2012.06.05

Dear Webmaster,

Since the pontoon installation undertaken by Council in 2006 at Christmas Cove, a number of critical issues have been brought to my attention by the local community.  Most of the concerns raised with me are related to safety issues, public liability and financial sustainability of the mooring facility, in particular the questions relating to ‘duty of care’ and damage claims against the Council if there is an accident associated with the marina development.

These issues are:

• Compliance of Australian Standards to meet ‘duty of care’;
• Legal obligations to purchasers and casual users of mooring facility;
• Provisions of on-shore essential services and amenities;
• Lighting and night time safety of mooring facility;
• Safe pedestrian access;
• Electricity and water supply to mooring berths;
• Risk management and safety inspection program;
• Site security and management;
• Financial impacts on Council’s operating budgets and future borrowing program;
• Income from sale of mooring berths;
• Collection of short term mooring fees;
• Financial control and management of the facility;
• Environmental and health aspects due to lack of sewerage disposal;
• Provisions of adequate fairway width and water depth within the basin area;
• Boating safety;
• Information and warnings to casual users;
• Protection of Geological significance;
• Business and future site development plan; and
• Management and control authority.

Although I have previously communicated with the Council through letters and in person on a range of matters relating to Council’s decision to turn the boat launching facility into a marina without completing all necessary site development works, I have very little information that would enable me to answer the concerns which were put to me by the community.

In November 2011, I then decided to give notice to ask questions under Section 10 of Local Government (Procedures at Meeting) Regulations 2000, seeking information with respect to the development of the marina.  The reply to my ‘questions on notice’ provided at the January 2012 meeting can be found on http://www.buddhayatana.org/blog_KIpolis/?p=440.

Given my questions at the November meeting 2011 were not fully answered, I again issued a formal notice (on 31 May 2012) to ask further questions at the next Council meeting in June.  These questions are very specific and structured in such a manner focusing mainly on safety issues, duty of care and costs of upgrading and operating the marina which I endeavour to seek the answers for.

Cr Ken Liu
Kangaroo Island Council
P O Box 80, KINGSCOTE  SA  5223
Ph: (08) 8553 2823   Mobile: 0428 322 005
kenDOTliuATbigpondDOTcom

Question on Notice

2012 June 13th Ordinary Meeting of Council

Christmas Cove Marina Development

I have further questions on Christmas Cove Marina development arising from the reply given to me at the January 2012 meeting of Council. My questions below are relating to public and boating safety, duty of care and upgrading, maintenance and operating costs of the facilities.

Question 1:

On completion of the pontoons installation in November 2006, was there an audit or engineer report undertaken by Council to ensure compliance of AS3962- Design Guidelines for Marina before the sale of mooring berths?  If not, how will Council be certain that the marina facilities are fit for purpose and would not pose a general public risk and boating safety?

Answer 1:

For clarification none of the Marina Berths are available for sale. Originally it was planned to lease 6 Berths in total with the remainder being retained for casual hire.

Current council staff are not aware of an audit or engineers report being undertaken or measured against AS3962 -2001 – Guidelines for Design of Marinas, before the lease of mooring berths.

It is noted in the Preface of AS3962 -2001 – Guidelines for Design of Marinas; ‘the standard has been prepared as a guideline only, to provide advice and recommendations for common marina facilities’

Council has no requirement to meet any or all parts of the Standard for a marina facility from a legislative perspective.

Council staff are unable to provide an answer around ‘fit for purpose’ as this is an open ended question, in that what may be deemed suitable for one party may not be suitable for another party. i.e. one party may own a 5m half cabin boat easily transported, launched and moored, whereby another party may have a 25m Yacht which is not so easily transported, launched or moored.

