Date of Assignment all the arrears (if any) in annual rent and o ther money payable as at the date of this Deed pursuant to the terms of the Lease.

15. As and from the Date of Assignment, the Assignor hereby assigns to the Assignee all its estate and interest as lessee pursuant to the Lease and the Assignee hereby accepts the assignment of the Assignor’s estate and interest in the Lease subject to the terms and conditions of this Deed.

16. Subject to the execution of this Deed by the Assignor and by the Assignee and subject to all the terms and conditions set out herein the Lessor consents to the assignment as and from the Date of Assignment.

17. The Assignee hereby covenants and agrees with the Assignor and as a separate and individual covenant with the Lessor as follows:

17.1 to duly and punctually pay the whole of the rent reserved by the Lease during the unexpired balance of the term of the Lease (including any Renewal Term) as and from the Date of Assignment;

17.2 to observe and per form all the terms, covenants, conditions, provisos, agreements and r estrictions on t he part of the Assignor to be carried out, observed, performed and kept whether expressed or implied in or by the Lease or by law as and from the Date of Assignment; and

17.3 to indemnify the Assignor from and ag ainst all actions, proceedings, costs, claims, damages, expenses and demands for or in respect of the non-observance or non-performance of all or any of the terms, covenants, conditions, provisos, agreements and restrictions in the Lease whether expressed or implied in or by the Lease or by law as and from the Date of Assignment.

18. The Assignee hereby covenants with the Lessor that it will at all times keep the Lessor fully and effectually indemnified against all actions, proceedings, costs, claims, damages, expenses and dem ands whatsoever by reason or on ac count of the non-payment of the rent reserved by or the breach non-observance or non-performance of any other terms, covenants, conditions, provisos, agreements or restrictions on the part of the Assignor to be observed or performed under the Lease arising in respect of the period prior to the Date of Assignment.

19. The costs of and i ncidental to the stamping of this Deed shall be bo rne by the Assignee.

20. The Assignee shall cause this Deed to be dul y stamped in accordance with the requirements of all relevant authorities and s hall indemnify the Assignor and t he Lessor against all actions, proceedings, costs, claims, damages, expenses and demands incurred by or brought against the Assignor and/or the Lessor by reason of the breach by the Assignee of the Assignee’s obligations under this clause 1.

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21. Without limiting any other covenant in this Deed on the part of the Assignee in favour of the Lessor, the Assignee hereby acknowledges and a grees that it shall be responsible for the performance of all making good, reinstatement, repair and maintenance obligations on the part of the lessee contained in the Lease notwithstanding that the need for such works may arise from acts or omissions on the part of the Assignor or some other person (whether under the authority of the Assignor or otherwise) prior to the date on which the Assignee took possession of the Premises.

22. This Deed may be executed in any number of counterparts. A counterpart may be a facsimile. Together all counterparts make up one document. If this deed is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party.

23. This deed is governed by the laws in force in South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State \ in respect of all proceedings arising in connection with this Deed.


The Common Seal of Kensington Community Park Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... Chairman ................................................................... Print Name ................................................................... Committee Member ................................................................... Print Name The Common Seal of Pembroke School Incorporated was affixed in accordance with the Rules of the Association in the presence of: ................................................................... Member of Council ................................................................... Print Name ................................................................... [Insert position] ................................................................... Print Name

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The Common Seal of the City of Burnside was affixed in accordance with the Local Government Act 1999 in the presence of: ................................................................... Paul Deb Chief Executive Officer ................................................................... David Parkin Mayor

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ANNEXURE A – TRANSFER OF LEASE

Form T3

MEMORANDUM OF TRANSFER OF MORTGAGE, ENCUMBRANCE OR LEASE

MORTGAGE, ENCUMBRANCE OR LEASE BEING TRANSFERRED (Delete the inapplicable) 8512938

CERTIFICATE(S) OF TITLE OVER WHICH INSTRUMENT IS REGISTERED A portion of the land comprised in Certificate of Title Register Book Volume 5557 Folio 100 being the area more particularly described as “Olympic Sports Field Clubroom Buildings” in GRO Plan 556 of 1997

ESTATE AND INTEREST Estate as Lessee

ENCUMBRANCES APPLICABLE TO INTEREST BEING TRANSFERRED Nil

TRANSFEROR (Full name and address) KENSINGTON COMMUNITY PARK INCORPORATED of 344 The Parade, Kensington Park 5068 which has changed its name from “Olympic Sports Field Indoor Recreation Centre Incorporated” as evidenced by the attachment from OCBA attached hereto. NB – evidence of name change required to be attached

CONSIDERATION (Words and figures) Nil

Guidance Notes

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TRANSFEREE (Full name, address and mode of holding) PEMBROKE SCHOOL INCORPORATED of 342 The Parade, Kensington Park 5068

Page 2 of 3

THE TRANSFEROR ACKNOWLEDGING RECEIPT OF THE ABOVE CONSIDERATION TRANSFERS TO THE TRANSFEREE THE ESTATE AND INTEREST HEREIN SPECIFIED IN THE LAND ABOVE DESCRIBED SUBJECT TO THE ABOVE ENCUMBRANCES

DATED 2014 EXECUTION

Executed by KENSINGTON COMMUNITY PARK INCORPORATED in accordance with the rules of the Association .................................... Chairman


.................................... Member of Committee


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Page 3 of 3 ACCEPTED BY THE TRANSFEREE(S)

Executed by PEMBROKE SCHOOL INCORPORATED in accordance with the rules of the Association: .................................... Member of Council


.................................... Secretary


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Prefix

T

Series No.



_____________________________________________ Solicitor/Registered Conveyancer/Transferee

AGENT CODE Lodged by:

Correction to:


1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................


1 ..........................................................................................................

2 ..........................................................................................................

3 ..........................................................................................................

4 ..........................................................................................................

DELIVERY INSTRUCTIONS (Agent to complete) PLEASE DELIVER THE FOLLOWING ITEM(S) TO THE UNDERMENTIONED AGENT(S)

ITEM(S) AGENT CODE

LANDS TITLES REGISTRATION OFFICE

SOUTH AUSTRALIA

MEMORANDUM OF TRANSFER OF MORTGAGE, ENCUMBRANCE

OR LEASE FORM APPROVED BY THE REGISTRAR-GENERAL


CORRECTION PASSED

REGISTERED

REGISTRAR-GENERAL

R-G 010107

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Item No: 14.2 To: Council Date: 14 October 2014 Author: Barry Cant – Strategic Project Officer General Manager and Division

Graeme Brown – General Manager, Community and Development Services

Contact: 8366 4223 Subject: GEORGE BOLTON SWIMMING CENTRE BURNSIDE LEGAL

ADVICE ON LATENT CONDITIONS (OPERATIONAL) Attachments: A. Swimming Centre construction project latent conditions advice Prev. Resolution: C9802, 22/7/14



Purpose

1. To provide Elected Members with legal advice received in relation to construction works variations, specifically Latent Conditions, at the George Bolton Swimming Centre (the Centre) and whether there is any prospect of seeking compensation for these variations due to historical works previously undertaken at the site.

Strategic Plan

2. The following Strategic Plan provisions are relevant:

“Preservation of the historic character of the City”

“A safe and well maintained standard of infrastructure consistent across the City”

“Access to a range of education, health and support services that meet community needs and enhance lifestyles”

“A range of high quality passive and active recreational facilities”


Communications/Consultation

3. In preparing this Report, communication has been undertaken with the following:

3.1. Piper Alderman Lawyers for legal advice on the matter of latent conditions and any recourse in meeting costs associated with latent conditions.

Statutory

4. The following standards and legislation are relevant in this instance:

4.1. The Centre is maintained and operated to comply with legislative requirements and parameters, which are comprised of The Royal Life Saving Society of

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Australia’s ‘Guidelines for Safe Pool Operations’ and the Regulations under the Public and Environmental Health Act 1987;

4.2. National Construction Code (Building Code of Australia);

4.3. Australian Standards 1428.1-2009 Design for Access and Mobility; and

4.4. Limitation of Actions Act 1936.

Policy

5. The following Council Policies and Strategies are relevant in this instance:

Property Strategy

Open Space Strategy

Community Land Management Plans

Prudential Review Policy

Risk Assessment

6. There are financial risks associated with seeking a legal claim/s as a result of previous works at the site and this is covered in detail in the legal advice attached.

