Agenda of Special Council Meeting

Special Council Meeting Agenda 30 March 2020

5 Strategy & Development

5.1 Waste Services and Potential Impact of COVID-19 on the Delivery of Services - FOGO and Bulk Hard Waste Deferral

Attachments: Nil

Recommendation:

That Council

1. NOTES the potential impact of COVID-19 on the delivery of Waste Services and Projects.

2. APPROVES the deferral of the FOGO implementation until October 2021.

3. APPROVES the deferral of the upcoming Bulk Hard Waste collection until further notice.

Purpose of Report:

To outline to Council the impact of COVID-19 on Waste Service provision and propose the deferral of the upcoming Bulk Hard Waste Collection Service and FOGO implementation Project.

Background:

A key focus of the Waste Team in recent weeks has been to consider the impact of COVID-19 on waste service delivery and the development of a business continuity plan and measures to ensure that the essential waste collection services are maintained and the risk to public health minimised.

The main consideration for this report is the planned FOGO project implementation and the upcoming bulk hard waste collection schedule which are likely to be impacted by the COVID-19 situation.

Details:

FOGO Implementation Project

The FOGO roll-out is currently planned to be rolled out from October 2020. Amidst the COVID-19 pandemic the risks associated with the successful implementation of this major FOGO project are increased. Risks include:

- Timing - this is not considered an appropriate time to launch a major new scheme, as our community’s attention is understandably elsewhere

- Contractor availability and ability to deliver the project

- Processing infrastructure – this is already limited and previously proposed development plans may be impacted/delayed further

- Bin infrastructure availability

- The City’s attention and resources are now focussed on dealing with the implications of COVID-19 on the local community.

Given the sharply increased risks, it is recommended that we postpone the launch until October 2021, to align with contract renewal/extension timeframes.

Bulk Verge Collections – Green and Hard Waste

The collection contractor will continue and complete the current Bulk Green Waste Collection schedule, which is due for completion on Friday 17 April.

The City’s Contractor has raised serious concern regarding their ability to undertake the scheduled bulk hard waste collections, which are due to commence from Monday 20 April 2020.

They are a small team and have health concerns regarding the manual collection and compaction of potentially contaminated bulky household items, given that current health department guidance suggests the COVID-19 virus may survive on hard un-sanitised surfaces for up to 3 days. There is a risk that should operations commence and staff members fall ill or need to self-isolate, that they will be unable to complete the schedule; potentially leaving numerous waste piles on City verges.

There is currently still the option for our residents to use the City’s on-demand services for mattresses and white goods. These too are contracted services and whilst there are similar staff shortage risks associated with COVID-19, as there are a limited number of booked services, the risk is much more manageable i.e. these services can be controlled and will not involve the risk of vast quantities of waste being deposited on the verge.

The recommendation is to postpone the bulk hard waste collection service until further notice.

Consultation/Advertising:

The scheduled bulk hard waste collection dates are currently published on the City’s Website. We have put a hold on leaflet distribution pending the Council decision.

The preliminary communications regarding FOGO to date indicated an implementation timeframe from October 2020. The main communications launch is not scheduled to commence until July 2020.

For both services Administration would ensure the changes and rationale are communicated effectively to the community.

Legal/Policy:

The Bulk Hard Waste Service is a discretionary service.

The WA State Waste Strategy Target for the implementation of a FOGO three bin system is by 2025.

Risk Management Implications:

Medium: Although set-out times have been reduced to the weekend before collections, as this is the first year of this change, there is still the risk that residents may present waste up to two weeks prior, as they have been allowed to historically. If approved, it is essential that we remove all reference to the April 20 schedule and communicate the changes as soon as possible.

Low: Potential Illegal dumping incidents. Will liaise with Rangers to ensure rapid response (investigation/removal).

Medium: Disappointment from the community regarding the postponed services. Would ensure effective communications of the rationale of the change.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Enhanced Environment

We have improved resource efficiency and waste management.

Choose an item or delete if not relevant.

Innovative and Accountable (select the priority outcome below or delete if not applicable)

Choose an item or delete if not relevant.

SUSTAINABILITY IMPLICATIONS:

Delays in FOGO implementation would adversely affect waste diversion improvements, as we would not maximise the recovery of organic content from the residual bin.

Financial/Budget Implications:

Postponing the Bulk Hard Waste Service would offer operational budget savings in the region of $228,000 for the 19/20 financial year.

