Tablelands Regional Council - Agenda Thursday 06 December 2012 MILLAA MILLAA CHAMBER OF COMMERCE - TOILET FACILITY AT LOCAL CEMETERY

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1 ITEM-23 DOCUMENT INFORMATION MEETING: MILLAA MILLAA CHAMBER OF COMMERCE - TOILET FACILITY AT LOCAL CEMETERY Ordinary MEETING DATE: REPORT AUTHOR/ OFFICER S TITLE: DEPARTMENT: 6 December2012 Dean Davidson, Manager Plant & Facilities Corporate and Community Services EXECUTIVE SUMMARY The Millaa Millaa Chamber of Commerce (MMCC) have constructed a toilet facility within the Council reserve currently used as the local cemetery. No approvals have been sought by the MMCC and as such the structure provided has no building or plumbing approval. This report seeks to update Council on the work undertaken by Council Officers to date and provides recommendations for Council s consideration. OFFICER'S RECOMMENDATION "That Council advise the Millaa Millaa Chamber of Commerce: 1. to remove the current structure due to the facility not complying with the Sustainable Planning Act 2009, the Building Act 1975 and the Plumbing and Drainage Act 2002; and 2. Council is prepared to work with the Millaa Millaa Chamber of Commerce to provide a suitable and complaint structure, however this is dependant on the availability of funds from both parties." BACKGROUND On the 29 October 2012, it came to Council's attention that the below structure had been placed in the Millaa Millaa cemetery without Council approval. Since this time the interest (for and against) in the structure has been national and worldwide with coverage reported in the following mediums to name a few: Courier Mail Brisbane; Atlantic Cities Washington DC; Daily Mail UK; CBC-Radio Canada; Page 110

2 On the 31 st October 2012, Councils Plumbing Inspector carried out an initial assessment of the works undertaken. Whilst no approval had been provided in the first place, it was further determined that the structure failed to comply with plumbing and building regulations on numerous accounts. The following eight plumbing requirements were determined not to have been met: 1. Any plumbing work has to be carried out by a licensed plumber; 2. No plumbing work shall be commenced without the issuance of a permit; 3. The septic tank is not located within the cemetery boundary; 4. The septic tank has two large holes in the lid; 5. There are no obvious signs of soakage trenches; 6. All septic installations require a soil report and soakage trenches designed by a qualified consultant; 7. The hand basin is not connected to the drainage system; 8. There is no Non Potable Water sign above the hand basin tap. The report also determined that: From a building approval aspect the building fails as to the requirements for a public toilet. In this instance a unisex disabled toilet designed to strict codes would be a minimum; The structure itself is fabricated for square steel tubing and clad with trimdeck roofing iron, the structural integrity of the toilet is adequate to with stand a reasonably high wind but it could not be deemed to be cyclone rated; and The structure does not appear to represent any immediate danger to the public as the building does not have any sharp edges that could cause injury. However if someone managed to find away to injure themselves the fact that the structure is non compliant may void any public liability insurance. In addition to this, further information has been obtained from Council s Building Surveyor: 1. The unlawful toilet located at the Millaa Millaa cemetery fails to meet the provisions of the Building Act A number of legislative requirements are required to be met prior to the undertaking of building work. These include the Building Code of Australia, the Sustainable Planning Act 2009 and the Plumbing and Drainage Act These matters form part of the Queensland Government Statute Laws. Those persons involved clearly appear to have no Page 111

3 regard for compliance with the associated laws in Queensland. The legislation requires certain works to be assessed. The work in question is assessable development and is required by law to be assessed by a building certifier and a plumbing inspector for compliance prior to construction. The building was constructed without undergoing any proper assessment process under the legislation. Those responsible for the works may be prosecuted for breaches of the Act; 2. The building fails to meet proper standards. It does not comply with the provisions of AS (Design for Access and Mobility).The access to premises standard is covered under the Australian Disability Discrimination Act 1992 (DDA). There are certain requirements under the Building Act for providing access to buildings (covered in the BCA) however the DDA provides further legislative teeth and the ability for claims to be made where discrimination is identified. The Australian Human Rights Commission has provided Guidelines for understanding responsibility under both State and Federal Law. The toilet at the Millaa Millaa cemetery clearly fails to meet the provisions set out in any of the legislation or standards. A letter was hand delivered to Pat Reynolds of the MMCC on the 8 th November 2012 as part of a site visit by Council Officers to explain to Mr Reynolds the reasons behind the non-complaint structure. (Please see attached). In essence the MMCC were provided with two options: 1. Ensure the structure addresses all building and plumbing approvals, and is redesigned to a more acceptable shape at the MMCC s cost; or 2. Remove the building. My Reynolds advised that the matter would be discussed at the next MMCC meeting to be held on the 21 November 2012 as a petition was in progress and may be presented to Council at a future meeting. On the 23 November a response (Please see attached) was received from the MMCC highlighting the following points: Acknowledgement of receipt of Council's letter; MMCC has a petition signed by over 290 Millaa Millaa district community members (over 90%) who are supportive of the installation; MMCC requests the opportunity to make representations to a formal Council meeting; Council Officers have advised the MMCC they are to contact the Mayor in order to make a representation to Council. Discussions have also been held with Pat Reynolds of the MMCC regarding the following: Council is legally required to provide amenities where there are public gatherings; and The difference between the current structure and port-a-loos. Legal advice has been obtained in regards to the first point and in summary Council is not obliged to construct a toilet block on the reserve land and the allocation of Council's financial resources is at the discretion of the Council. Council Officers have also investigated other surrounding Councils to determine the level of service provided at their cemeteries. It would appear Tablelands Regional Council is no different: Croydon Shire Council - no toilet facilities (there are toilets approx 1 km away at the rodeo grounds); Cook Shire Council - no toilet facilities; Page 112