Finance

7. There are no direct costs associated with this Recommendation. Should Council resolve differently to the Recommendation as detailed then there may be costs associated with that Recommendation eg if Council resolves that the Administration undertake more work to ascertain who, if anyone, is liable for the latent conditions, there is likely to be significant administrative and legal costs involved.

Discussion

Background

8. The George Bolton Swimming Centre Project Plan was endorsed by Council in June 2013 and following a rigorous tender process, Sitzler Pty Ltd was awarded the construction contract.

9. The site was handed to Sitzler in February 2014 and the project continues in accordance with the Council approved scope.

10. In July 2014, Council considered a Report on the Project relating to the Latent Conditions encountered on-site.

11. ‘Brownfield’ sites that have buildings or structures already on the site usually have a high number of latent conditions, especially if there is a lack of detailed information on the history (previous buildings and construction techniques) and use of the site. This is the issue we have with the George Bolton Swimming Centre Burnside Refurbishment and unfortunately the extent of latent conditions is very high.

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12. As is the general practice with major projects, variations are divided into the following three categories:

12.1. Latent Conditions – items that were unknown at the time of Tender, and could not have been practically known or foreseen.

12.2. Contingency Items – include errors and omissions in the tender documentation, in addition to general building coordination and clarification items.

12.3. Additional Items – these items usually sit outside of the contingency, and are for new items that are added to the contract after tender eg Client initiated requests, or recommendations from the architects or engineers to enhance the project scope.

13. As identified in the July Report, the extent of Latent Conditions far exceeded expectations and several of the variations could be directly attributed to address previous work undertaken at the Centre.

14. At the 22 July 2014 meeting, Council resolved in part (C9802):

“……That in due course (but at the earliest appropriate time) the CEO report to Council on responsibility for latent defect matters that have arisen after release of the tender documents, including identifying possible remedies available to Council to recover damages or compensation.”

Legal Advice

15. Over the life of the George Bolton Swimming Centre Burnside, there have been three known major upgrades prior to the present project. The most recent upgrade was undertaken in 2005 and included the installation of new pool pipework, upgrades to the internal change room areas and further landscaping works.

16. There may also have been a number of minor projects undertaken at the site to repair pipework or items that had reached the end of their economic life.

17. Council Administration sought legal advice on Council’s request from Piper Alderman lawyers and provided (on-hand) details relating to the most recent upgrade, in addition to the July 2014 Report to Council.

18. The advice received has been provided in full in Attachment A to this Report.

19. The pertinent question is whether there is the opportunity for the City of Burnside to recover additional costs from others, for any of the Latent Conditions encountered on-site.

20. The advice received suggests that while a claim may be possible, it would be the responsibility of Council to establish ‘proof’ of fault or negligence, to enable such a claim to be warranted and successful.

21. The on-hand records do not provide this ‘proof’ required, and initial further searches through the Records Archives has not encountered further information relating to the previous upgrades that would provide some insight into who undertook works to what scope under whose direction and approval.

22. To undertake further searches could be time-consuming, costly and may not provide any further clarity or information.

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23. In addition, any actual claim would need to be able to identify with certainty the actual head contractor and/or subcontractor who undertook the work, the approved scope of work that they were issued, any variations to that scope of work, who authorised the scope of work and who approved any variations at that point in time, which will prove difficult when considering multiple works has been undertaken over several years.

24. Building standards and methods of construction have changed over time and ‘expert evidence’ may be required regarding the relevant standards at the time the work was undertaken to determine whether they were fit for purpose.

25. Within the advice received, it is stated that claims generally need to be brought within six years of the events to which they relate.

26. Any claim is likely to be vigorously defended and complex to prosecute, and would likely be considered within the District Court, which is likely to take two to three years to prosecute, and may involve costs of over $100,000.

27. All of this suggests that should Council be inclined to pursue this matter and that before any decision is made to commit to that action, that Council consider the costs versus benefits of that course of action.

28. The first step is to consider whether the required evidence exists (the Administration, through the initial searches, has not encountered any new information relating to the previous work at the site).

29. Should Council wish to investigate its options further with respect to seeking potential claims, Council’s Record Management Team will have to commence the process of doing further investigation in determining whether further relevant evidence exists. This would take some time, and it is unknown the length of time and cost required to complete the exhaustive search required.

30. Further legal advice would then be required to determine whether any records located would be sufficient to warrant any further claim/s.

31. Noting that Federal, State and other local government Councils have all experienced similar issues with Brownfield construction projects and considering our legal advice, the Administration do not recommend undertaking any further action in respect of the matter. It is very difficult to substantiate the success rate of similar claims against previous contractors/subcontractors who have undertaken work at a project site, particularly where some time has elapsed between projects and the amount of evidence and proof is scant particularly with regard to any negligence. In addition, even if Council were successful in a claim, it is important to note that reimbursement of costs and the exact proportion can depend on a number of variables. The range is generally one third to two thirds of actual costs.

Conclusion

32. Council requested legal advice on the likelihood of success in pursuing claims against previous contractors/subcontractors who have undertaken work at the site in respect to the Latent Conditions encountered during the George Bolton Swimming Centre Burnside Refurbishment project.

33. The legal advice is attached for Council’s consideration.

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Our Ref: AGJR.390995

Your Ref:

12 September 2014

By Email: [email protected]

City of Burnside 401 Greenhill Road TUSMORE SA 5065 Attention: Samantha Atkins

Dear Sirs

Subject to legal professional privilege

Swimming centre construction project latent conditions advice

You have asked us to advise the City of Burnside in relation to works being undertaken at the George Bolton Swimming Centre specifically with respect to various site conditions identified as “Latent Conditions”.

You have provided us with:

1. Report item 19.1 from Council Meeting of 16 November 2004 on “Burnside Swimming Centre – Pipework infrastructure condition”.

2. Report item 21.1 from Council Meeting of 15 February 2005 on “Burnside Swimming Centre – Tenders for Repair of Pipework.”

3. Burnside Swimming Centre Council Report 26 June 2014 from Design Inc.

4. A series of photographs which we believe formed part of the 2014 report.

5. A variation schedule for George Bolton Swimming Centre Burnside Redevelopment – Attachment B.

6. Report item number 14.1 to Council dated 22 July 2014 re “GEORGE BOLTON SWIMMING CENTRE BURNSIDE PROJECT BUDGET INFORMATION (OPERATIONAL)”.

We have also discussed the matter on the telephone on two separate occasions.

Type of claims possible

There are a range of potential claims available to the Council with respect to the issues identified as “Latent Conditions” in the variation schedule. Without knowing more we will assume that they are properly characterised as “Latent

Lawyers

Adelaide Sydney

Melbourne Brisbane

ABN 42 843 327 183

Level 16 70 Franklin Street Adelaide SA 5000 Australia

All correspondence to: GPO Box 65 Adelaide SA 5001 Australia

DX 102 Adelaide

t +61 8 8205 3333 f +61 8 8205 3300

www.piperalderman.com.au

Partner:

Andrew Robertson t +61 8 8205 3442 [email protected]

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Biskup

Attachment A

To: City of Burnside Date: 12 September 2014 Our Ref: AGJR.390995 Page: 2

29542246v1

Conditions” pursuant to the relevant contract. We note that the report indicates the process of identifying “Latent Conditions” involves a detailed review and assessment of each claim.

The question you wish for us to consider is whether there is the opportunity for the City of Burnside to recover these additional costs from others. The “Latent Conditions” do not relate to

natural features of the site but rather are what can be loosely described as inadequate or obsolete works. These arise from previous activity on the site. We note that the reports to Council refer to several upgrades having occurred to the site over time.

The material suggests that the last extensive work was done in 2005 with the site itself being almost 50 years old having been constructed in 1965 and officially opened in 1966. This creates practical difficulties of proof. The various circumstances described as “Latent Condition”

may have arisen from the activities of a single contractor at a specific time or from works conducted by multiple contractors working at the site over different periods. Do you have the records to immediately identify which contractor and when undertook each of the works associated with the issues identified? As discussed further below we expect the issues of proof will significantly impede prospects for a successful recovery.