Postponing the FOGO implementation would offer $203,000 budgeted operational savings. Capital costs for infrastructure supply and delivery would be deferred to 2021/22.

Special Council Meeting Agenda 30 March 2020

6 Community & Business Services

6.1 COVID-19 Urgent Relief Measures

Attachments: 1. Urgent Relief Measures ⇩

2. Letter from Minister for Planning dated 25 March 2020 ⇩

3. 17.1.1 (Development Applications) of Council Delegated Authority Register (in mark up) ⇩

Recommendation:

That Council:

1. APPROVES a range of urgent relief measures to support the community and small businesses impacted by COVID-19 as outlined in Attachment 1.

2. AGREES that temporary uses and temporary changes to uses shall be permitted to operate up to three months after the current State of Emergency declared for Western Australia has ended or until 15 September 2020, whichever is the earliest, without the requirement for development approval, pursuant to Schedule 2, Part 7, Clause 61(2)(d) of the Planning and Development (Local Planning Schemes) Regulations 2015, subject to the following:

2.1 The subject property is zoned commercial, mixed use, district centre, regional centre, or local centre under the City's Local Planning Scheme No. 2;

2.2 The proposed land use is permissible in Table 1 of Local Planning Scheme No. 2;

2.3 Not more than two food businesses are registered at the property;

2.4 Business owners provide written notification of the change to the use and details of modified operation to residents prior in accordance with 1.3 of Appendix 3 of the City's Community Consultation Policy to the use commencing. Written notification shall include the business owner's contact details in the case of any issues arising; and

2.5 Written notification is provided to the City prior to the use commencing, detailing the extent of changes to the operations that are being introduced in response to COVID-19; and

3. APPROVES BY ABSOLUTE MAJORITY the following amendments to the Council delegations in 1.1.1 of the Council Delegations Register, as shown in mark up in Attachment 3:

3.1 Amendment of Express Power or Duty Delegated and condition 12 to enable the CEO to determine applications to amend a development approval that was determined by Council, provided the amendment meets all of the standards set in the City’s local planning policies and State Planning Policy 7.3 Residential Design Codes, and would not change the impact of any condition imposed;

3.2 Clarification in the Express Power or Duty Delegated that the CEO is delegated the power to determine amendments to Development Assessment Panel applications made under regulation 17A of the Planning and Development (Development Assessment Panels) Regulations 2011;

3.3 Inclusion of a new delegation to enable the CEO to determine all applications proposing a car parking shortfall under the minimum parking requirements of Table 1 of Local Planning Policy 7.7.1 Non-Residential Development Parking Requirements; and

3.4 Amendment of condition 9 to allow the CEO to determine uses not listed in Table 1 of Local Planning Policy 7.7.1 Non-Residential Development Parking Requirements.

Purpose of Report:

To seek Council’s approval for a range of relief measures to take immediate effect to support the City of Vincent’s community and local businesses impacted by COVID-19 outlined in Attachment 1.

BACKGROUND:

COVID-19 social distancing measures have had a marked impact on the lives and livelihoods of City of Vincent residents. Additionally, the City of Vincent’s own businesses have been impacted, creating gaps in service provision, while constraining revenues which would typically be redirected to social programs.

On 25 March 2020 the Minister for Planning, the Hon. Rita Saffioti wrote to all local governments requesting they “use their discretionary powers and planning processes to both promote development and support businesses during this uncertain time.” Specifically, the Minister encouraged local governments to “fast-track the assessment of development applications for non-controversial developments to support the creation of jobs”, using the examples of “pragmatic assessment of change of use proposals to promote development and flexibility in application of car parking requirements to encourage new business activation.” The Minister’s letter is included as Attachment 2.

DETAIL:

The City of Vincent has been working urgently on measures to provide immediate relief, and support recovery, for our community and local businesses impacted by COVID-19 which are outlined in Attachment 1. We propose these immediate relief measures are effective until 30 June 2020 at which stage we will report to Council on their efficacy and recommend whether they should continue or me amended.

In addition to the immediate measures detailed in this paper, a more comprehensive COVID-19 Relief and Recovery Strategy is to be considered by Council in a separate agenda paper.

Consultation/Advertising:

None. The proposed measures are designed to provide immediate relief and support to the community and small businesses.