Boats of various sizes have used the facilities since their inception and there have been no specific complaints that the berths were any less than they expected from a usability / ‘safety to operate from’ perspective (there have been comments with regards to level of service offered by the facilities in terms of ancillaries such as power, water, air etc). Boat owners are clearly exercising their judgement (as they are prudent to do) as to whether the facilities are suitable for their use. Information provided by Council such as soundings etc all assists them in making their judgement call.

Question 2:

Has Council ever obtained advice or a risk management report from LGMLS with respect to public liability issues for operating the unfinished development as a marina?  If so, what was the advice given to the Council?  If not, how will Council be able to honour its ‘duty of care’ and avoid future claims for damage?

Answer 2:

It is noted that on the 26 May 2003 Development Approval (DA 520/218/01) was granted for the ‘Redevelopment of the Existing Marina – Christmas Cove and Adjacent Land’. It is also noted that on the 17 April 2003 a ‘Formal Instrument of Agreement’ was signed for the Christmas Cove Redevelopment works to commence. Council documents detail the Technical Services Manager, Mr Ken Liu, was charged with this project and it is clearly indicated in several documents on file that the project was to be undertaken in a staged approach. Council staff have not been able to find any risk management report from LGMLS during TSM Liu’s implementation of this Marina project or beyond.

Whilst the ‘Redevelopment of the Existing Marina’ may still require some form of staging (funding permitting) to complete the project it should be noted the development was and still remains the ‘Redevelopment of the Existing Marina – Christmas Cove and Adjacent Land’ and is not, as Cr Liu describes ‘operating the unfinished development as a marina’.

Question 3:

Stage 1 ‘as constructed’ Christmas Cove development which was completed in December 2003 was intended for boat launching and temporary moorings only, as further development works in stage 2 & 3, comprising of revetment walling extension, basin dredging, pontoon installation and on-shore services and facilities were essential and yet to be undertaken for it being used and operated as a marina as documented in Item 17.6 of January 2004 Council meeting report http://www.kangarooisland.sa.gov.au/webdata/resources/files/Agenda_Council__0401.pdf.  Why did Council disregard this advice provided in this report and decide to turn the boat ramp facility into a marina by installing pontoons to the existing piles without completing the remaining site development?

Answer 3:

None of the senior council staff were employed, nor were they at the Council meeting referred to, nor have the ability to speak on behalf of previous Councillors, so an answer is unable to be provided as to why Council may have disregarded elements of TSM Liu’s status report on Stage 1 works or made any particular decision.

Concept Plans of the area do indicate the features listed but there is no accompanying report that would suggest that they are technical prerequisites and there is no apparent legislative requirement for these items to be implemented prior to use of the area as a marina.

As is typical of staged developments, there can be considerable variation from original concept drawings by the time subsequent stages are completed particularly when specific features (that are not either technical prerequisites or legislative requirements) are costed and found to be outside of budget provision. There are many variants of plan available in our records indicating that this must have been the case with revetment walling extensions / possible additional marina berths to the south east of the basin, present in 2001 plans, being removed and replaced with a shelving beach area for protected swimming in plans dated 2003. This would also have precluded the need for additional dredging works in this south-eastern section being required.

Given the original Stage 1 works overran by a considerable sum (with some works listed as outstanding in the January ’04 report still being incomplete), it is likely that subsequent works were restricted by availability of funds and the fact that there was no legislative / technical compliance requirement to carry out the work or to provide some of the services outlined in the original concepts. It is suspected that the decision not to install the full range of ancillary services may have also contributed to the eventual poor uptake of berth leases in 2009.

Question 4:

Stage 2 & 3 development works were estimated at $1.5M in 2004.  With a total of $9,610 mooring fees received since 2006 (less than $2,000 pa average), barely enough to maintain and operate the facilities, how will Council be able to fund the final site development and facility replacements without having to raise extra revenue through loans or increases in Council rates?

Answer 4:

Council staff may discuss or place forward recommendations to the Elected Body on how funding, including possible grant funding opportunities may assist with achieving final site development, although ultimately that is a decision for Council to make.