A legal claim related to the “Latent Conditions” would generally be directed at the previous

contractors who have worked on the site and would most likely be based on arguments founded on either a breach of the relevant contract and/or negligence.

Other claims are possible including claims based on various statutes but they will raise further difficult issues of proof beyond those discussed below.

Requirements of Proof

Whatever argument is used to seek to establish culpability the onus will be on the City of Burnside to establish the elements of the relevant claim in order to access a remedy. That is the City of Burnside will have the onus of proof and if it cannot establish each element of a claim as being more like than not then it will fail overall in its claim.

Based on the material we have seen in relation to the “Latent Conditions” in order to have an

arguable claim the City of Burnside would need to establish the following elements:

1. Who

The first element is to identity the contractor that performed the work that is now considered to be a “Latent Condition”. The question of who will include an assessment

as to whether that entity continues to trade and the prospects of the contractor having the financial resources to respond to any claim. There is no commercial value in a claim against a company of no substance.

2. When

You also need to know when the contractor performed the work and when the City of Burnside first became aware of the “fault”. Although listed as a separate element because of the time issues discussed below presumably if you can identify who did the work (element 1) and the contract under which it was done (element 3) the question of when the work was done should not present any real difficulty.

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3. Terms of contract/duty of care

The next element which is critical is the contract under which the contractor performed the work. The precise terms of the contract will determine what the contractor was, and wasn’t, required to perform. We will need to identify the terms and conditions and all variations as the contract was performed. Terms and conditions are expressed thoughout the contract document. This obviously includes any general or special conditions but would also include any portion of the scope or specification which have operative clause ie parts that require the doing of something. It also is not just the written contract but can include terms and conditions implied into the contract either as a matter of fact or by operation of law.

The contract will be important even if the claim ultimately made is not directly based on the contract but that the work was negligently performed. An element in establishing a negligence claim is the standard of care required and determining the standard of care will involve reference to the contractual environment.

4. Breach of contract/Breach of duty of care

The next thing to be proven is that the “Latent Condition” arose from the failure to perform a contractual obligation or a breach of the relevant duty of care. Even if the work required by the contract was done was it to a standard that was adequate. So the breach of contract may be a failure to perform a contractual task or the inadequate performance of a contractual task.

To establish a contractual claim we need to show both the contract and the breach of contract. To establish a claim in negligence we need to demonstrate a duty of care and a breach of that duty.

5. Causative loss or damage

The final element is establishing the loss or damage that is logically connected with the breach of contract/breach of duty. The City of Burnside needs to show the breaches identified at step 4 caused the loss connected with the “Latent Condition”. We also

have to show the value of the loss/damage which has actually been suffered. This is likely to be the value of the Latent Condition but we would not be surprised if portion of any argument dealt with whether the City of Burnside has acted reasonably in response to the breach.

The work done may be reasonable for your present circumstances but if it wasn’t

caused by the breach then it will not be fully recoverable. The City of Burnside will not be able to recover costs incurred beyond that strictly necessary to rectify any breach. Without yet having full details an argument may be raised that some repair work places the City of Burnside in a better position than simply rectifying the breach. In those circumstances you would not be able to recover the full costs incurred but only the portion caused by the breach.

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Unknown information may complicate any claim being made

It appears that these threshold issues will be difficult as the history of many of the “Latent

Conditions” appear to be unknown from their description in Attachment B for example (the bolding is our emphasis):

“Additional demolition of pipes and sumps to plantroom - Buried and previously

unidentified. Obstructing installation of new services.”

“Unknown services to the plantroom - Existing services such as gas and water,

pipework locations unknown. Required remediation to isolate and identify which were

still active and which were redundant.”

“Concrete slabs to entry - Additional concrete to the existing entry required demolition.

Under existing paving, up to 3 previous layers of concrete discovered

(undocumented) and needed to be removed to run services and maintain falls.”

This is not exhaustive of the “Latent Conditions” which appear, from their description, to have significant uncertainty as to their background. By definition conditions described as a “Latent

Condition” involve the discovery of conditions which were previously unknown ie latent. In those circumstances the identification of potential wrong doers and the proof of such claims self-evidently face difficulty in relation to a site of this age.

We need to be able to identify with certainty and precision which contractor did which work. Multiple works undertaken over many years creates potential difficulties in proof of these issues. Further standards and methods of construction change over time which is relevant to establishing any breach. This may require expect evidence regarding the relevant standards at the time the work was undertaken. Expert evidence would increase the cost of recovery action given the specific requirements as to the form and nature of such evidence in Court proceedings.

These are not insurmountable difficulties but they do complicate the picture and will need to be considered at the time of making a decision on whether claims will proceed.

Timing issues

The issues of proof are further complicated, both legally and practically, by the passage of time. Practically evidence tends to be lost over time and memories fade.

Legally generally claims need to be brought within 6 years of the events to which they relate. Section 35 of the Limitation of Actions Act 1936 (South Australia) require recovery action for actions based on contract or tort1 “be commenced within six years next after the cause of action

accrued and not after”.

We say generally speaking because the law around when the time starts to run can be quite complex especially for negligence. The time limit starts to run from when the claim accrues and for an action in negligence the claim accrues when the damage is suffered not when the duty of care is breached. Contract claims will usually accrue when the breach of contract occurs, even

1 Negligence is an action founded on tort.

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if you were unaware of it. This may mean that claims in negligence are not time barred until much later than a claim in contract arising from the same facts.

A breach of contract can arise from any breach of a term of the contract. The term may be an express contractual warranty or it may be in some other form. For the purposes of time limits how the obligation arose contractually and its characterisation is generally irrelevant ie express or implied, warranty or condition. All breaches are treated the same.

Sometimes the precise contractual wording can complicate timing issues: does the clause require something to be done during the performance of the contract so the breach occurs when it is not done at that time or does the clause require something to be done upon the giving of a notice such that there is no breach until after the giving of a notice? Is there a time limit for the giving of a notice? These issues require a careful review of the wording of individual contracts.

This whole analysis is further complicated by section 48 of the Limitation of Actions Act 1936 (South Australia) which can extend the time for the bringing of a claim when “facts material to

the plaintiff's case were not ascertained by him until some point of time occurring within twelve

months before the expiration of the period of limitation or occurring after the expiration of that

period and that the action was instituted within twelve months after the ascertainment of those

facts by the plaintiff”. In other words when new “facts material” have been identified this can give rise to a new 12 month window for the bringing of a claim. As you might expect what is or isn’t a material fact has generated quite a significant body of law. It has also been narrowed by Parliament by section 48 (3a) of the Limitation of Actions Act 1936 (South Australia) to an “essential element of the plaintiff's cause of action” or facts which “have major significance on

an assessment of the plaintiff's loss.”

We simply do not have enough detail to comment further on whether any potential claim is time barred. Such an assessment requires both a detailed review of the facts and a careful technical assessment on the significance of any material facts.

Cost:benefit analysis

Based on the material received we cannot identify the potential parties against whom the City of Burnside might proceed or the likely prospects of any claim. While it does appear that there is a theoretical prospect that claims may be made whether you wish to pursue such claims also raises practical issues.

Any claim is likely to be vigorously defended and complex to prosecute, given the comments above. We do not have the details of the value of claims. We cannot tell how much of the requested increased contingency relates to claims which may be the subject of recovery action. Any action in the District Court, which is the appropriate Court for claims over $100,000, will likely take two to three years to prosecute, although longer is certainly not unknown, and in itself cost over a $100,000. An unsuccessful litigant will generally have to pay some of the “costs” of

the other party although it will never amount to full reimbursement of costs and the exact proportion can depend on a number of variables. The range is generally one third to two thirds of actual costs.

Therefore assuming a potential claim of $150,000 is identified the best case scenario assuming a claim can be made out against a party with the financial resources to pay a judgement is likely to be a net outcome of say: $150,000 (damages award) + $50,000 (costs award in your favour)

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- $100,000 (cost incurred) = $100,000. If the claim were unsuccessful then the net outcome would be a net payment out of $150,000: - $50,000 (costs award against you) - $100,000 (cost incurred).