Legal/Policy:

· Planning and Development Act 2005;

· Planning and Development (Local Planning Schemes) Regulations 2015;

· City of Vincent Local Planning Scheme No. 2;

· Policy No. 4.1.5 – Community Consultation; and

· Policy No. 4.1.22 – Prosecution and Enforcement.

Risk Management Implications:

Medium: The impacts of COVID-19 on City services, finances and our entire community are not known. These immediate measures respond to the challenges currently facing our community but will be monitored and adjusted as part of the implementation of the COVID-19 Relief & Recovery Strategy.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Thriving Places

We are recognised as a City that supports local and small business.

Innovative and Accountable

Our community is satisfied with the service we provide.

SUSTAINABILITY IMPLICATIONS:

Not applicable.

Financial/Budget Implications:

These initiatives are considered financially prudent and the impact will be revised at the end of the current financial year.

The City expects rates defaults to increase and these measures will support appropriate debtor management strategies.

Special Council Meeting Agenda 30 March 2020

6.2 $500,000 COVID-19 Arts Relief Funding from Developer Contributions Percent for Art Program

Attachments: Nil

Recommendation:

That Council

1. APPROVES the establishment of an Arts Relief Working Group, comprising three Elected Members, with the purpose of providing advice to the COVID-19 Response and Recovery Committee or Council, as appropriate, on the use of $500,000 in Percent for Art cash-in-lieu funds to provide arts relief during COVID-19

2. APPOINTS the three Elected Members to the Arts Relief Working Group for a six month term commencing 1 April 2020 and expiring 30 September

3. APPOINTS the following three Elected Members as deputy members to the Arts Relief Working Group for a term commencing 1 April 2020 and expiring at the cessation of the Arts Relief Working Group: Cr………, Cr………, Cr……….

4. APPOINTS Cr…………………………as the Chair of the Arts Relief Working Group.

5. APPROVES the use of $500,000 in Percent for Art cash-in-lieu funds to develop projects to provide local artists and creative industries relief from the impact of COVID-19.

Purpose of Report:

The report requests Council’s approval of the:

· Establishment of an Arts Relief Working Group to address the impact of COVID-19 on local artists;

· Use of Percent for Art cash-in-lieu funding for art relief projects determined by the Arts Relief Working Group; and

· Reallocation of current arts project funding for the City’s arts relief efforts.

Background:

COVID-19 will have a significant impact on the City’s artists. The City is able to provide immediate support and relief to the City’s artists through existing developer contributions cash-in-lieu funds from the Percent for Art policy.

$200,000 of these funds had previously been earmarked for the commissioning of a major public artwork which is currently under review. It is proposed that the entire $500,000 cash-in-lieu budget is directed to assist City of Vincent resident artists and creatives during COVID-19 through commissioning arts projects that are of benefit to the Vincent community.

Details:

The arts industry is particularly affected by the travel restrictions, limits on gatherings and events, and social isolation guidelines. Artists living in the City of Vincent will experience a loss of income, reduced job security and business model challenges.

Art has long been recognised as a means of reducing social isolation, connecting communities, recovering from trauma, and working through the emotional stress of difficult macro conditions. The use of the cash-in-lieu funds would support the local arts industry at a critical time and provide relief and stimulation to the wider community experiencing isolation.

The Percent for Art cash-in-lieu reserve has $480,290, and the contract liability account has $42,670, bringing the total to $522,960.

Suburb	Amount
Leederville	90550
North Perth	167950
Mount Lawley	0
Highgate	0
Perth	224460
West Perth	0
Mount Hawthorn	40000
Total	522960

Expenditure of funds, under the Local Planning Policy, is at the discretion of the City, subject to the following key points among others:

· Money will only be refunded to the Owner/Applicant if the development does not proceed or does not reach the stage of substantial commencement under City Policy No: 7.5.4;

· It must be expended on a Public Art project located on public land;

· Cash-in-lieu funds paid in relation to more than one development may be accrued for more comprehensive or detailed Public Art projects as determined by the City.

The City recommends using the money available based on each suburb. If a proposed artwork is on the edge of a suburb, then we would consider using the adjoining suburb's funds, or nearby developments' funds, as well.

The following budget allocations in the 2019/20 financial year are yet to be spent and it is recommended expenditure is held under these lines pending a revised budget which takes into account a significant and dramatic fall in City revenues from fees, parking and charging.

· $80,000 – Arts Strategy development

· $40,000 – Artist Co-working space

· $7,700 – WOMXN Arts Project Sponsorship (project cancelled by recipient)

Consultation/Advertising:

The Arts Relief Working Group will engage the local arts community in order to deliver projects on the ground quickly during the restrictions places on artists by COVID-19.

