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City of hobart

 

 

 

 

AGENDA

Special City Planning Committee Meeting

 

Open Portion

 

Monday, 26 November 2018

 

at 4:00 pm

Lady Osborne Room, Town Hall


 

 

 

 

THE MISSION

Our mission is to ensure good governance of our capital City.

THE VALUES

The Council is:

 

about people

We value people – our community, our customers and colleagues.

professional

We take pride in our work.

enterprising

We look for ways to create value.

responsive

We’re accessible and focused on service.

inclusive

We respect diversity in people and ideas.

making a difference

We recognise that everything we do shapes Hobart’s future.

 

 


 

Agenda (Open Portion)

Special City Planning Committee Meeting

Page 3

 

26/11/2018

 

 

ORDER OF BUSINESS

 

Business listed on the agenda is to be conducted in the order in which it is set out, unless the committee by simple majority determines otherwise.

 

APOLOGIES AND LEAVE OF ABSENCE

1.        Indications of Pecuniary and Conflicts of Interest. 4

2.        Reports. 5

2.1     Petition to Amend Sealed Plan 125929 - 2 and 4 Bell Street, New Town. 5

 


 

Agenda (Open Portion)

Special City Planning Committee Meeting

Page 4

 

26/11/2018

 

 

Special City Planning Committee Meeting (Open Portion) held Monday, 26 November 2018 at 4:00 pm in the Lady Osborne Room, Town Hall.

 

COMMITTEE MEMBERS

Deputy Lord Mayor Burnet (Chairman)

Briscoe

Denison

Harvey

Behrakis

 

ALDERMEN

Lord Mayor Reynolds

Zucco

Sexton

Thomas

Dutta

Ewin

Sherlock

Apologies:

 

 

Leave of Absence:

Deputy Lord Mayor H Burnet.

 

1.       Indications of Pecuniary and Conflicts of Interest

Ref: Part 2, Regulation 8(7) of the Local Government (Meeting Procedures) Regulations 2015.

 

Aldermen are requested to indicate where they may have any pecuniary or conflict of interest in respect to any matter appearing on the agenda, or any supplementary item to the agenda, which the committee has resolved to deal with.

  


Item No. 2.1

Agenda (Open Portion)

Special City Planning Committee Meeting

Page 5

 

26/11/2018

 

 

2.       Reports

 

2.1    Petition to Amend Sealed Plan 125929 - 2 and 4 Bell Street, New Town

          File Ref: F18/139361; 548553

Memorandum of the Manager Development Compliance and the Legal Officer of 22 November 2018 and attachments.

Delegation:     Council


Item No. 2.1

Agenda (Open Portion)

Special City Planning Committee Meeting

Page 6

 

26/11/2018

 

 

 

Memorandum: City Planning Committee

 

Petition to Amend Sealed Plan 125929 - 2 and 4 Bell Street, New Town

 

1.      INTRODUCTION

1.1.     An application has been submitted to the Council by way of a petition under section 103 of the Local Government (Building and Miscellaneous) Provisions Act 1993 (“LGBMP Act”) to amend sealed plan 125929 by deleting a private right of way in favour of Lot 2 (the petition). 

1.2.     The land on which the right of way is located is comprised in Certificate of Title 174932/1 and forms part of No. 4 Bell Street. The owner of No; 4 Bell Street is the petitioner, Richard Swifte.

1.3.     The owner of No. 2 Bell Street, David Tabarth whom is affected by the proposed amendment has asked to be heard in opposition to the petition. 

1.4.     Section 104 of the LGBMP Act requires the Council to hold a hearing for any petitioner and those persons who have asked to be heard.

1.5.     The parties are:

1.5.1.     Petitioner

Richard Swifte

1.5.2.     Respondents

David Tabarth

 

2.      EXECUTIVE SUMMARY

2.1.     A petition to amend Sealed Plan 125929 has been received on behalf of Richard Swifte (Attachment A).

2.2.     The petition seeks to delete a right of way appearing on SP 125929 in favour of Lot 2 (Attachment B).

2.3.     Specifically, the petition seeks to amend the sealed plan by:

(a)          Deleting the notation on the plan of survey showing a “RIGHT-OF-WAY (PRIVATE) VARIABLE WIDTH”; and

(b)          Deleting from the schedule of easements, the words:

Lot 2 is together with * the Right of Way shown on the attached plan

*Full right and liberty for the registered proprietor of such lot his heirs executors administrators and assigns or the owners for the time being of such lot at all times here-after by day and by night and for all purposes with or without horses carriages or wagons laden or unladen to go pass and repass and to drive cattle and other animals over along and upon

 

2.4.     A full copy of the sealed plan including the schedule of easements and both titles relating to this matter are attached to this report and marked Attachment C.

 

3.         THE LEGISLATIVE PROVISIONS

3.1.     Section 103(1)(b) LGBMP Act provides that a sealed plan may be amended by the Council on an application of any person having an interest in land subject to the plan.

3.2.     Section 103(3) LGBMP Act requires a person to make the application by petition and serve a copy of the petition on all persons appearing by the registers under the Land Titles Act 1980 and the Registration of Deeds Act 1935 to have an estate or interest at law affected by the proposed amendment.

3.3.     The Council received a petition from on behalf of Richard Swifte (“the petitioner”) to amended sealed plan SP 125929 (Attachment A).

3.4.     The petitioners have provided evidence that a copy of the petition has been served on all persons having an estate or interest at law affected by the proposed amendment (Attachment A).

3.5.     Section 103(4) LGBMP Act provides that any person affected by the proposed amendment may ask to be heard in support or opposition.