The more complicated the case the greater the costs and the greater the delay. Given the period of time that needs to be reviewed the actual costs to be incurred could be significantly greater than estimated. In addition to the direct costs there will also be the calls on Council time and resources especially as we expect there will need to be a very thorough and detail review of the records held in a variety of locations within Council ie it is likely that at least both the engineering and accounting departments will have records relevant to any claims and that would need to be reviewed both at the outset and also during any litigation for discovery/disclosure purposes.

All of this suggests that before any decision is made to commit to any action that a careful commercial cost:benefit analysis be undertaken. The first step is to consider whether the required evidence exists. The second step is to consider if the evidence exists how much it will cost to identify and collate. You may be in a position to form some view as to whether the matters we have identified are capable of being dealt with economically.

Going forward

Once you have had an opportunity to consider the matters reviewed in this letter we suggest we further discuss whether, and if so how, the City of Burnside wish to pursue these matters.

Yours faithfully Piper Alderman Per: Andrew Robertson

Partner

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Item No: 14.4 To: Council Date: 14 October 2014 Author: Graeme Brown – General Manager, Corporate Services Contact: 8366 4250 Subject: BROWN HILL KESWICK CREEK STORMWATER MANAGEMENT

PLAN – PART B REPORT (STRATEGIC) Attachments: A. Brown Hill Keswick Creek Stormwater Management Plan – Part

B Report (provided under separate cover) Prev. Resolution: C8995, 29/1/13



2. That Council receives the Brown Hill Keswick Creek Stormwater Management Plan ‘Part B’ Report dated September 2014 from the Brown Hill Keswick Creek Stormwater Management Project Group.

3. That Council notes that the Brown Hill Keswick Creek Stormwater Management Plan Part B Report recommends Option D – Creek Capacity Upgrade as a preferred technical solution to flood mitigation in Upper Brown Hill Creek.

4. That Council notes that the five Councils (Adelaide, Burnside, Mitcham, Unley and West Torrens) will seek to commence community consultation to finalise ‘Part B’ Works of the Brown Hill Keswick Creek Stormwater Management Plan within the first quarter of 2015.

5. That Council notes that feedback collected from the community during the consultation period will be summarised and presented to the five catchment Councils who will then review and make a final recommendation to the Stormwater Management Authority on ‘Part B’ Works of the Brown Hill Keswick Creek Stormwater Management

Purpose

1. To provide Elected Members with information pertaining to the Brown Hill Keswick Creek Stormwater Management Plan – Part B Report, which was released to the public and media on 9 September 2014.

Strategic Plan


“Natural environments and watercourses protected and conserved in both the Hills Face and the Plains”


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3.1. Council has been apprised of the status of the project through a number of Reports and Information Documents since project inception.

3.2. The CEOs of the five Councils have all agreed in principle to the recommendations of the Brown Hill Keswick Creek Stormwater Management Plan Part B Report (Part B Report) subject to community consultation and direction of their relevant Councils.

3.3. The other four Councils have all considered a similar Report on the matter and have resolved in accordance with the general position noted within Recommendation of this Report.

3.4. The BHKC Project Team has undertaken limited consultation on the options noted within the Part B Report including the creek owners directly affected by the recommended solution.

3.5. The formal community engagement and consultation process on the Part B Report has been scheduled to occur early in 2015 after caretaker period and the formation of the new Council.

Statutory

4. On 26 February 2013, the Stormwater Management Authority (SMA) resolved to approve the 2012 Brown Hill Keswick Creek Stormwater Management Plan but also resolved to inform the Councils that the approval of the 2012 Brown Hill Keswick Creek Stormwater Management Plan in accordance with the Local Government (Stormwater Management) Amendment Act 2007 does not represent a commitment or approval by the Authority of any funding contribution towards the implementation of the Plan.

Policy

5. The following Council Policies and Strategies are relevant in this instance:

Asset Management

Water Sensitive Urban Design

Watercourse Management

Biodiversity Strategy

Open Space Strategy

Risk Assessment

6. The following risks have been identified:

6.1. The State and Federal Governments have not yet agreed to provide any funding for the project (Parts A or B). Without this funding, the five Councils cannot progress with detailed design and construction.

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6.2. All five Councils are committed to the project and it is the Steering Groups belief that finalising ‘Part B’ Works will assist in finalising a funding request to both the State and Commonwealth.

6.3. Should funding not become available, this leaves the Councils no other option but to require the SMA to directly take over the project.

Finance

7. The City of Burnside has made a provision of approximately $9.381m over the next nine years in the Long Term Financial Plan.

8. The immediate financial impacts are as follows:

Discussion

9. At its meeting on 28 August 2012, Council endorsed the Stormwater Management Plan (SMP) for the Brown Hill Keswick Creek Stormwater Project jointly developed by the Cities of Adelaide, Burnside, Mitcham, Unley and West Torrens.

10. The main objective of the 2012 BHKC Stormwater Management Plan is to mitigate the risk and reduce the impact of major flooding on properties within the BHKC catchment, up to and including a 100 Year Average Recurrence Interval (ARI) flood. A 100 year ARI flood is also referred to as a 1 in 100 year event, and has a 1 per cent chance of occurring in any given year.

11. The endorsed plan committed the five catchment Councils to an agreed group of structural flood mitigation works described in the Stormwater Management Plan 2012 (‘Part A’ Works), including detention basins in the South Park Lands.

12. The endorsed plan also committed the five catchment Councils to further investigate alternatives to structural flood mitigation works in the Upper Brown Hill Creek catchment described in the Stormwater Management Plan 2012 (Part B Works), specifically involving feasible options that preferably exclude a flood control dam in upper Brown Hill Creek.

13. The five Council’s under order from the Stormwater Management Authority (SMA) where given 12 months to finalise a suitable engineered solutions to the ‘Part B’ Works.

14. This review has now been finalised as per the requirement from the SMA on ‘Part B’ flood protection works relating to upper Brown Hill Creek and as per the decision of the five Council’s to explore a ‘No Dam’ option.

15. The Brown Hill Keswick Creek Project Steering Group comprising of Chief Executive Officers, Technical Officers and delegates have undertaken an extensive review of options that achieves the desired flood mitigation properties of a 1:100 rain event.

FY 14/15 Budget Capital Allocation

Proposed FY 15/16 Budget Capital

Allocation

FY 14/15 Budget Operating Allocation

Life of Project / Life Expectancy of Asset

YES YES YES YES

$0.886m $2.104m $0.059m Varies from 50 – 100

years

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16. These included:

16.1. revised hydrology (rainfall) data released in mid-2013 by the Bureau of Meteorology and updated runoff forecasts (hydrologic modelling);

16.2. updated assessments of creek channel capacity;

16.3. updated hydraulic modelling and floodplain mapping showing the extent of stormwater inundation beyond the watercourse; and

16.4. updated project cost estimates based on the revised technical information.

17. From applying revised data, the changes to flooding impact reflects the following:

17.1. reduced peak 100 year flows by up to 26 per cent in parts of the upper Brown Hill Creek catchment; and

17.2. decreased the estimated number of properties impacted by a 1 in 100 year flood over the entire Brown Hill Keswick Creek catchment from over 6,000 (2012 SMP) to approximately 2,000 properties – of which approximately 1,200 would experience above-floor flooding.

18. Due to the reduced level and extent of forecast flooding, a greater length of the creek has the capacity to carry the predicted flood flows.

19. This has meant that the ‘Creek Capacity Upgrade’ which was previously dismissed as an option is now feasible.

20. Eight options (Table 1 – Summary of Eight Options Explored) have now been investigated to manage stormwater flows in the upper Brown Hill Creek catchment (upstream of Anzac Highway).

