Agenda of Extraordinary Council

Ethical Decision Making and Conflicts of Interest

A guiding checklist for Councillors, officers and community committees

Ethical decision making

· Is the decision or conduct legal?

· Is it consistent with Government policy, Council’s objectives and Code of Conduct?

· What will the outcome be for you, your colleagues, the Council, anyone else?

· Does it raise a conflict of interest?

· Do you stand to gain personally at public expense?

· Can the decision be justified in terms of public interest?

· Would it withstand public scrutiny?

Conflict of interest

A conflict of interest is a clash between private interest and public duty. There are two types of conflict:

· Pecuniary – regulated by the Local Government Act 1993 and Office of Local Government

· Non-pecuniary – regulated by Codes of Conduct and policy. ICAC, Ombudsman, Office of Local Government (advice only). If declaring a Non-Pecuniary Conflict of Interest, Councillors can choose to either disclose and vote, disclose and not vote or leave the Chamber.

The test for conflict of interest

· Is it likely I could be influenced by personal interest in carrying out my public duty?

· Would a fair and reasonable person believe I could be so influenced?

· Conflict of interest is closely tied to the layperson’s definition of ‘corruption’ – using public office for private gain.

· Important to consider public perceptions of whether you have a conflict of interest.

Identifying problems

1st Do I have private interests affected by a matter I am officially involved in?

2nd Is my official role one of influence or perceived influence over the matter?

3rd Do my private interests conflict with my official role?

Local Government Act 1993 and Model Code of Conduct

For more detailed definitions refer to Sections 442, 448 and 459 or the Local Government Act 1993 and Bega Valley Shire Council (and Model) Code of Conduct, Part 4 – conflictions of interest.

Agency advice

Whilst seeking advice is generally useful, the ultimate decision rests with the person concerned.Officers of the following agencies are available during office hours to discuss the obligations placed on Councillors, officers and community committee members by various pieces of legislation, regulation and codes.

Contact	Phone	Email	Website
Bega Valley Shire Council	(02) 6499 2222	council@begavalley.nsw.gov.au	www.begavalley.nsw.gov.au
ICAC	8281 5999 Toll Free 1800 463 909	icac@icac.nsw.gov.au	www.icac.nsw.gov.au
Office of Local Government	(02) 4428 4100	olg@olg.nsw.gov.au	http://www.olg.nsw.gov.au/
NSW Ombudsman	(02) 8286 1000 Toll Free 1800 451 524	nswombo@ombo.nsw.gov.au	www.ombo.nsw.gov.au

Disclosure of pecuniary interests / non-pecuniary interests

Under the provisions of Section 451(1) of the Local Government Act 1993 (pecuniary interests) and Part 4 of the Model Code of Conduct prescribed by the Local Government (Discipline) Regulation (conflict of interests) it is necessary for you to disclose the nature of the interest when making a disclosure of a pecuniary interest or a non-pecuniary conflict of interest at a meeting.

The following form should be completed and handed to the General Manager as soon as practible once the interest is identified. Declarations are made at Item 3 of the Agenda: Declarations - Pecuniary, Non-Pecuniary and Political Donation Disclosures, and prior to each Item being discussed:

Council meeting held on __________(day) / ___________(month) /____________(year)

Item no & subject
Pecuniary Interest	In my opinion, my interest is pecuniary and I am therefore required to take the action specified in section 451(2) of the Local Government Act 1993 and or any other action required by the Chief Executive Officer.
Significant Non-pecuniary conflict of interest	– In my opinion, my interest is non-pecuniary but significant. I am unable to remove the source of conflict. I am therefore required to treat the interest as if it were pecuniary and take the action specified in section 451(2) of the Local Government Act 1993.
Non-pecuniary conflict of interest	In my opinion, my interest is non-pecuniary and less than significant. I therefore make this declaration as I am required to do pursuant to clause 5.11 of Council’s Code of Conduct. However, I intend to continue to be involved with the matter.
Nature of interest	Be specific and include information such as : · The names of any person or organization with which you have a relationship · The nature of your relationship with the person or organization · The reason(s) why you consider the situation may (or may be perceived to) give rise to a conflict between your personal interests and your public duty as a Councillor.
If Pecuniary	Leave chamber
If Non-pecuniary (tick one)	Disclose & vote Disclose & not vote Leave chamber
Reason for action proposed	Clause 5.11 of Council’s Code of Conduct provides that if you determine that a non-pecuniary conflict of interest is less than significant and does not require further action, you must provide an explanation of why you consider that conflict does not require further action in the circumstances
Print Name	I disclose the above interest and acknowledge that I will take appropriate action as I have indicated above.
Signed

NB: Please complete a separate form for each Item on the Council Agenda on which you are declaring an interest.