Legal/Policy:

The Arts Relief Funding relates to three City of Vincent policies:

· 3.10.7 – Art Collection Policy;

· 3.10.8 – Public Art; and

· 7.5.13 – Percent for Public Art.

Risk Management Implications:

Medium. Use of these existing and dedicated funds for public art as a relief measure from the impact of COVID-19 would provide a high community benefit during an unprecedented challenge to the local arts industry.

Administration would support the Arts Relief Working Group to manage public consultation and delivery risks associated with the shortened timeframes.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Connected Community

An arts culture flourishes and is celebrated in the City of Vincent.

We have enhanced opportunities for our community to build relationships and connections with each other and the City.

Thriving Places

We are recognised as a City that supports local and small business.

Innovative and Accountable

Our resources and assets are planned and managed in an efficient and sustainable manner.

Financial/Budget Implications:

It is recommended that the entire Percent for Art cash-in-lieu reserve of $500,000 is accessible for Arts Relief projects as identified by the Working Group over the next six months.

Special Council Meeting Agenda 30 March 2020

7 Chief Executive Officer

7.1 COVID-19 Relief & Recovery Strategy & Implementation Plan

Attachments: 1. City of Vincent COVID-19 Relief & Recovery Strategy ⇩

Recommendation:

That Council:

1. ENDORSE the City of Vincent COVID-19 Relief and Recovery Strategy, included as Part 1 to Attachment 1; and

2. NOTE the City of Vincent COVID-19 Relief & Recovery Implementation Plan included as Part 2 to Attachment 1 will be updated and reported as required to the City’s COVID-19 Committee and Council.

Purpose of Report:

To consider the City’s COVID-19 Relief and Recovery Strategy and Implementation Plan.

Background:

The COVID-19 pandemic is impacting our community and organisation.

The impacts of the pandemic continue to emerge and evolve rapidly.

The City is proposing to respond to the impact of COVID-19 through a Relief and Recovery Strategy and Implementation Plan with a range of short, medium and long terms actions.

Details:

The City’s Relief & Recovery Strategy document is divided into two parts.

Part 1 is the Relief & Recovery Strategy. This part provides a summary of the COVID-19 context, sets out the purpose and structure of the approach, provides a governance structure for the City to implement the Plan and sets out the guiding principles during each phase of recovery.

Part 2 is the Implementation Plan. This part includes a summary of directives and requests that the City has received, the various stimulus packages and announcements from the State and Federal Government’s and sets out the key actions that the City will be undertaking to provide relief and recovery from the impact of COVID-19.

The City proposes to form a new Council COVID-19 Relief & Recovery Committee to oversee the implementation of this Strategy and Implementation Plan.

In line with this governance approach Part 1 of this document is intended to be adopted by Council. Part 2 is intended to be a live document that is updated and reported regularly to the COVID-19 Relief & Recovery Committee. Some actions in the Implementation Plan will be determined by the COVID-19 Relief & Recovery Committee and require formal decisions of Council. The COVID-19 Relief & Recovery Committee will also lead stakeholder engagement and communications with the community. This structure will allow the City to continuously monitor and respond to the changing nature of the COVID-19 pandemic.

The Strategy includes three key Objectives relating to how the City recovers from the pandemic and the Objectives focus on our health and wellbeing, our community and our organisation. The Strategy also includes principles to guide decision making during the various phases of recovery.

The Implementation Plan sets out the key actions that the City will undertake to support the recovery of our community and organisation from the COVID-19 pandemic. A copy of the document is included as Attachment 1.

Consultation/Advertising:

None.

Given the urgent nature of the City’s response to COVID-19 it is not proposed to consult on the Strategy. The City has been undertaking extensive engagement with State Government, other local governments, local businesses, residents and ratepayers since the commencement of the COVID-19 pandemic. This engagement has informed the development of this Strategy.

Stakeholder and community engagement will continue through weekly meetings of the COVID-19 Relief & Recovery Committee.

Legal/Policy:

Nil.

Risk Management Implications:

It is low risk for the City to endorse a Strategy and Implementation Plan.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Connected Community

We have enhanced opportunities for our community to build relationships and connections with each other and the City.

Thriving Places

We are recognised as a City that supports local and small business.