Table 1 – Summary of Eight (8) Options Explored

Option Flood Detention Dam

High Flow Bypass (culvert)

Creek capacity upgrade Cost ($m)

A1 Site 1: Brown Hill Creek Recreation Park

Malcolm Street to Victoria Street

Anzac Highway to Leah Street; Cross Road to Hampton Street $56.9m

A2 Site 2: Ellisons Gully

Malcolm Street to Victoria Street

Anzac Highway to Leah Street; Cross Road to Hampton Street

$61.6m

B1 Site 1: Brown Hill Creek Recreation Park

None Anzac Highway to Leah Street; sections between Mitchell and Malcolm Streets; Cross Road to Hampton Street; Fife Avenue

$40.9m

B2 Site 2: Ellisons Gully

None Anzac Highway to Leah Street; sections between Mitchell and Malcolm Streets; Cross Road to Hampton Street; Fife Avenue

$44.1m

C1 No dam Hampton Street to Victoria Street via the railway corridor with Malcolm

Anzac Highway to Forestville Reserve; sections upstream of Hampton Street

$64.9m

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Option Flood Detention Dam

High Flow Bypass (culvert)

Creek capacity upgrade Cost ($m)

Street leg (Route 3A)

C2 No dam Hampton Street to Victoria Street via suburban streets (Route 3)

Anzac Highway to Forestville Reserve; sections upstream of Hampton Street

$67.9m

C3 No dam Hampton Street to Victoria Street via the railway corridor without Malcolm Street leg

Anzac Highway to Forestville Reserve; sections between Douglas and Malcolm Streets; sections upstream of Hampton Street

$52.3m

D No dam None Anzac Highway to Forestville Reserve; sections between Victoria and Mitchell Streets; Orphanage Park; Douglas to Malcolm Streets; Cross Road to Hampton Street; sections upstream of Hampton Street to Muggs Hill Road

$35.5m

Notes:

1. The above options all include works to upgrade Brown Hill Creek between Anzac Highway and Forestville Reserve. This section of the creek, technically, is an item of the Part A Works. However, in comparing options it has been included in the assessment of the Part B works as the extent of works in this section varies between the eight options and its cost therefore impacts on the overall cost of the Part A Work

2. All of the above options include undertaking maintenance works along the full length of upper Brown Hill Creek in order to rehabilitate the creek towards achieving a state of good condition. Under the NRM Act creek owners have the responsibility to maintain the creek in ‘good condition’.

3. 3. Under all options, some bridges and culverts at road crossings of the creek would be upgraded to give increased flow capacity as required.

21. Of these eight, Option D ‘Creek Capacity Upgrade’ has been identified as the preferred

option by the Brown Hill Keswick Creek Project Steering Group:

21.1. is deemed the most cost effective, the lowest capital cost ($35.5m) by a margin of about $5m; the lowest annual maintenance cost of $162,000 per annum and the lowest present value whole of life cost ($31.5m);

21.2. it provides the required (100 year ARI) level of flood protection;

21.3. for shorter duration storms it provides a higher than 100 year ARI level of flood protection;

21.4. it satisfies the project Councils’ endorsed position to give preference to a feasible ‘no dam’ solution;

21.5. does not require bypass culverts in suburban streets;

21.6. it preserves sites of heritage significance; and

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21.7. it is within the budgeted cost for Part B as estimated in the SMP ($27.3m compared with $28.5m).

22. The preferred option, ‘Option D’, involves upgrading the capacity of the creek at critical sections over the length of upper Brown Hill Creek, as well as upgrading specific choke points such as bridges.

23. This option provides the same flood mitigation protection as other options but does not require a flood detention dam or high flow bypass culverts; a technical report has been provided which talks to the benefits of the Creek Capacity Upgrade in the Part B Report.

24. However this proposal has and may attract criticism from those properties impacted by the preferred works, as ‘Option D’ impacts on an additional 44 properties that would not be impacted if a dam was built in upper Brown Hill Creek

25. It is therefore recommended that prior to the five Council’s making a final decision; the BHKC Stormwater Project Group would seek community feedback on the Part B Report.

26. This would involve individual contact with approximately 36 properties in Unley Council and 30 in Mitcham Council through which the creek flows, noting preliminary discussions have been held with the residents to discuss the project and to hear their concerns.

27. These properties are located in the following reaches of upper Brown Hill Creek on/between:

27.1. Victoria Street and Goodwood Road to Mitchell Street, Millswood;

27.2. Douglas Street to Malcolm Street, Millswood;

27.3. Cross Road to Belair Road, Torrens Park; and

27.4. Mitcham Shopping Centre to Brown Hill Creek Road.

28. If the five Councils where to proceed with the BHKC Stormwater Project Groups preferred option, the Project Group would negotiate with each of the impacted property owners with a view to agree on;

28.1. Detailed designs to increase creek capacity to ensure any works integrate with existing landscape treatments. Importantly, it is not proposed to concrete the creek. Instead, the project aims to retain as far as possible a natural creek environment. Where this is not possible, or the sides of the creek banks need further stabilisation, the type of materials that could be used include dry stone walling or gabions.

28.2. Arrangements for ongoing maintenance (as properties change ownership) to ensure protection of a publicly funded asset. The project would need to obtain either a written maintenance agreement with the property owner or an easement over the area of creek bed and bank being upgraded. Compensation may be payable for an easement.

Conclusion

29. The five Councils wish to finalise the ‘Part B’ Works for Upper Brown Hill Creek in accordance with the Storm Water Management Plan 2012.

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30. Council notes that the Part B Report (made available to Elected Members separately to this Report) recommends ‘Option D’ as a preferred technical solution to flood mitigation properties in upper Brown Hill Creek.

31. Council notes that the five Councils (Adelaide, Burnside, Mitcham, Unley and West Torrens) will seek to undertake community consultation to finalise Part B Works of the Stormwater Management Plan within the first quarter of 2015.

32. Council notes that feedback collected from the community during this period will be summarised in a report that will be provided to the five catchment Councils who will then review and make a final recommendation to the Stormwater Management Authority on Part B Works.

33. The Part B Report was released on 9 September 2014 with the intended purpose to provide public access to the report prior to undertaking community consultation, this would provide the sufficient time for the community to digest the report; prepare questions and seek feedback on the proposed solution.

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Item No: 14.5 To: Council Date: 14 October 2014 Author: Kevan Delaney – Manager, Engineering Services General Manager and Division

Louise Miller Frost – General Manager, Urban Services

Contact: 8366 4257 Subject: ROAD PROCESS ORDER AND EASEMENT EXCHANGE –

15 AND 17 MOORCROFT COURT, BURNSIDE (OPERATIONAL) Attachments: A. Preliminary Plan 13/0036

B. SA Water submission Prev. Resolution: C9180, 28/5/13



2. That in exercise of it powers under section 15 of the Roads (Opening and Closing) Act 1991, Council resolve to make a Road Process Order to close the portion of road reserve at Moorcroft Court, Burnside marked ‘A’ on Preliminary Plan 13/0036 (Attachment A) and, that the Chief Executive Officer is authorised to take all steps and exercise any powers necessary and incidental to carrying this decision into effect.

3. That where any documentation required to give effect to the transactions set out above is required to be executed under seal, the Chief Executive Officer and the Mayor are authorised to sign and affix the City of Burnside seal to that documentation.

Purpose

1. To provide Elected Members with the outcome of public consultation in regard to the proposed road closure of a portion of unused road reserve in front of 15 and 17 Moorcroft Court, Burnside and to seek approval to make a road process order.

Strategic Plan


“Sustainable, engaging and functional community public spaces and streetscapes”

“Fit for purpose and cost effective infrastructure that meets community needs”

“An effective transport network that supports safe and efficient movement, connecting people and places”



3. Maloney Field Services commenced a public consultation process on 10 October 2013 regarding the proposed road closure in accordance with the requirements of the Roads (Opening and Closing) Act 1991. This included:

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3.1 Lodging a preliminary plan with the Surveyor-General;

3.2 Public notices in the Messenger and Government Gazette; and

3.3 Serving notices on parties directly affected by the proposal.

4. In accordance with the Act, any person has a right to object to the proposal and any person affected by the proposal may apply for an easement within 28 days of the date of public notice.

5. One submission was received from SA Water advising that it had no objection to the proposed road closure (Attachment B).