3.6.     David Tabarth (“the representor”) has requested to be heard in opposition to the petition (Attachment B).

3.7.     Section 104(1)(b) LGBMP Act provides that if a person has asked to be heard, the Council is to appoint a day for hearing any petitioner and those persons who have asked to be heard.

3.8.     In accordance with section 104(2) LGBMP Act a hearing is to be by the Council or a Council committee who may –

(a)          hear persons who have asked to be heard; and

(b)          obtain the assistance of legal practitioners, architects, engineers and surveyors.

3.9.     Section 104(3) LGBMP Act provides that on the conclusion of the hearing, the Council may –

(a)          cause the amendment to be made with or without modification; and

(b)          require as a condition of so doing that any person who benefits the amendment is to make compensation in money or land to a person who is injured by it.

3.10.   Section 105(1)(a) LGBMP Act provides that a person adversely affected by an amendment is entitled to compensation by the Council if, as far as relevant, having asked to be heard under section 103(4), the person gave the Council notice of the claim at or before the hearing.

3.11.   Pursuant to section 105 (2) LGBMP Act if compensation is payable the Council may recover against the petitioner and any person heard or asking to be heard in support of the amendment to the extent to which they benefited by the amendment.

3.12.   The representor was requested to give the petitioner and the Council full particulars in writing of any claim for compensation pursuant to section 105(1)(a) LGBMP Act by 19 November 2018. The representor has requested that should the Council be minded to grant the petition, the provision of particulars of the claim be adjourned to a later date to enable the representor to present further material with respect to the issue (Attachment H).

 

4.      BACKGROUND

4.1      The petition was filed with the Council on 3 May 2018 and served on the representor on the 9 May 2018.

4.2      Following the receipt of the notice of objection by the respondent on 18 May 2018, officers proceeded to issue directions, scheduling the matter for hearing in accordance with the provisions of the LGBMP Act.

4.3      On 12 July 2018 the Council received submissions from the respondent asserting that the Council has no power to make the amendment proposed in the petition (Attachment D).

4.4      The hearing date was vacated and the petitioner was afforded a right to respond to the preliminary issues raised by the respondent prior to the Council proceeding to a hearing. The petitioner’s submissions were received on 3 August 2018 (Attachment E).

4.5      Following receipt of both parties positions on the preliminary issue officers sought independent legal advice concerning whether the Council has power under section 103 of LGBMP Act to make the amendment proposed in the petition, which was received on 26 September 2018 (Attachment F).

4.6      On 5 October 2018 officers advised that the matter would be progressing to a hearing and the advice obtained by the Council was shared with the parties.

4.7      On the 11 October 2018 officers issued directions for exchange of statements and reply statements and scheduling the matter for a hearing to determine the issue.

 

5.      THE SUBMISSIONS

5.1      The petitioner and representor were requested to file submissions 21 days prior to the date of the hearing.

5.2      The petitioner’s submissions are at Attachment G.

5.3      The representor’s submissions are at Attachment H.

5.4      The petitioner and representor were also given the right of response and reply submissions were required to be filed 7 days prior to the date of the hearing.

5.5      The representor’s response submissions are at Attachment I.

5.6      The petitioner chose not to submit a response statement.

 

6.      THE HEARING

6.1      The Committee must hear and consider the submissions and presentations made by the petitioner and representor. 

6.2      The Committee may seek professional advice through the chairperson on any options, points of consideration or issues that arise from the petitioner or representor’s presentations.

6.3      If it is considered necessary, the chairperson may adjourn the hearing to a later date to enable the parties or Council to obtain appropriate advice on matters arising from the hearing.

 

7.      THE DECISION

7.1.     On the conclusion of the hearing the Committee may either:

(a)          Make a decision on the recommendation it will make to the Council; or

(b)          Adjourn the hearing to consider what recommendation it will make to the Council.

7.2.     In accordance with section 104(3) LGBMP Act the Committee may recommend to the Council:

(a)          That the amendment be refused; or

(b)          That the amendment be made with or without modification; and

(c)          Require as a condition of making the amendment that any person who benefits the amendment is to make compensation in money or land to a person who is injured by it.

 

7.3.     The Committee must give reasons for its recommendation.

REcommendation

In accordance with section 104(3) LGBMP Act the Committee recommend to the Council:

(a)     That the amendment be refused; or

(b)    That the amendment be made with or without modification; and

(c)     If the amendment is made with or without modification, determine if as a condition of making the amendment, that any person who benefits the amendment is to make compensation in money or land to a person who is injured by it.

 

As signatory to this report, I certify that, pursuant to Section 55(1) of the Local Government Act 1993, I hold no interest, as referred to in Section 49 of the Local Government Act 1993, in matters contained in this report.

 

Kirsten Turner

Manager Development Compliance

Tom Rolfe

Legal Officer

 

Date:                            22 November 2018

File Reference:          F18/139361; 548553

 

 

Attachment a:             Petition to Amend Sealed Plan

Attachment b:             Objection to Petition

Attachment c:            Sealed Plan 125929 and Schedule of Easements

Attachment d:            Submissions Raising Preliminary Issues

Attachment e:             Reply Submissions to Preliminary Issues

Attachment f:             Advice Relating to Preliminary Issues

Attachment g:            Petitioner's Submissions

Attachment h:            Representor's Submissions

Attachment i:              Representor's Response Submissions   


Item No. 2.1

Agenda (Open Portion)

Special City Planning Committee Meeting - 26/11/2018

Page 11

ATTACHMENT a

 

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ATTACHMENT b

 

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ATTACHMENT c

 

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ATTACHMENT d

 

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ATTACHMENT d

 

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