As mentioned above, the Concept Plans are not necessarily the final plans and there is no technical / legislative requirements to complete Stages 2 and 3 as designed originally. In fact it is questionable whether “final site development” (as described by the original stage 2 & 3) is actually an appropriate level of design for the site under the circumstances of today; whether the site requires additional design / services to generate business; whether the site should simply be operated at this level of design, are all questions that need to be answered and, as the Councillor would be aware, initial discussions around possible options have been held with Council at informal gatherings recently.

A report drawing these discussions together for Council consideration was to come to Council for the July Meeting, however owing to annual leave of the Officer involved, it has been rescheduled to be presented to Council at the August Meeting.

It is noted that the mooring fees figure quoted by the Councillor only comprises a portion of the annualised income received from users and lessees of the berths, however there is no disputing that the level of use is lower than that undoubtedly projected at the incept of the project.

Question 5:

Although there are still 10 mooring berths available for sale, how much income will be generated from leasing these mooring berths of which the funds can be utilized for meeting the shortfall left from the pontoon installation in 2006 and their replacements (every 10-15 years) due in 2020 or earlier and beyond?

Answer 5:

For clarification none of the Marina Berths are available for sale. Originally it was planned to lease 6 Berths in total with the remainder being retained for casual hire.

Two specific Christmas Cove workshops have been held with the Elected Body to work through strategies around how the Christmas Cove Marina should be developed, managed and/or marketed. These workshops will be ongoing until definitive marketing and management plans are constructed and adopted by Council. Amongst the options discussed is one where no further capital works are undertaken in the marina area and the pontoon assets are not scheduled for replacement after the current leases have expired (2030).

At the other end of the spectrum it is proposed that the Marina facilities be improved to offer a comparable level of service to other Marinas in the South East which may require significant capital investment but result in a 100% uptake of permanent leases and a significant occupation of the casual hire leases thus generating sufficient revenue to manage both the capital and operational requirements. Both cases require financial evaluation and a business case presented to Council for their consideration and this process has commenced.

Recent visual inspections of the pontoon facilities indicate that their present condition – in part a product of their level of use up to this point – currently points to them having an extended anticipated lifespan.

Question 6:

I understand that so far only two of the 12 mooring berths have been leased till 2050.  What are Council’s obligations and liabilities to the public and people who purchased the mooring berths in relation to the upgrading, maintenance and operations of Christmas Cove facilities?

Answer 6:

For clarification:

• The Council has entered a lease with the Minister for Transport until 2050 over the area deemed to be Christmas Cove.
• There are 19 possible berths on the plan with 2 that are under long-term lease. Of the remainder there are 4 that were proposed to be leased on either 5 or 21 year leases and the balance to remain as casual leases.
• As the Councillor would be aware, Council is unable to offer leases to any party for any asset for greater than 21 years in total. Options may be written into leases that offer an additional 21 years thereafter by mutual agreement. In the case of the Christmas Cove leases there is no option written in.

The lease between Council and Minister is comprehensive and the provisions around maintenance are quite specific and include (abbreviated):

• Keeping Leased Area in good and tenantable repair
• Removal of seaweed from Leased Area as necessary for normal operation of the marina
• Carry out dredging from the seabed as necessary for the normal operation of the marina
• Use best endeavours to ensure quality of water is maintained to such quality as is legislatively required.
• Ensure navigational aids, safety aids and equipment provided for the normal operation of the Marina are maintained
• Remedy any environmental harm upon the Leased Area.

The Marina berth leases are comprehensive and allow both parties definition of the level of service that needs to be provided / expected. They outline the responsibilities under the lease arrangements for both parties and align to the head lease between Council and the Minister.

Public access to mooring berths on a day / week / month casual use, fee-for-service basis is permitted for those that are not leased and for those that were always intended to remain for casual use. As with other Public Amenities, the Council has the normal duty of care to provide facilities that are safe to use and in a condition consistent with their anticipated use.