6. On 11 June 2014, Maloney Field Services advised that a survey plan for the road closure and drainage easement have been completed and Council may proceed with the proposed road closure.

Statutory

7. The following legislation and standards are relevant in this instance:



Roads Opening and Closing Act 1991

AS 1742 Manual of Uniform Traffic Control Devices

Policy


Risk Assessment

9. The Administration does not foresee any risk associated with the making of the road process order as no objections have been received and it is an administrative step to move to the final steps in the road closure.

Finance

10. Council previously endorsed funding the road closure process through resolution C9180 of 28 May 2014. There are no further financial implications for the City of Burnside in respect of the recommendation.

Discussion

11. In summary of the Report of 28 May 2013, the Administration was approached by the purchaser of 15 and 17 Moorcroft Court, Burnside with respect to locating their house and pool adjacent a Council pipe running through their property. Council did not have an easement for the pipe.

12. The property had previously encroached on an un-used portion of road reserve at the front of the property. The new owner proposed to build entirely within their property however recognised the amenity of potentially using the area of road upon which the previous owner had encroached.

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13. The Administration negotiated with the property owner to exchange an easement for the closed road and to pay for a strengthening foundation walls adjacent the drainage pipe.

14. At its meeting on 28 May 2013, Council resolved (C9180):


2. That Council approves the commencement of a road process under the Roads (Opening and Closing) Act 1991 to close that portion of road reserve at Moorcroft Court, Burnside being a land parcel of approximately 36m2 that is enclosed by the existing fence line of 17 Moorcroft Court as more particularly delineated on the Location Plan included in this report.

3. That Council delegates to the Chief Executive Officer the power to take all steps and to execute all documentation necessary to achieve the closure of portion of the road reserve as set out in Recommendation 2 above, subject to a further report being presented to Council if any person objects to or applies for an easement as a consequence of the road process.

4. The Council resolves that upon the successful closure of the portion of road reserve as above, pursuant to section 193(4a) of the Local Government Act 1999, the said land will be excluded from classification as Community Land.

5. Subject to the successful completion of the road process (as per recommendations 2 and 3 above), the Council approves the transfer of the closed portion of the former road reserve (which is surplus to the requirements of the Council) to the owner of 15/17 Moorcroft Court in consideration for the grant of an easement (to be registered against the title of 17 Moorcroft Court) to the Council, which easement is to be for drainage purposes and of dimensions that are satisfactory to the Chief Executive Officer, and the Council delegates to the Chief Executive Officer the power to undertake this process and to execute all documentation to achieve the stipulated objective.

6. That where any documentation required to give effect to the transactions set out above is required to be executed under seal, the Chief Executive Officer and the Mayor are authorised to sign and affix the City of Burnside seal to that documentation.

15. On advice from Council’s consultant who is assisting with the road closure process on the wording of the recommendation, and having complied with the requirements of the Roads (Opening and Closing) Act 1991, it is recommended that Council make a Road Process Order to close the portion of road reserve at Moorcroft Court, Burnside marked ‘A’ on Preliminary Plan 13/0036.

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Attachment A Preliminary Plan 13/0036 (draft copy)

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Biskup

Attachment A

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Attachment B

Council Agenda Item 14.6 14 October 2014 Item No: 14.6 To: Council Date: 14 October 2014 Author: Louise Miller-Frost – General Manager, Urban Services General Manager and Division

Louise Miller-Frost – General Manager, Urban Services

Contact: 8366 4257 Subject: POTENTIAL USE OF LAVER RESERVE WATER TANK FOR SKYE

WATER SOLUTION (STRATEGIC) Attachments: A. Email from SA Water

B. Letter from SA Water to Residents C. Letter from SA Water to City of Burnside D. Location of Water Tank at Laver Reserve

Prev. Resolution: N/A



2. That:

2.1 subject to a community consultation process regarding the revocation of the community land, Council agrees to transfer the Laver Reserve Water Tank and a strip of community land to SA Water for nil consideration except for the costs of the land transfer process including consultation costs.

2.2 Council Authorises the Administration to begin the Community Land Revocation process after the November 2014 elections have been declared.

Purpose

1. To update Elected Members on SA Water’s negotiations to resolve the issue of water supply to residential properties in the suburb of Skye and to seek a decision on the inclusion of City of Burnside assets.

Strategic Plan


“Develop strong partnerships with our community, stakeholders and all levels of government to achieve our Vision”

“Undertake responsible bushfire management strategies to protect and enhance the natural environment and property”

“Fit for purpose and cost effective infrastructure that meets community needs”

Communications / Consultation


3.1 The Administration continues to meet with Vickie Chapman, Member for Bragg and SA Water representatives. SA Water representatives are taking the lead in finding a solution to the water issues at Skye, acknowledging that their most recent legislation provides greater flexibility.

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3.2 The attached letter is from SA Water that has been sent to residents in the suburb of Skye. SA Water has sent a copy to the City of Burnside for information (Attachment B).

3.3 The City of Burnside has received an email from SA Water confirming that they will be including Council’s Laver Reserve Water Tank (the Water Tank) as part of possible solutions to the water supply issues (Attachment A) and requesting that it be transferred to them for nil consideration in order to reduce the cost of any future project.

Statutory



Water Industry Act 2012

Safe Drinking Water Act 2011

Water Industry Regulations 2012

Water Resources Act 1997

South Australian Water Corporation Act 1994

Fire and Emergency Services Act 2005


Local Government (Elections) Act 1999

Policy

5. The following Council Policies are relevant:

Bushfire Risk Management Policy

Caretaker Policy

Risk Assessment

6. The Water Tank at Laver Reserve was constructed in 2010 to provide water supplies for the CFS in the event of a bushfire. That is its only purpose. Any solution involving the Laver Reserve Water Tank will, of necessity, need to address the issue of CFS water supplies in times of emergency.

Finance

7. SA Water has requested that the Water Tank be transferred to SA Water for nil consideration. This would, of necessity, require a small portion (estimated to be 100m2) of community land being transferred either from the City of Burnside to SA Water, or from community land to road reserve. This would mean a decrease in Council assets and decrease in future maintenance costs. It should be noted that the Water Tank is four years old and the current maintenance costs are minimal.

8. The Water Tank (excluding land) has a written down value of $47,008 as at 1 January 2015 (projecting to a possible transfer date should this be approved). The Laver Reserve land value is calculated at $35.45 per square metre and the piece in

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question is approximately 100m2. Transfer costs including costs of statutorily required land revocation consultation are estimated at approximately $5,000 and surveying for any land transfer or change in usage of the land from community land to road reserve would cost approximately $1,500.

Discussion

Background

9. In February 2014, Council received notification that Foothills Water Company (FWC), one of the five private water suppliers in the suburb of Skye, was planning to cease trading as of the end of August 2014. Council estimates that this will affect between 19 and 25 properties in Skye, either as vacant properties, or as customers of the FWC.

10. Following community and Council pressure, SA Water, a wholly owned subsidiary of the SA Government, has taken the lead in identifying a solution for water supply to this suburb.

11. The Administration has been attending semi-regular meetings with SA Water representatives and Vickie Chapman, Member for Bragg, where SA Water has been keeping stakeholders up to date on their progress.

12. On 22 July 2014, SA Water announced that it had negotiated a 12 month extension to the water supply provided through FWC in order to facilitate a solution without disadvantaging residents. This agreement is between FWC and SA Water and the City of Burnside is not a party to it.

Discussion

13. On 11 September 2014, the Administration received an email from SA Water (Attachment A) which updated the current position of their project, and also attached a letter that they are circulating to residents in Skye (Attachment B).

14. The letter informs residents that it is continuing to develop possible solutions; that it is working with the other existing private water companies in the area; and that they will be holding public meetings in mid-October 2014.

15. The accompanying email and a subsequent email and letter (Attachment C) confirm that SA Water is including Council’s 77 kilolitre Water Tank situated at Laver Reserve as part of the resources that could be brought into use to develop the solutions. SA Water has requested that the Water Tank be transferred to their ownership for nil consideration.

16. The Water Tank was built by Council in 2010. Its purpose is to provide water for CFS vehicles should it be required during fire fighting operations. This was considered prudent because Skye is in the Adelaide Mount Lofty Ranges Fire Ban District and has no other water sources of sufficient quantity to provide water reliably in an emergency situation.