Innovative and Accountable

Our resources and assets are planned and managed in an efficient and sustainable manner.

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

The cost to prepare the Strategy and Implementation Plan has been met through the City’s existing operational budget. Specific actions in the Implementation Plan are anticipated to have impacts on the City’s budget and these will be considered separately by Council as part of budget preparations.

Comments:

The COVID-19 Relief & Recovery Strategy and Implementation Plan will provide a framework for the City to ensure it is best placed to understand the impacts of the COVID-19 on the community in the short term and put in place a range of measures to support recovery over the medium and long term.

Special Council Meeting Agenda 30 March 2020

7.1 Establishment of a COVID-19 Relief and Recovery Committee

Attachments: 1. Covid-19 Relief and Recovery Committee - Terms of Reference ⇩

2. Covid-19 Relief and Recovery Committee Meeting Schedule ⇩

Recommendation:

That Council:

1. APPROVES BY ABSOLUTE MAJORITY, in accordance with section 5.8 of the Local Government Act 1995, the establishment of the COVID-19 Relief and Recovery Committee, comprising of 3 persons, to provide oversight of the City’s COVID-19 Relief and Recovery Strategy, provide advice to Council on actions under the strategy and make timely decisions under delegation from Council;

2. ADOPTS the Terms of Reference for the COVID-19 Relief and Recovery Committee as at Attachment 1;

3. APPROVES BY ABSOLUTE MAJORITY, in accordance with section 5.10 of the Local Government Act 1995, the appointment of the following Elected Members to the COVID-19 Relief and Recovery Committee as committee members, effective 31 March 2020;

1. Mayor Emma Cole

2. Cr______________

3. Cr______________

4. APPROVES BY ABSOLUTE MAJORITY, in accordance with section 5.11 of the Local Government Act 1995, the appointment of the following Elected Members to the COVID-19 Relief and Recovery Committee as deputy committee members, effective 31 March 2020;

1. Cr______________

2. Cr______________

3. Cr______________

4. Cr______________

5. Cr______________

6. Cr______________

5. In accordance with section 5.17 of the Local Government Act 1995, DELEGATES the following powers and duties to the COVID-19 Relief and Response Committee:

5.1 Power to accept tenders over $250,000 in accordance with section 3.57 of the Local Government Act 1995 and regulation 18 of the Local Government (Functions and General) Regulations 1996;

5.2 Power to dispose of property in accordance with section 3.58 of the Local Government Act 1995;

5.3 Power to waive fees or grant concessions or write-off debts over $5,000 in accordance with section 6.12 of the Local Government Act 1995;

5.4 Power to grant licences under regulation 17 of the Local Government (Uniform Local Provisions) Regulations 1996;

5.5 Power to determine an application for development approval under clause 68 of Schedule 2 of the Planning and Development (Local Planning Scheme) Regulations; subclause 29(2) of the Metropolitan Region Scheme; and subsection 31(2) of the State Administrative Tribunal Act 2004, where that power is not delegated to the Chief Executive Officer; and

5.6 Power to determine applications to amend a development approval previously determined under delegated authority, where that power is not delegated to the Chief Executive Officer.

6. In accordance with regulation 12(1) of the Local Government (Administration) Regulations 1996, PROVIDES local public notice of the dates, times and places of the COVID-19 Relief and Recovery Committee meetings, as at Attachment 2.

Purpose of Report:

To establish a committee of Elected Members to provide oversight to the City’s Relief & Recovery Strategy and provide advice to Council on actions under the strategy – or make timely decisions under delegation from Council.

Background:

The potential impact of COVID-19 on local governments is unprecedented.

It will require local governments to make timely decisions and provide ongoing engagement with the community on the City’s relief and recovery efforts.

Committees must comprise of at least three persons, and these can be Elected Members, members of the public and staff.

In accordance with section 5.17 of the Local Government Act 1995 (LGA), Council may delegate to the committee any powers or duties under the LGA other than those requiring absolute majority or as prescribed in regulations.

In accordance with sections 5.23 and 5.24 of the LGA a committee which has delegated powers or duties must be open to the public and must include public question time. Any matters that meet the criteria in section 5.23(2) of the LGA can be considered behind closed doors. It is likely that the majority of items considered by the committee will not meet the criteria in section 5.23(2), which means the committee meetings will remain open to the public.