As previously reported workshops have been held with the Elected body to work through strategies around how the Christmas Cove Marina should be developed / managed / marketed. These workshops are ongoing and a report drawing options together for Council consideration was to come to Council for the July Meeting, however owing to annual leave of the Officer involved, it has been rescheduled to be presented to Council at the August Meeting.

Question 7:

What are the budget expenditures on capital works, maintenance and operations for Christmas Cove Marina proposed for 2012/13 financial year?

Answer 7:

Council has recently conducted and completed its annual budget process, including a significant public consultation process. There were no capital works identified or raised through 2012-13 budget process. Maintenance works are presently undertaken as required and are budgeted for within the Penneshaw Township Cost centre under Jetties/Boat Ramps/Wharfs budget line. The operational expenditure (before depreciation) on jetties/boat ramps/wharfs budget line planned on a whole of Island basis for 2012-13 is $43,000.

Question 8:

Does Council have a long term financial plan for the Christmas Cove Marina development?  If so, will it be available for public perusal?  If not, when will a long term financial plan be prepared and available for Council consideration?

Answer 8:

As previously reported workshops have been held with the Elected body to work through strategies around how the Christmas Cove Marina should be developed / managed / marketed. These workshops are ongoing and a report drawing options together for Council consideration was to come to Council for the July Meeting, however owing to annual leave of the Officer involved, it has been rescheduled to be presented to Council at the August Meeting.

It is anticipated that the end result of these deliberations will be a marketing plan and a management plan that will have long-term financial implications included. Any plans for Christmas Cove will be referred to the Boating Facilities Committee for their input and any resulting plans put before Council for adoption.

It is interesting to note that Christmas Cove Boat Ramp development plans currently sitting with SABFAC for consideration have been viewed somewhat separately to the overall consideration for the area and it is suggested that should SABFAC indicate their willingness to co-fund additional development in this area that the final development plans and funding proposal is only submitted after a holistic view of the Christmas Cove Marine and supporting infrastructure requirements have been considered.

 

Kangaroo Island CEO’s (Mr Andrew Boardman) footnote:

Marketing and management plans for the Christmas Cove facilities, incorporating financial requirements, are going to be an essential step for Council and the Community to have clarity around future direction for the Cove. The area needs to be considered as one development and to this end the plans will need to reflect this.

Councillors with an interest in this work (such as Cr Liu) are encouraged to participate in the workshop sessions and in the Boating Facilities Committee meetings where representatives from the Boating Community have the ability to raise and discuss issues, review plans with then the ability to raise a recommendation for Council for consultation (if required) and subsequent adoption of a particular direction.

Members of the public who have questions / concerns should also be encouraged to attend these Committee Meetings (or write to the Committee) with their queries so that they may be addressed within the right environment. Should the Committee be unable to provide answers then they will refer the queries to Officers who will return with the information required.

Councillors have been given forms that allow them to capture Community queries and we have encouraged Councillors to request that the Community member complete the form themselves to provide as much information as possible as well as establish the provenance of the issue. If people have a genuine concern / comment / feedback etc then they are generally willing to commit their issues in writing – if people have a casual issue then they generally are prepared to talk to a willing ear but not commit in writing. This can sometimes lead to an issue being elevated higher than it deserves in the scale of things and possible even elevating a personal issue to a level where action impacts the broader Community whom are not necessarily of the same mind. The notification process is therefore also a filter process to ensure that Councillors do not become mired in operational issues unless they have strategic implications.

We also consider it important from a communication perspective that Council are able to go back to the individual with a response to the issue as well as to Councillors and for us to be able to track issues to ensure that they do not arise again due to inadequate resolution in the first place.

Councillors are therefore encouraged to ask members of the public to submit their notifications / concerns / requests for information / assistance etc directly with Council. In this way these requests are logged and captured on records and each request will receive a response.