17. The Water Tank was built mostly on road reserve but is also partly on Laver Reserve which is zoned community land (Attachment D).

18. Any solution to the water supply issues in Skye involving SA Water providing a mains pressure supply may resolve the issue of access to water for CFS, either through the Water Tank or through other infrastructure. This consideration has been raised with SA Water and the Administration will ensure this requirement is considered in any proposed solutions.

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Council Agenda Item 14.6 14 October 2014 19. In response to the request from SA Water, Council has a number of options it may

consider:

19.1 Council could agree to transfer the Water Tank and the strip of land to SA Water for nil consideration. This would be seen to be Council contributing to the resolution of the issue for the residents of Skye and would have minimal effect on City of Burnside financially, being a small reduction in the value of assets. The issue of which party covers the transfer costs could be included in any contractual agreement.

19.2 Council could agree to transfer the Water Tank to SA Water for nil consideration and revoke community land status over the affect strip of land around the Water Tank, making the land road reserve instead. SA Water has many assets situated on road reserve so this would not be an anomaly. This would be seen to be Council contributing to the resolution of the issue for the residents of Skye, and would have minimal effect on City of Burnside financially, being a small reduction in value of assets. The difference to the first option is that City of Burnside would remain responsible for weed slashing on the strip of land, which, since Council is already slashing Laver Reserve on a semi-regular basis for fire prevention, is a minimal contribution.

19.3 Council could require SA Water to purchase the Water Tank and land for a financial consideration. While there is some precedent for the exchange of land between SA Government and City of Burnside involving an exchange of value or financial consideration, this could be considered to be City of Burnside obstructing the resolution of the water supply issue, or seeking to profit from the misfortunes of the residents of Skye. Alternately, not seeking compensation may be seen as poor husbandry of assets that belong to the ratepayers of City of Burnside.

19.4 Council could retain ownership of the Water Tank and the land but allow SA Water to use the Water Tank as part of the solution to the water supply issue. This would mean the asset is retained on the City of Burnside asset register, but would mean City of Burnside was liable for depreciation, maintenance and eventual replacement costs. Should the Water Tank be damaged by (for instance) earth quake, or subject to sabotage, City of Burnside would be responsible for the repair or replacement and possibly implicated in any subsequent legal action relating to water supply or water quality. The costs to City of Burnside could potentially be off-set by charging a rental or usage fee for the Water Tank, however it would mean that the City of Burnside was, to an extent, entering the water supply business, which is not core business for Council and not a service we provide (or would want to provide) elsewhere within the City. This option is not recommended.

19.5 City of Burnside could refuse use of the Water Tank. Given City of Burnside’s previous position lobbying SA Water to find a solution to the water supply issues in Skye, this may be seen as inconsistent and working against the interests of the residents in Skye. This option is not recommended.

20. While the financial quantum involved in any potential transaction is minimal and hence this issue could be resolved in Caretaker Period, this is a potentially controversial issue and Council may wish to instead give SA Water an undertaking that SA Water may use the Water Tank as part of the solution but that whether there would be a cost involved would be subject to a further resolution in the new Council. Any community consultation process regarding a community land revocation process will not occur during Caretaker Period, in line with the Caretaker Policy. This may not be an acceptable outcome for SA Water, which will want to know in advance the terms under which they would be acquiring the asset prior to making it an integral part of any solution.

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Council Agenda Item 14.6 14 October 2014 Conclusion

21. SA Water has requested the transfer of the Laver Reserve Water Tank for use in the resolution of the Skye water supply issue. They have requested this at nil consideration. Council may choose whether to accede to this request or not, and on what terms it wishes to proceed.

22. Based on the options presented, the Administration recommends that:

22.1 subject to a community consultation process regarding the revocation of the community land, Council agrees to transfer the Laver Reserve Water Tank and a strip of community land to SA Water for nil consideration except for the costs of the land transfer process including consultation costs; and

22.2 Council Authorises the Administration to begin the Community Land Revocation process after the November 2014 elections have been declared.

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From: Waltisbuhl, Kelly [mailto:[email protected]] Sent: Thursday, 11 September 2014 10:29 AM To: Paul Deb Cc: Wilson, Mark; Janet Taylor-Hughes; Dangerfield, Steve Subject: Letter to Skye community - project update Hello Paul We have organised to send a project update letter to the community today to advise meetings with the various water supply companies will be scheduled in mid-October (refer to the attached), slightly later than anticipated. The reason for the slight delay in timing has been to enable our team to carefully consider all technical options and associated costs in order to provide the community with a range of options to consider. As per recent discussions between Council and our team, SA Water have included Council’s 77 kilolitre tank in some of the water supply options currently being designed. In addition we have had a change to the project team. Laura Otrakdjian has been called to work on another project and in her absence I will be the primary contact for the project team. Please don’t hesitate to contact me if you have any questions or would like further information. Kind regards, Kelly KELLY WALTISBUHL Stakeholder Engagement SA Water T 08 7424 1988 F 08 7003 1237 M 0418 174 590 E [email protected] www.sawater.com.au Follow us on Twitter, YouTube and Flickr 250 Victoria Square/Tarntanyangga, Adelaide SA 5000 GPO Box 1751, Adelaide SA 5001 Please consider the environment before printing this email. Be green - read on the screen _______________________________________ South Australian Water Corporation disclaimer This e-mail and any attachments to it may be confidential and/or subject to legal professional privilege. If you are not the intended recipient you may not disclose or use the information contained in the message in any way. If received in error please delete all copies and contact the sender by return e-mail. No warranty is made that any attachments are free from viruses. It is the recipient's responsibility to establish its own protection against viruses and other damage.

CONFIDENTIALITY: This e-mail is from the City of Burnside. The contents are confidential and intended only for the named recipient of this email. If the reader of this e-mail is not the intended recipient you are hereby notified that any use, reproduction, disclosure or distribution of the information contained in the email is prohibited. If you have received this e-mail in error, please reply to us immediately and delete the document. VIRUSES: Any loss/damage incurred by using this material is not the sender's responsibility. The City of Burnside's entire liability will be limited to resupplying the material. No warranty is made that this material is free from computer virus or other defect.*** Think before you print ***This is one of Council's LA21 Sustainable Environmental Management initiatives.

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mailto:[email protected]


http://www.sawater.com.au/

http://twitter.com/sawatercorp

http://www.youtube.com/user/SAWaterCorp

http://www.flickr.com/photos/sawater/

Biskup

Attachment A

SA Water House 250 Victoria Square / Tarntanyangga Adelaide South Australia 5000

GPO Box 1751 Adelaide South Australia 5001

Telephone +61 8 1300 650 950

ABN 69 336 525 019

Thursday 11 September 2014

Dear Resident

RE: Water supply for the Skye community

This letter is to provide an update to the Skye community about SA Water’s progress and to outline how we will work with the Skye community and the existing water companies moving forward.

SA Water has been working with the existing water supply companies to develop and consider various options to supply water to the Skye community. The options being developed by SA Water aim to secure a sustainable, long term water supply while striving to minimise the cost to future customers who may choose to connect to an SA Water system.

Developing innovative options – update

SA Water have assessed and identified several possible options to supply water to the Skye community. Technical teams are in the process of finalising these options so we can discuss these water supply schemes with the Skye community in collaboration with the existing water providers.

Once the designs are finalised, SA Water will be able to provide further details for the possible water supply schemes and cost estimates to the Skye community.

Working with your community

SA Water will continue to work with the existing water companies in conjunction with the wider Skye community throughout this process. In collaboration with each of the water companies, SA Water will organise meetings to provide information on the water supply options and provide residents the opportunity to discuss the different water supply schemes in detail. Information will also be provided about how the Skye community will continue to be involved in the decision-making process and what will be required to implement any of the options.

Meetings are anticipated to be organised in mid-October on a week-night evening (Monday – Thursday) at about 7pm. In the coming weeks, SA Water will provide specific details about the meetings via the water supply companies.