Details:

The key objectives of the COVID-19 Relief and Recovery Committee are to:

· Provide oversight advice of the City’s COVID-19 Relief and Recovery Strategy (Strategy);

· Make decisions on the implementation of actions under the Strategy;

· Ensure Council and the community are fully informed on the City’s COVID-19 Relief and Recovery efforts;

· Provide a weekly opportunity for the community to engage with Council on the City’s Relief and Recovery efforts;

· Make recommendations to Council on the allocation of financial resources to implement the Strategy (as an absolute majority Council decision is required);

· Approve the disbursement of Leederville Gardens Trust funds to registered Public Benevolent Institutions active within the City providing relief from the impact of COVID-19;

· Exercise discretion in the compliance with City policies arising due to impacts of COVID-19 or to facilitate the mitigation of COVID-19 impacts;

· Make decisions on the awarding tenders over $250,000, disposing of property and writing-off / waiving fees over $5,000 (under delegation);

· Grant licences for permanent structures in accordance with the City’s Development on City Owned and Managed Land Policy;

· Make decisions on the expenditure on public art projects as recommended by the Arts Relief Working Group; and

· Determine urgent Development Applications from applicants responding to the impact of COVID-19 that have not been delegated to the CEO (under delegation).

To achieve these objectives, it is recommended that Council delegate the following powers to the Committee:

· Power to accept tenders over $250,00 in accordance with section 3.57 of the LGA and regulation 18 of the Local Government (Functions and General) Regulations 1996;

· Power to dispose of property in accordance with section 3.58 of the LGA;

· Power to waive or grant concessions or write-off money over $5,000 in accordance with section 6.12 of the LGA; and

· Power to grant licences under regulation 17 of the Local Government (Uniform Local Provisions) Regulations 1996;

· Power to determine an application for development approval under clause 68 of Schedule 2 of the Planning and Development (Local Planning Scheme) Regulations; subclause 29(2) of the Metropolitan Region Scheme; and subsection 31(2) of the State Administrative Tribunal Act 2004, where that power is not delegated to the Chief Executive Officer; and

· Power to determine applications to amend a development approval previously determined under delegated authority, where that power is not delegated to the Chief Executive Officer.

The proposed Terms of Reference are at Attachment 1.

It is proposed that the committee would meet weekly for the next 3 months on Tuesdays from 5 - 6pm immediately prior to either the Council Workshop, Briefing, Meeting or Budget Workshop.

The meetings would be held via videoconference and would include public question time.

It is proposed that Council appoints 3 committee members and 6 deputy committee members. The deputy committee members may perform the functions of the committee members when the member is unable to attend.

While acting as a committee member, the deputy members have all the functions and protections of the committee member. This will ensure the committee is able to continue to operate and make decisions in the event that a number of Elected Members cannot attend due to COVID-19.

Consultation/Advertising:

Nil

Legal/Policy:

Section 5.8 of the LGA sets out the requirements for establishing a committee.

Risk Management Implications:

Low: It is low risk for Council to establish this committee to ensure Council continues to fulfil its functions during the impact of COVID-19.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Innovative and Accountable

We are open and accountable to an engaged community.

Our community is aware of what we are doing and how we are meeting our goals.

SUSTAINABILITY IMPLICATIONS:

Nil

Financial/Budget Implications:

Nil.

Comments:

Nil.

Special Council Meeting Agenda 30 March 2020

7.3 $1 million Leederville Gardens Trust COVID-19 Relief Funding

Attachments: 1. PBI - ACNC Factsheet ⇩

2. Expression of Interest ⇩

Recommendation:

That Council:

1. As trustee of the Leederville Gardens trust funds ENDORSES the allocation of up to $1 million from those funds for the provision of urgent relief of people in need as a direct or indirect consequence of the conditions imposed by COVID-19;

2. INVITES Expressions of Interest from Registered Public Benevolent Institutions to be considered for funding under Recommendation 1. above; and

3. NOTES that the outcome of the expression of interest process in Recommendation 2. above will be presented to the City’s COVID-19 Relief and Recovery Committee for consideration and approval.

Purpose of Report:

To consider whether to make a proportion of the Leederville Gardens Trust Funds available for distribution to organisation to deliver extra services and programs to address social isolation during the current COVID-19 pandemic.

Background:

In 1991 the City of Perth promoted the formation of the Lake Monger Senior Citizens’ Centre and Homes (Inc.), which was incorporated on 2 December 1991 and registered a name change on 26 June 1995 to Leederville Gardens Inc. (the Association). The Association was to develop and manage a retirement complex on land in Leederville, which was to be made available by the City and ownership transferred free of charge to the Association.