Extraordinary Council 24 February 2021

Item 3.1

3.1. Bruce Steer Pool Accessible Ramp

This report provides an update on the Bruce Steer Pool (Bermagui) coastal accessibility project, specifically related to recent feedback received from the project stakeholder group with respect to the accessible ramp element of the project.

Director Assets and Operations

Officer’s Recommendation

1. That Council receive and note the information in the report.

2. That Council consider the Options presented in the report.

3. That Council endorses Option 6 which involves – with endorsement from the funding partner – finalising an agreed design for the accessible ramp element of the project prior to seeking alternative funding to deliver the works at a future date.

Executive Summary

The Bruce Steer Pool accessibility upgrade works are being delivered under the “Bega Valley Shire – A Destination for All” project, funded primarily through the Restart NSW Fund. The project involves the redevelopment and transformation of key Bega Valley coastal locations into accessible destinations.

For the Bruce Steer Pool site, project elements include new public amenities, accessible parkland pathways, accessible connection to existing parking, picnic shelters, park furniture, landscaping and all-abilities water access. All project elements except for the all-abilities water access are now complete.

Recent feedback received from some of the project stakeholder group established for the project as well as some other community members with an interest has raised concern regarding the proposed ramp design. This report details the design development process and associated factors influencing revisions to the original concept and seeks direction from Council on options presented to progress the all-abilities water access.

Background

Funding for the projects was secured utilising the Coastal Accessibility Masterplan prepared for three sites across the Bega Valley Shire (i.e. Bruce Steer Pool Bermagui, Short Point Merimbula and Pambula Beach Reserve). These plans have been adopted by Council and are an example of master planning to identify the general layout and mix of facilities balancing the project objectives at each site. This method of planning, used to identify and balance key user needs and opportunities at each site, has proven effective, resulting in significant grant funding to deliver the works outlined within the plans.

Relevant approvals and design development followed execution of the funding deed. For Bruce Steer Pool, design packages were separated for the public amenities and all-abilities water access, acknowledging the specialist marine nature of the water access element of the project. The starting point for design development of the all-abilities water access was the layout / alignment included in the adopted master plan, refer Figure 1.

Figure 1 – Concept Site Layout from adopted Coastal Accessibility Plan

Item 1 in Figure 1 is the all abilities access to the water proposed in the master plan key recommendations: “Provide an all abilities concrete walkway into the water of Bruce Steer Pool which connects with surrounding pedestrian pavement areas. The walkway will be approximately 50m long and 2m wide with DDA compliant grade of 1:20 and landings at 15m intervals as required by Australian Standards.” The opinion of probable cost included in the master plan for the all-abilities concrete walkway was $44,000.00 exclusive of GST.

Following engagement of engineering firm Advisian Pty ltd, geotechnical investigations carried out identified that the depth of bedrock foundation material along the proposed alignment requires precast concrete piles to support a concrete ramp in loose sand soil strata. The minimum length of the piles would be 3.5m and twenty-eight 300mm square or 400mm circular piles would be required.

Identification of piling requirements early in the design development process flagged associated cost implications with the project team; considering this against the opinion of probable cost outlined above, a decision was made to prepare an options analysis on both alternative construction materials and alternative ramp alignment. This item was tabled at the August 2019 Access and Inclusion Advisory Committee (AIAC) meeting, with issues noted and support received from the group to investigate alternatives. Alternative construction materials investigated were fibreglass reinforced plastic (FRP) structural and decking elements on (shorter) pre-cast concrete piles. The alternative ramp alignment investigated utilised the exposed rock foundation on the eastern side of the ramp to reduce piling requirements. The findings of this options analysis are detailed in Table 1 and associated concept sketches are shown in Figures 2 through 5. Note the four options explored are referred to below as “Concepts” to avoid confusion as this report moves into the Options Section which details each option available to Council moving forward.