4 Cairns Regional Council - 5 out of 6 cemeteries have toilet facilities. The cemetery that doesn't have a toilet has facilities across the road at another complex; Rockhampton Regional Council - 2 out of 9 cemeteries have toilet facilities. In regards to the second point, it is not uncommon for a portable toilet to be used in certain situations. These are not intended for permanent use. These facilities are normally intended as a temporary measure where able bodied persons are involved in construction works. They enable construction sites to provide on-site facilities to meet workplace health and safety requirements. They are also used sometimes in conjunction with permanent facilities for large gatherings of people and removed after the event. They are normally not structures connected to any permanent supply or waste disposal facility and are not usually fixed structures. They are not normally used for the general public and are not designed for permanent use. LINK TO CORPORATE PLAN Asset Management Ensure a structured management approach is applied to the region s assets through a proper regime of investment, maintenance, renewal and disposal. CONSULTATION Internal Matthew Hyde - General Manager Corporate and Community Services Dean Davidson - Manager Plant & Facilities Tracey Cuthbertson - Coordinator Land and Facilities Peter Warman - Supervisor Building and Plumbing Services Kevin Cardew Building Surveyor Robin Arnold Building Surveyor Don McDermott Plumbing Inspector Mara Rooks Coordinator Cemeteries External Pat Reynolds Millaa Millaa Chamber of Commerce MacDonnells Law LEGAL IMPLICATIONS (STATUTORY BASIS, LEGAL RISKS) Land Act It is understood that the land subject to the cemetery is reserve land and that Council is the trustee for the reserve. Section 46 of the Land Act sets out a trustee's functions, which include managing the trust land consistent with achieving the purpose of the trust, fulfilling the trust within the conditions of appointment, controlling noxious plants and keeping records. There is no provision in the Land Act that compels a trustee to construct any infrastructure or provide any amenities on trust land. Section 46(2) of the Land Act further provides that "a trustee has the responsibility for a duty of care for the trust land". The construction of a toilet block without appropriate development approvals where the structure remains on the trust land may be held to be a breach of s. 46(2) of the Land Act and the Council's duty of care. Page 113

5 LGA We understand that Council has previously declined to erect a toilet block at the Millaa Millaa cemetery on the basis that to do so would not be a prudent application of Council resources. Section 102 of the LGA provides that in the interests of financial sustainability, local governments must apply the financial sustainability criteria to the expenditure of financial capital and infrastructure capital. These criteria include requirements that Council manage financial risks prudently and formulate financial policies so that current services, facilities and activities are financed by the current users of the services, facilities and activities. Therefore Council is not obliged to construct a toilet block on the reserve land and the allocation of Council's financial resources is at the discretion of the Council. Planning and building legislation The construction of the toilet block is building work for the purposes of the Sustainable Planning Act 2009 ("SPA"). 'Building work' is defined in s. 10(1) of SPA as including "building, repairing, altering, underpinning, moving or demolishing a building or structure". In order to legally undertake building work (which would also include the removal of the toilet block), a development approval will need to be obtained pursuant to the provisions of SPA and the construction may also be subject to any necessary approvals required under the Building Act Carrying out assessable development such as building work without the necessary approvals is an offence under s. 578 of SPA POLICY IMPLICATIONS NIL FINANCIAL & RESOURCE IMPLICATIONS Capital NIL Operating If the MMCC do not remove the structure, this will have to be carried out within Council s current budget if required. Is the expenditure noted above included in the 2011/2012 budget? No If not you must recommend how the budget can be amended to accommodate the expenditure Funds will be accommodated within current budget and requested in the next review. IMPLEMENTATION/COMMUNICATION 1. Inform MMCC of the Council resolution; 2. Carry out the necessary removal if required and invoice the MMCC for the associated costs if required. Page 114

6 ATTACHMENTS 1. Letter to the MMCC DWS Letter received from MMCC DWS Date Prepared: 22/11/2012 Page 115

7 ATTACHMENT 1 Page 116

8 Page 117

9 ATTACHMENT 2 Page 118