The project was clearly intended as a benevolent venture, reinforced through the original constitution and stated objects of the Association. In respect to the financial arrangements of the Association, the original constitution provided:

“Accumulated Operating Surplus

46.3 If at the end of a financial year the amount of the accumulated operating surplus exceeds the base amount then the Association shall within thirty (30) days after the date of the auditor’s certificate pay the amount of that excess to the City to be deposited by the City in a Particular Trust Account and disbursements therefrom shall only be made to public benevolent institutions which are located within the municipality of the City of Perth and which are covered by the provisions of sub-paragraph 78(1)(a)(ii) of the Income Tax Assessment Act and that the Deputy Commissioner of taxation in Western Australia shall be provided with a copy of that account, each year, at the completion of the audit.”

Clause 46(3) required payments “therefrom shall only be made to public benevolent institutions which are located within the municipality of the City of Perth and which are covered by the provisions of sub-paragraph 78(1)(a)(ii) of the Income Tax Assessment Act ….”

The Constitution was amended in 1998, with Clause 46(3) then requiring payments “from that account shall be made to one or any of those organisations which:

(i) have similar aims and objectives to the Association;

(ii) exist for the acquisition, provision, maintenance, management or extension of the existing village operated by the Association, or the purchase or construction of a similar type of village for senior citizens within the Town’s boundaries; and

(iii) are covered by the provisions of section 78(4) and Item 4.1.1 of the Income Tax Assessment Act.”

A further amendment to the Constitution in 2006 resulted in subclause (ii) has been amended to read:

“exist for the acquisition, provision, maintenance, management or extension of any existing housing, villages, flats apartments or similar accommodation operated by the Association, or the purchase or construction of a similar type of facility for senior citizens within the Town’s boundaries”.

Payments received during this period are potentially even more restricted than under the previous version of the Constitution as the Association’s Objects were also amended.

“The objects of the Association shall be:

(a) To establish and maintain housing, villages, flats apartments or similar accommodation specifically for the use enjoyment and well being of retired persons.

(b) To arrange and provide for or join in arranging and providing for the holding of exhibitions, meetings, lectures and classes in furtherance of the objects of the Association or any of them.”

In total, $2,864,786 has been transferred by the Association to the City, which inclusive of interest has now accumulated to approximately $5.5m. Distribution of these funds will be subject to the specific trust provisions that arise from the respective constitution wording. For the purpose of identifying funds available for distribution, the transferred amounts have been accumulated relative to the respective Constitution applicable at the time:

Constitution Transfers

1991 $925,405

1998 $647,840

2006 $1,291,541

$2,864,786

The funds transferred under the original (1991) Constitution are the least restricted and due to the period held and accumulation of interest, represent approximately 45% of the total funds held or $2.5m.

At the Ordinary Meeting of Council held 8 March 2016, a detailed report (9.3.5) was presented to provide a comprehensive update on the Association, together with a broad outline of the history and transition of the Association and an explanation on the terms of the Trust established through the Constitution to enable Council to make informed strategic decisions in respect to its future role at a Constitutional level. As a result, the following resolution was adopted.

That Council:

1. NOTES that in the past the City’s Administration erred in some of its advice to Council and the Leederville Gardens Inc. (Association) Board in respect to the surplus funds of the Association and that legal advice has now confirmed that under the terms of the Trust established under the Leederville Gardens Inc. Constitution, the surplus funds transferred by the Association to the City:

1.1. must be held in the City’s Trust account, despite clause 39(3) of the Constitution specifying it is to be held in a particular Reserve account;

1.2. must be distributed by the City to other public benevolent institution in accordance with the terms of the Trust of the Constitution valid at the time of the transfer, as defined in clauses 39(3) and (4) of the Constitution (and its earlier equivalent); and

1.3. in accordance with clause 39 (or its earlier equivalent) of the Constitution, neither the City nor the Association are eligible to be the recipients of any surplus funds held in Trust by the City;

2. NOTES the balance of the City’s Aged Persons and Senior Citizens Reserve (the Seniors Reserve) at 31 December 2015 was $4,167,058;

3. APPROVES BY ABSOLUTE MAJORITY the transfer of the balance of the Seniors Reserve, including accumulated interest to the City’s Trust Account, in accordance with the terms of the Trust established in the Leederville Gardens Inc. Constitution;