Concept	Detail	Estimate
1	Pre-cast concrete ramp and associated piling along original concept alignment, refer Figure 2	$493,311
2	Fibreglass reinforced plastic (FRP) ramp and associated piling along original concept alignment, refer Figure 3	$338,463
3	Pre-cast concrete ramp and associated piling along alternative (eastern) alignment, refer Figure 4	$443,856
4	Fibreglass reinforced plastic (FRP) ramp and associated piling along alternative (western) alignment, refer Figure 5	$311,792

Table 1 Options Analysis Findings (* note estimates all include a 20% contingency)

Figure 2 – Sketch of Ramp Concept 1 – Concrete path, concrete piles, western side.

Figure 3 – Sketch of Ramp Concept 2 – FRP path, concrete piles, western side.

Figure 4 – Sketch of Ramp Concept 3 – Concrete path, reduced concrete piles / rock fixing, eastern side.

Figure 5 – Sketch of Ramp Concept 4 – FRP path, reduced concrete piles / rock fixing, western side.

Concept 4 was presented and discussed at the November 2019 AIAC with a further update provided at 2 March 2020 meeting noting the challenges in achieving depth with low sloping path. The committee endorsed progressing the project at the alternative eastern alignment.

Pricing was sought from suitably qualified contractors to construct the Concept 4 ramp. All initial submissions exceeded the remaining project budget, largely due to proposed construction methodologies to achieve the design length/depth (i.e. utilisation of barges / construction from the water).

With respect to non-price assessment, initial submissions all exceeded the minimum requirements of the non-price criteria; as such the evaluation panel agreed that as all tenderers were capable of performing the works they would be approached with a view to providing alternative submissions targeting the remaining budget amount.

This secondary process resulted in receipt of three alternative submissions. Alternative submissions all proposed decreased ramp length to enable land-based construction. These deviations from the original scope enabled pricing to drop closer to the remaining budget amount and (in one case) below it.

With a key project consideration being access to the water for people of all abilities, reduction in ramp length and project budget constraints were raised again with AIAC representatives at a meeting on site on 19 October 2020 to discuss the project. The meeting included discussion on budget and RFQ outcome, reduced ramp length, tides movement and the depth of the deck and option to increase the ramp grade to a 1:14 (compliant with handrails). There was also discussion on impact of water movement on a structure on the eastern side of the site. A constructive meeting ensued whereby a reduction in overall length was deemed acceptable on the basis that the finished ramp ended as deep as possible in terms of bottom landing level and included compliant handrails. It was noted that this would likely result in a 1:14 gradient as opposed to the originally specified 1:20 gradient; again, this compromise was deemed acceptable subject to AIAC representatives inspecting the recently completed Tathra Headland Path ‘upper section’ as an example of a 1:14 grade path. This was done and the AIAC members confirmed 1:14 grade path was acceptable.

The preferred contractor from the quotation process, GPM Marine Constructions Pty Ltd (GPM), were engaged to carry out the works.

A project update memo was provided to Councillors on 27 January 2021. A project update was issued to the project stakeholder group 8 February 2021 summarising key items regarding the ramp design and construction. Responses received from certain group members have indicated a preference to move away from the eastern alignment and back to the original alignment. Also of note, feedback received from members of the AIAC express concern regarding the reduced length / depth of the ramp, and while this differs to their feedback at the site meeting in October 2020, given the specific accessibility focus of this item it is important to relay their recent comments here in order to obtain direction from Council on how to proceed.

Options

Several options are available to Council with respect to the all-abilities water access at Bruce Steer pool; these are summarised here for consideration.

The main factors to be aware of with respect to options for the project are the “Reduced Level” (or RL, a surveying term which in context relates to depth of the ramp), ramp length and cost. These factors are proportionate, and a challenge of this project has been striking an effective balance between them. Achieving a compliant ramp grade and the gradual grade of the seabed are also items that direct the design outcomes.

