Supplementary Agenda of General Meeting

Director's Report No. CE8/23

Community and Environment Division

Date of Meeting: 12/07/2023

10 PROPOSAL TO CREATE DRAINAGE EASEMENT AT 5 BEAUMONT RD MT KURING-GAI - WASTE COLLECTION VEHICLE DEPOT

EXECUTIVE SUMMARY

· Council entered into Contract with Cleanaway to provide Waste Collection Services that commenced 1 July 2021.

· As part of that Contract, Cleanaway elected to lease 5 Beaumont Road, Mt Kuring-gai from Council, for use as a Waste Collection Vehicle Depot. The Depot will be used for truck parking, office and amenity facilities, a truck workshop and truck wash facilities, and a community recycling drop off station. Cleanaway are responsible for all site development and maintenance costs during the Lease Term.

· Cleanaway, after lodging a Development Application on 19 April 2021, received development approval on 27 October 2021.

· The conditions of consent included a requirement to create a drainage easement by way of a “positive covenant” and “restriction as to use” over the bioretention swale and sediment basin to protect this onsite infrastructure.

· The draft Instruments setting out terms of Easements intended to be created or released and of Restrictions on the Use of Land or Positive Covenants intended to be created pursuant to Section 88B Conveyancing Act 1919 are provided at Attachment 2 to Director’s Report No. CE8/23. The supporting Plan of Easement is provided at Attachment 3, and the Deposited Plan Administration Sheet at Attachment 4 to Director’s Report No. CE8/23.

· Council is the nominated authority within the Lease to grant easements or covenants over the Land.

· Cleanaway is in the final stages of completing any outstanding Tenant Works at the site, including establishing the drainage easement and undertaking Asset Protection Zones (APZ) vegetation works. Cleanaway has advised they expect to obtain an Occupancy Certificate towards the end of July 2023 when they will commence a transition into the new Depot.

· It is recommended that Council agree to the creation of the drainage easement as detailed within this Report.

RECOMMENDATION

THAT:

1. Council create a Drainage Easement with a Positive Covenant and Restrictions on Use over Lot 1124 DP 822257 being land at 5 Beaumont Road, Mt Kuring-gai.

2. The General Manager be authorised to execute documents in relation to creation of the drainage easement as deemed appropriate by Council’s legal advisors.

3. Council authorise the use of Council’s seal on any legal, survey or other documents directly related to creation of the drainage easement or positive covenant as deemed appropriate by Council’s legal advisors.

PURPOSE

The purpose of this Report is to obtain Council’s approval for the creation of a drainage easement over Lot 1124 DP 822257 at 5 Beaumont Road, Mt Kuring-gai associated with establishing a new Waste Collection Vehicle Collection Depot Leased by Cleanaway from Council under the Waste Collection Services Contract.

BACKGROUND

Council’s Waste Collection Services Contract was awarded to Cleanaway on 14 May 2020, with Services having commenced on 1 July 2021. The Tender process allowed proponents to elect to enter into a Lease with Council for the use of Lot 1124, 5 Beaumont Road Mt Kuring-gai as a Waste Collection Vehicles Depot and Transfer Station for a Community Recycling Drop Off Station. Cleanaway’s Tender provided for taking up a Lease at 5 Beaumont Road and offered discounted collection services rates for occupying the new Depot.

Cleanaway lodged a Development Application on 19 April 2021, which was determined on 27 October 2021 by the Local Planning Panel (Attachment 1). Cleanaway obtained a Construction Certificate that was issued by a Private Certifier on 13 May 2022. Cleanaway commenced site works soon after, which are now nearing completion.

The Notice of Determination – Conditions of Approval – Requirements Prior to the Issue of an Occupancy Certificate – Clause 38 - has the following requirements:

Extract from: - Notice of Determination Approval Development Application DA/471/2021

38. Creation of Easements The following matter(s) must be nominated on the plan of subdivision under s88B of the Conveyancing Act 1919:

a) The creation of an appropriate "Positive Covenant" and "Restriction as to User" over the bioretention swale and sedimentation basin, within the area in favour of Council in accordance with Council’s prescribed wording. The position of the bioretention swale and sedimentation basin is to be clearly indicated on the title.

b) To register the positive covenant restriction, the restriction on the use of land “works-as executed” details of the bioretention swale and sedimentation basin must be submitted verifying work have been constructed in accordance with the design requirements. The details must show the levels together with dimensions and grades. Any variations to the approved plans must be shown in red on the “works-as-executed” plan and supported by calculations.

Note: Council must be nominated as the authority to release, vary or modify any easement, restriction or covenant.

DISCUSSION

To meet the above development consent condition an easement including a positive covenant and restrictions on use must be created and registered under s88B of the Conveyancing Act 1919. An Instrument setting out terms of Easements intended to be created or released and of Restrictions on the Use of Land or Positive Covenants intended to be created pursuant to Section 88B Conveyancing Act 1919 has been drafted (Attachments 2-4) and reviewed by Council’s solicitors.

The easement will protect all on site infrastructure associated with urban sensitive water design and storm water capture, diversion, retention, filtration and release. The swale drain and OSD will have a restrictive use placed over those areas of the land to ensure they continue to function as designed and intended. It is noted that the site has predominately concreted surfaces across the entire lot and as a result, any surface water runoff will have inherently low sediment or pollution loads.

Any maintenance works associated with the onsite surface water management infrastructure required over the Term of the Lease will be at the responsibility and cost of Cleanaway. The Waste Collection Services Contract and associated Lease for 5 Beaumont Road, require Cleanaway to be responsible for any costs associated with approvals, licences, consents etc. Cleanaway are to directly fund any costs associated with establishing the required easement and Council is to fund any legal costs it incurs in the process. On that basis, no compensation or reimbursement of Council’s legal costs from Cleanaway is proposed.

In order to progress the creation of the required easement, Council’s approval is needed, along with Council issuing delegated authority to the General Manager to negotiate and execute the final easement documentation. Once executed the Instrument and attached plans will then be registered at NSW Land Registry Services.

CONSULTATION

In the preparation of this Report there was consultation with Council’s Solicitor Marsdens.

BUDGET

There are no budgetary implications associated with this Report as professional/legal costs to create the easements will be available from existing waste budget allocations.

POLICY

There are no policy issues raised within this Report.

CONCLUSION

The proposed easements to protect on site stormwater management infrastructure and systems at Lot 1124 DP 8222257 5 Beaumont Road Mt Kuring-gai is required to satisfy a development consent condition of the new Waste Collection Vehicle Depot being developed by Cleanaway.

Council’s approval is recommended to establish the required easement, along with issuing delegated authority authorising the General Manager to negotiate, finalise, execute and register the Instrument setting out the terms of the Easement and any other associated documents.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this Report is the Manager, Waste Management – Chris Horsey - who can be contacted on 9847-4816.

Chris Horsey

Manager - Waste Management

Community and Environment Division

Stephen Fedorow

Director - Community and Environment

Community and Environment Division

Attachments:

1.⇩	Notice of Determination DA/471/2021 - Cleanaway Collection Vehicle Depot
2.⇩	Draft Instrument for Creation of Easement
3.⇩	Plan of Easement
4.⇩	Deposited Plan Administration Sheet

File Reference: F2020/00114-002

Document Number: D08679129