101

Biskup

Attachment B

Contact us

If you would like any further information please contact your service provider directly, or Kelly Waltisbuhl, SA Water Stakeholder Engagement Advisor on 08 7424 1988 or email [email protected].

We look forward to working with the residents of Skye to secure a sustainable, long term water supply for your community.

Kind regards,

Steve Dangerfield Senior Manager, Stakeholder Engagement

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103

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Attachment C

104

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Attachment D

Minutes of the Eastern Waste Management Authority Inc. held on 29th

September, 2014

1

E A S T W AS T E

Member Councils: Adelaide Hills Council City of Burnside Campbelltown City Council

City of Mitcham City of Norwood, Payneham & St. Peters Corporation of the Town of Walkerville

MINUTES OF THE SPECIAL BOARD MEETING OF THE EASTERN WASTE

MANAGEMENT AUTHORITY, held on Monday, 29th

September, 2014 by teleconference

commencing at 2.30pm

PRESENT

Directors:

Mr B Cunningham Independent Chairperson

Mr Gianni Busato Corporation of Walkerville

Mr Mario Barone City of Norwood Payneham & St Peters

Mr Matthew Pears City of Mitcham

Cr Linda Green Adelaide Hills Council

In Attendance:

Mr Adam Faulkner General Manager

Mrs Ann Blinman Office Manager

1. APOLOGIES

Mr Paul Di Iulio City of Campbelltown

Cr Grant Piggott City of Burnside

2. CONFIRMATION OF THE MINUTES

Moved Cr Green that the minutes of the Eastern Waste Management Authority Ordinary

Board Meeting held on Thursday, 21st August, 2014 be received, confirmed and adopted.

Seconded Cr Busato

Carried

3. FINAL DRAFT FINANCIAL PAPERS 2013/2014

Moved Cr Busato that, the Board authorise the Independent Chair and the General Manager

to certify the 2013/2014 General Purpose Financial Reports, and that, the General Manager

distribute the 2013/2014 General Purpose Financial Reports to Member Councils

Seconded Cr Green Carried

5. OTHER BUSINESS

NIL

107

Minutes of the Eastern Waste Management Authority Inc. held on 29th

September, 2014

2

6. NEXT MEETING

The next Board Meeting to be held on Thursday, 13th

November, 2014 at the City of

Norwood Payneham & St Peters

7. CLOSURE OF MEETING

There being no further business the meeting closed at 2.45pm

Confirmed

DATE________________ CHAIRMAN_________________________

108

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i

I I

BON TONY PICCOLO MP

1- ~ f;---.~.:-~ .,,, *

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Government

of South Australia

Ref: MRS14D0519 08 OCT 2014

Minister for Disabilities

Minister for Police

Minister for Correctional Services

Minister for Emergency Services Minister for Road Safety

Mr Paul Deb

Chief Executive Officer

City of Burnside PO Box 9

GLENSIDE SA 5065

City "f [;~~ :’1~,:je I

.__....._,~....JLevel 2, 45 Pirie Street

ADELAIDE SA 5000

GPO Box 668

ADELAIDE SA 5001

Tel 0884636641

Fax 08 8463 6642

[email protected]

Dear Mr Deb

I refer to your letter dated 27 August 2014 to the Minister for Transport and

Infrastructure, the Hon Stephen Mullighan MP, regarding the fatal accident that occurred at the intersection of the South Eastern Freeway, Cross Road, Portrush Road and Glen Osmond Road on 18 August 2014, and the

subsequent decision to reduce the speed of light vehicles on the South Eastern Freeway. As the matters you raise fall within my portfolio of

responsibility, Minister Mullighan has asked me to respond to you on his behalf.

As part of the ongoing management of the South Eastern Freeway, the

Department of Planning, Transport and Infrastructure (DPTI) has

implemented the following changes from 1 September 2014:

. The speed limit for light vehicles between the Stirling interchange and the existing 80 km/h zone near the lower arrester bed on South East

Freeway has been reduced from 100 km/h to 90 km/h. To reinforce the new speed the variable speed limit signs were flashing for the

period 1 September 2014 to 7 September 2014. . For all trucks and buses, the maximum speed limit from the Crafers

interchange to the Portrush Road intersection is 60 km/h. This applies to all trucks - irrespective of the number of axles.

. The requirement that all trucks and buses must use low gear will remain. Australian Road Rule 108 requires the driver of a truck or bus to drive in a gear low enough to limit the speed of the truck or bus without the use of a primary brake.

. All trucks and buses are required to move into and use the left lane

only from the Crafers interchange until the existing signage location

near the Measdays turnoff, approximately 1.5 kilometres.

_~~t!111

DPTI will continue to work collaboratively with industry stakeholders to review the operation along this section of the South Eastern Freeway. DPTI will also engage with the community to work towards further improving safety along this section of road.

I trust that this information is of assistance.

Yours sincerely

Hon Tony Piccolo MP Minister for Road Safety

~/ to/ 2014

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Item No: 18.1 To: Council Date: 14 October 2014 Author: Louise Miller-Frost – General Manager, Urban Services General Manager and Division Contact:

Louise Miller-Frost – General Manager, Urban Services 8366 4155

Subject: CONFIDENTIALITY RESOLUTIONS ANNUAL SUMMARY REPORT (OPERATIONAL)

Attachments: A. Confidential Items Review Table Prev. Resolution: C9338, 13/8/13

C9367, 27/8/13 C9463, 22/10/13 C9790, 8/7/14 C9791, 8/7/14



Confidentiality Recommendation

1. That pursuant to Section 91(7) of the Local Government Act 1999, the documents in Attachment A to this report which have been identified to remain confidential as per the existing confidentiality orders on each of those documents except where previously released, with the exception of the confidentiality orders relating to documents in Topic 5 which are being dealt with separately to this annual review.

2. That if:

2.1 the period in respect of any order made under Section 91(7) of the Local Government Act 1999 lapses; or

2.2 Council resolves to revoke an order made under Section 91(7) of the Local Government Act 1999; or

2.3 the Chief Executive Officer determines pursuant to delegated authority that the order be revoked any discussions of Council / Committee on that matter and any recording of those discussions are to no longer be treated as confidential.

Purpose

1. To provide Elected Members with a detailed Confidential Items Status Table for the previous financial year.

Strategic Plan

2. The following Strategic Plan provision is relevant:

“Delivery of good governance in council business”


Statutory


Local Government Act, 1999

Policy and Plans


Risk Assessment

5. Regular reviews of reports or documents that are the subject of a confidentiality Order ensures that items are released to the public, in accordance with Council resolution in a timely manner.

6. There are no risks associated with the recommendation provided that confidentiality is maintained where indicated.

Finance

7. There are no financial implications for the City of Burnside in respect of the recommendation.

Discussion

8. The City of Burnside seeks to conduct its business with openness and transparency in accordance with section 90 (1) the Local Government Act, 1999 and utilises the provisions of section 90 (2) and (3) with discretion.

9. Whilst disclosure of confidential matters would enhance the accountability and transparency of Council in the performance of their official powers, duties and responsibilities and would enhance the debate of issues and public participation in democracy, the public interest has been outweighed in certain topics appearing on this Confidential Items Status Table (Attachment A) (the Table) and the continuation of confidential orders has been recommended accordingly.

10. The grounds for the confidentiality orders are in accordance with subclauses in Section 90 (3) of the Local Government Act 1999. The relevant subclause/s applicable to each Topic and Item retained in confidence is assigned in the table.

11. The recommendations consider the impact of the passage of time on the content of reports and/or availability accompanying documents.

12. The confidentiality orders are reviewed quarterly by the Chief Executive Officer (CEO) and appropriate documents have been and will continue to be released through this process.

13. A full review of all documents was conducted prior to this report being written. Documents identified in that process as being able to be released, have been released under delegation by the CEO.

14. Some Confidential Items may become eligible for release during the coming financial year according to changing circumstances, and these will be reviewed


and released under delegation or be presented to Council for further consideration as deemed appropriate by the CEO.

Conclusion

15. The Confidential Items Status Table (Attachment A) provides an updated summary of confidentiality orders as of 30 June 2014 and recommendations for continuation of confidentiality as deemed appropriate.