The RL of the bottom of the ramp plays an important role in the effectiveness of the ramp for accessing the water. The aim being those in an appropriate wheelchair are able to enter the water to a depth to achieve ‘neutral buoyancy’ so they can float off their chair into the water. That is, the lower the RL at the bottom of the ramp the greater water depth can be accessed off the ramp and more accessible the pool is to people of all abilities through all tidal ranges. Another important consideration is that the lower the RL at the bottom of the ramp the longer the ramp needs to be; meaning the more it intrudes into the pool, and need to change construction methodology, leading to a higher construction cost and more asset to maintain moving forward.

As mentioned above, discussions with the AIAC through the design development process highlighted these two factors and the correlation between them. As of October 2020, it was understood by the project team that there was acceptance of the work done in exploring alternative concepts and that the proposal discussed at the site meeting (eastern side, reduced length, 1:14 grade, as deep as achievable, compliant hand rails) was what the project team would move forward with. A contract was entered into with the preferred contractor (GPM) to deliver that project. They began detail design drawings. Correspondence received in February 2021 from some AIAC representatives is contrary to these prior discussions; with some representatives of the AIAC now suggesting an absolute minimum usable depth of 600mm at mean low water (low tide) with the preference being 900mm.

With the mean low water level (MLW) at RL -0.488 these usable depths would see the RL at the bottom of the ramp at -1.088 (minimum) and -1.388 (preferred).

With the mean high water level (MHW or high tide) at RL 0.517 the bottom of the ramp would be 897mm below water.

The following options include reference to RLs and cost estimates.

Option 1 – proceed with ramp construction as quoted

The current layout sees a shorter ramp length (40.168m down from 49.940m on the original Advisian detailed design for Concept 4) which achieves a RL depth at the lowest point of -0.380 as opposed to -0.600 on the original Advisian detailed design for Concept 4. The mean low water level (MLW) for the site is -0.488 so this option sees the lowest point of the ramp 108mm above MLW.

Note this option is based on works and discussions prior to the recent feedback received; refer following options for links to recent feedback and suggested minimum usable depths.

Figure 6 shows an overlay of this design on an aerial photograph of Bruce Steer Pool.

The cost of Option 1 ($169,900.00 exclusive of GST) is within the remaining budget for the Bruce Steer Pool site under the Bega Valley Shire – A Destination for All project.

Figure 6 – Overlay of Option 1

Option 2 – extend the current design to achieve greater ramp depth

This option to extend the current design to achieve greater ramp depth is impacted by the grade of the seabed:

· To extend on a grade of 1 in 14 would not allow the ramp to reach either of the suggested usable depths prior to it hitting the seabed.

· To extend on a grade of 1 in 20 would allow the ramp to reach both suggested usable depths. The new length of ramp would be approximately 54.2m to achieve a bottom RL of -1.088 or approximately 61.4m to achieve a bottom RL of -1.388. Figure 7 provides an indication of the additional ramp length on an overlay. Clearly to extend in a straight line is completely impractical (and would not reach the preferred lower RL), as such an alternative alignment would need to be designed (more on this in Option 3). The estimated minimum additional cost drawn from original quotations received is $230,000.00 exclusive of GST.

· To extend the ramp to approximately 49.9m on varying accessible grades as per the original Advisian detailed design for Concept 4 is also a consideration, noting the associated encroachment into the pool space. This would however result in a bottom RL of -0.600, some 488mm higher than MLW minimum usable depth suggested by the AIAC representatives and 788mm higher than the preferred usable depth. Pursuing this option would result in an estimated minimum additional cost of $60,000.00 which assumes that construction could still be land based (however this needs to be confirmed).

Figure 6 – Overlay of Option 2 at additional 21.4m

Option 3 – realign current design and extend to achieve greater ramp depth

This option would still utilise the rock platform on the eastern side of the ramp as the foundation for the higher section of the ramp, with the lower section of the ramp constructed on piles from a floating barge. To achieve a bottom RL of -1.088 would require a ramp length of approximately 57m. The estimated minimum additional cost drawn from original quotations received is $230,000.00 exclusive of GST and re-design costs. Figure 7 indicates a possible alignment and length for a ramp to achieve a bottom RL of -1.088.