4. APPROVES BY ABSOLUTE MAJORITY, in accordance with section 6.8(1)(b) of the Local Government Act 1995 the reimbursement and transfer to Trust of $62,648 plus interest, transferred from the Seniors Reserve in 1998/99 and 1999/00 as a contribution towards the cost of constructing the Adult Day Care Centre at Royal Park;

5. INVITES the Board of Leederville Gardens Inc. to consider Administration’s recommendation for its reimbursement and subsequent transfer to Trust of $212,591 plus interest, transferred from the Seniors Reserve in 2002/03, 2007/08 and 2008/09 for works undertaken at Leederville Gardens Village and NOTES that a further report will be presented to Council once a decision is received from the Board;

6. NOTES that Administration intends to prepare a Draft Policy for discussion with Council Members to establish a framework for the disposition of surplus funds received from Leederville Gardens Inc. and held on Trust, to worthy and eligible organisations active in the City of Vincent, in accordance with the provisions of the Constitution; and

7. REAFFIRMS its commitment to the stewardship of the Association as outlined in the Leederville Gardens Inc. Constitution.

Details:

The City has been contemplating appropriate mechanisms and a framework for the distribution of the trust funds to worthy and eligible Public Benevolent Institutions (PBIs) active in the City of Vincent, within the provisions of the applicable Constitution.

The current COVID-19 pandemic has raised the potential of imminent hardship being experienced by many of our more disadvantaged and at-risk community members. This may place extra strain on the services and programmes currently provided by various not-for-profit, charitable or volunteer organisations and exacerbate areas of underserviced demand. Whilst it is understood that both levels of government will be initiating economic stimulus packages, these are likely to be targeted to support jobs and provide a direct stimulus to low income households.

Under the current pandemic conditions it is likely that some seniors, the disabled and homeless will experience social isolation and a potential disruption of services. Whilst local governments can support services in these areas, it is likely the City’s revenue forecasts will be impacted as a direct consequence of the effects of the virus, therefore placing increased pressure on costs. This is likely to limit the capacity for the City to allocate additional municipal funding in the short term, however the funds held in trust would enable additional services to be delivered specifically directed to provide benevolent relief from the effects of COVID-19 within our community.

Whilst further work is required to identify how best to distribute the funds received under the amended constitutions, the funds received under the 1991 constitution, together with accumulated interest are less restricted and capable of being considered in this context. Under the terms of the trust, the City can only distribute the funds to an organisation that is registered as a Public Benevolent Institution (PBI). The City is not a PBI and therefore cannot be a recipient of the funds and is unable to distribute the funds directly to individuals.

A PBI is one of the categories or subtypes of charity that can be registered with the Australian Charities and Not-for-profits Commission (ACNC). It is a type of charitable institution with a main purpose of providing benevolent relief to people in need. The term ‘Public Benevolent Institution’ does not have a technical legal meaning, however guidance is available through the ACNC (see Attachment 1).

The City could distribute funds to one or more nominated PBIs to directly or through partnerships deliver support services and programs to provide relief to individuals within the City of Vincent. This would involve calling for expressions of interest from registered PBI’s and perhaps an outline of how they could deliver these additional services, within the constraints of increasing rules around social isolation (see Attachment 2).

Consultation/Advertising:

In order to identify appropriate PBI’s, the City will publicly call for expressions of interest from registered PBI’s capable of delivering this service. A draft proposed EOI document is at Attachment 2.

Once PBI’s have expressed an interest, they will be invited to a (electronic conference) briefing to clarify any concerns or questions in respect to the funding constraints, priority relief outcomes and discuss the City's potential collaboration options.

Legal/Policy:

The City’s trustee role has been established through the Leederville Gardens Inc. constitution. It is unique and somewhat outside the normal provisions of the Local Government Act 1995 and related legislation.

Risk Management Implications:

Low

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

Connected Community

We have enhanced opportunities for our community to build relationships and connections with each other and the City.

Innovative and Accountable

We are open and accountable to an engaged community.

SUSTAINABILITY IMPLICATIONS:

N/A

Financial/Budget Implications:

The Trust funds are not included in the City’s Budget as they are held on trust and not available for the City’s use.

Due to operational and asset management requirements, it is not expected that the Association will be in a position to generate and transfer ‘surplus’ funds to the City in the medium term. In view of this, it is important to ensure that maximum benefit is achieved from the existing funds.