Figure 6 – Overlay of Option 3

Option 4 – revert to original alignment along rock wall

As outlined in the background section this option would require a change in construction methodology and cost. If realigned along the rock wall, piling is required for either a pre-cast concrete ramp or a FRP ramp (noting that shallower piles would suffice for FRP). A 1:14 grade ramp is not achievable due to the seabed grade. Re-capping this option as outlined previously:

· A pre-cast concrete ramp and associated piling as indicated in Figure 2 results in a ramp length of approximately 53m with a bottom RL of -0.75. Extending on this alignment to achieve the suggested minimum usable depth (-is estimated at a minimum of $500,000.00 exclusive of GST or approximately $330,000.00 more than available, exclusive of GST and re-design costs. Note that these estimated costs are not market tested.

· A FRP ramp and associated piling as indicated in Figure 2 results in a ramp length of approximately 53m with a bottom RL of -0.75. Extending on this alignment to achieve the suggested minimum usable depth is estimated at a minimum of $350,000.00 exclusive of GST or approximately $180,000.00 more than available, exclusive of GST and re-design costs. Note that these estimated costs are not market tested.

Option 5 – explore non-fixed alternatives

A suggestion received following the recent stakeholder group update is to explore non-fixed options to improve access to the water, i.e. a flexible roll-out mat style access way or semi-permanent modular path similar to that utilised for ‘assisted’ beach access on other Bega Valley Shire beaches such as Pambula Beach and Main Beach (Ford Park). This type of path was trialled into the tidal area at Pambula Beach, however wave and water movement were too high at that site. Bruce Steer Pool is a more protected site. The critical point to note with this option is that such a solution gets users across the soft sand, onto the hard sand in the tidal area tidal area at the water’s edge; as opposed to into the pool to any set water mark. It is unlikely this option would include a handrail (as it is non fixed). This could be a relatively low-cost option; however, it would not fully achieve the master plan objective of an ‘all abilities’ walkway into the water. Roll out matts are labour intensive to manage and will come with high operational costs.

Figure 7 – Modular semi-permanent ‘Assisted Access’ path.

This option could be investigated further as a short-term trial or medium-term solution to aid access to the water’s edge. A non-fixed or modular solution also has potential to be moved between sites, either for temporary set periods across different sites, or for a fixed term at or until a permanent option is agreed (if that is the desired way forward, more on this in Option 6). It needs to be noted these options will require higher operational resources.

Option 6 – finalise an agreed design and seek alternative funding to deliver

This option seeks to utilise a portion of the remaining project funding to develop a detailed design for either Option 3 or 4, and to have the resultant design market tested to firm up the anticipated construction cost. Once agreed by the project stakeholder group and costed, the design could be utilised to apply for grant funding to deliver the works at a future date. In effect, development of a standalone, agreed “shovel-ready” project.

Considerations around this option include:

· The project scope change to remove / defer water access will need to be endorsed by the funding partner;

· To date the funding partner has not been approached regarding the above point, nor to enquire as to whether there would be any appetite to vary the existing funding deed with additional time and funding (however this question of course can be raised);

· The three ‘Bega Valley Shire – A Destination for All’ projects (Bruce Steer Pool, Pambula Beach and Short Point) are under a single funding deed. In agreement with the funding partner, the funding can be spent across the three sites to deliver outcomes of the project;

· There have been costs incurred by the appointed contractor which at the point of writing this report have not been clarified;

· Design cost estimate is minimum $15,000.00 exclusive of GST and assumes a single iteration; and

· There is no guarantee of funding construction of the end design through future grant opportunities.

Community and Stakeholder Engagement

Engagement undertaken

The Bruce Steer Pool stakeholder group includes representatives from the Bermagui Area Chamber of Commerce & Tourism; Bermagui Information Centre; Bermagui Surf Lifesaving Club; Bermagui Tourist Park; BVSC Access & Inclusion Advisory Committee; the Local Aboriginal Land Council; Councillors and local residents / site users expressing interest in being included in stakeholder communication.

The group represents a broad community cross-section with a range of interests in the site. Five individuals have responded to the 8 February 2021 project update distributed to the group.

Engagement planned

Continuing to update, inform and receive feedback from stakeholder groups is an important part of project delivery. It is important to understand, there are differing priorities and interests within the stakeholder group and as a result it is not possible to include all ideas and comments at all steps in a project like this. For projects to progress in terms of all deliverables, feedback needs to be considered and balanced in the context of the membership of stakeholder group (representing the broader community) and all project deliverables.

Financial and Resource Considerations

Item Bruce Steer Pool Coastal Accessibility Project Overview		$ Excl GST
Expenditure Detail
New amenities building, removal of the old amenities block, accessible pathways, stairway link to upper level, shelters, park furniture, landscaping and car park line-marking		467,693


Total Expenditure		467,693

Source of Funds
Restart NSW Fund		575,177
BVSC co-contribution		59,519

Total income available		634,696

Project Funding Remaining		*167,003*

Legal /Policy

The adopted BVSC Leisure and Recreation Policy 1.08 encourages development of fit for purpose, well used assets that ‘provide access and enable people to enjoy the environment we live in’.

Impacts on Strategic/Operational/Asset Management Plan/Risk

Strategic Alignment

The Bruce Steer Pool Accessible Ramp project has links to strategic documents as follows:

Community Strategic Plan (CSP) – feedback received in response to the “Understanding Our Place” community engagement process, which subsequently informed the CSP, included “improved recreation facilities and spaces”.

BVSC Infrastructure Prospectus – marine infrastructure is a headline project in the Prospectus and the new accessible ramp at Bruce Steer Pool will align with the key outcomes of quality infrastructure and safety.

Councils Draft Disability Inclusion Action Plan – includes action 2j. Continue to improve the accessibility of Council managed public open space and venues, and identify opportunities to undertake accessibility and amenity upgrades in major town centres.

Recreation Asset Management Plan - installation of the ramp creates a new asset to be managed by Council moving forward. When completed it will be added to Councils asset register and it will be included in the marine infrastructure management program.

Environment and Climate Change

Construction of assets in the marine environment requires a Department of Primary Industries (Fisheries) permit, the process for which has commenced.

Economic

Delivery of projects under the Bega Valley Shire – A Destination for All project links strongly with improving facilities related directly to tourism. This project provides particularly for the increasing market area of accessible tourism. Provision of quality recreation infrastructure at Bruce Steer Pool directly aligns with the coastal access project component of Council’s Infrastructure Prospectus.

Risk

There are two primary risks identified at this stage of the project. Detail about the risks are included in the attached, Councillor Only Confidential Memorandum and are classified confidential under section 10 A (2) subsection (d) and (g).

Social / Cultural

Socially, provision of improved parks and recreation facilities provides opportunities for personal health and wellbeing, social interaction and engagement within the community.

Culturally, an Aboriginal Heritage Due Diligence study conducted at Bruce Steer Pool in conjunction with a Review of Environmental Factors (REF) confirmed that as the area is largely man-made it is unlikely that any of the proposed works would impact any Aboriginal heritage sites or objects.

Attachments

1 . Confidential Memorandum to Councillors (Confidential - As this attachment contains commercial information of a confidential nature that would, if disclosed (i) prejudice the commercial position of the person who supplied it; or (ii) confer a commercial advantage on a competitor of the Council; or (iii) reveal a trade secret and advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege as per Section 10A(2)(d) and (g) of the Local Government Act 1993.

Although the above relates more explicitly to the discussion of closed business, it also forms part of the basis of justification as to why information relied upon in informing the public decisions made by Council are kept confidential. To consider this confidential material in open Council would be, on balance, contrary to the public interest (as defined in Section 14 of Government Information Public Access (GIPA) Act 2009) as it would potentially disclose private business information provided and would also impact Council’s position in relation to its consideration. This meets the requirements of Sect 10 D of the Local Government Act 1993 if Council were to close the meeting to discuss the details of individual tenderers.

Extraordinary

Meeting Notice and Agenda

To:

Copy:

Live Streaming of Council Meetings

Publishing of Agendas And Minutes

Ethical Decision Making and Conflicts of Interest

A guiding checklist for Councillors, officers and community committees

Ethical decision making

Conflict of interest

The test for conflict of interest

Identifying problems

Local Government Act 1993 and Model Code of Conduct

Agency advice

Disclosure of pecuniary interests / non-pecuniary interests

Agenda

1 Apologies and requests for leave of absence

2 Declarations

3 Staff Reports – Infrastructure Waste and Water

Extraordinary Council

24 February 2021

Staff Reports – Infrastructure Waste And Water

24 February 2021