3 PLANNING CONTEXT

3.1 Introduction

This section describes the wider legislative andpolicy framework which applies to Timbrell Park.

Full versions of the legislation referredto below are on-line at www.legislation.nsw.gov.au and www.austlii.edu.au. City of Canada Bay website: www.canadabay.nsw.gov.au.

Table 7 outlines the national, state, regional and local planning context which influences the use, development and management ofTimbrell Park.

Table 7 Planning context of Timbrell Park

Land use planning and management

Commonwealth Native Title Act 1993

Telecommunications Act 1997

Open space / active and informal recreation

Sport2030

AustralianStandardsfor playspaces

AustralianHuman RightsCommission

AdvisoryNoteon streetscape,public outdoorareas,fixtures, fittings,furniture2013

Community and culture Environment

Native Title Act 1993

Disability Discrimination Act 1992

Work Health and Safety Act 2012

Australian Standardsfor access,built facilities

Environmental Protection and Biodiversity Conservation Act

1999

Biodiversity ConservationStrategy

2010-2030

Australia’sStrategy forNature2019-2030

ThreatenedSpecies

Strategy2015

AustralianWeeds Strategy2017-2027

AustralianPest AnimalStrategy20172027

Intergovernmental Agreementonthe Environment1997

AustralianStandards forenvironmental managementsystems

NSW Aboriginal Land Rights Act 1983

Crown Land Management Act

2016

CrownLand2031

CrownLandsState StrategicPlan–A

VisionforCrown Land Local Government Act 1993

NSWPublicSpaces

Charter2021

NSWGreenerPlaces Policy2020

DraftGreenerPlaces DesignGuide2020

BetterPlacedPolicy

HerSportHerWay:

WomeninSports

FutureSportsPlans

DeliveringSportand

AntiDiscrimination Act 1997

Disability Inclusion Act

2014

NSW Disability Inclusion

ActionPlan

2020-2025

Biodiversity Conservation Act

2016

Biodiversity Conservation

Regulation2017

SEPP(Biodiversity andConservation)

2021

Biosecurity Act 2015

Noxious Weeds Act

1993

Local Government (General)

Regulation 2021

Environmental Planning and Assessment Act

1979

Roads Act 1993

Local Land Services Act 2013

SEPP(Transport andInfrastructure)

2021

ActiveRecreationin

NSW

EveryoneCanPlay:A GuidelinetoCreate InclusivePlaySpaces

2019

Companion Animals Act 1998 andRegulation

2008

Heritage Act

1977

NSW StrategicPlan forChildren andYoung People20222024

National Parks and Wildlife Act

1974

Pesticides Act 1999 and Pesticides

Regulation 2017

Our Future on the Coast: An overview of coastal manage-ment in NSW 2018

Coastal Management Act 2016

SEPP(Coastal Management)2018

Catchment Management Authorities Act 2003

Contaminated Land Management Act

1997

SEPP(Vegetationin

Non-RuralAreas)

2017

Protection of the Environment Operations Act 1997

Local Land Services Act 2013

Smoke-free Environment Act 2000 and Smoke-free Environment Regulation 2016

Soil Conservation Act

1938

Water Management Act 2000

National Parks and Wildlife Act 1974

FiveMillionTreesfor GreaterSydney (5MT)

Sydney AMetropolisof ThreeCities: GreaterSydney RegionPlan

50-YearVisionfor GreaterSydney’sOpen SpaceandParklands

2021

GreaterSydneyGreen Grid2017

GreaterSydney OutdoorsSurvey2021

SydneyMetropolitan CatchmentAction Plan2013-2023

GreaterSydney RegionalStrategic WeedManagement Plan2017-2022

Regional/ District EasternCityDistrict Plan

SydneyGreenGrid–CentralDistrict

ParramattaRiver EstuaryCoastalZone ManagementPlan

2013-2023

Canada Bay LGA

CanadaBayLocal StrategicPlanning Statement

YourFuture2030

CanadaBayLocal EnvironmentalPlan 2013

CanadaBay Development ControlPlan

CanadaBaySection 94Contributions Plan

SocialInfrastructure (OpenSpaceand Recreation)Strategy

Let’sAllPlayStrategy

DogsinPublicPlaces Strategy

Aboriginal andCultural Heritage Studyand Management Plan2006

Community Safetyand Crime Prevention Plan20142018

Disability Inclusion ActionPlan

2017-2021

Local Movement Strategy

Pedestrian Accessand MobilityPlan

Environmental Strategy2014

Biodiversity Frameworkand ActionPlan

UrbanTreeCanopy Strategy

GreenhouseAction Plan

WaterEfficiencyPlan

DraftElectricVehicle ChargingStrategy

3.2 Commonwealth legislation

3.2.1 NativeTitleAct 1993

The Commonwealth Native Title Act 1993 recognises and protectsthetraditional ownership and interest in land and waters that indigenous Australians hold accordingto theirtraditions, laws and customs. Theobjectivesof the NativeTitle Act areto:

 provide for the recognition and protection of native title

 establish ways inwhich future dealings affectingnative title may proceedand to set standards for thosedealings

 establish a mechanism for determining claims to native title

 provide for,or permit, the validation of past acts invalidated becauseof the existence of native title.

The Act describes the process for therecognition ofnative titlerights, including mechanisms for Aboriginal and Torres Strait Islander Peopleto establish the existenceof native title, lodge nativetitle claims, determine and validatethe extinguishment of native title, and dealing with land and waters where nativetitle persists.

All Crown land in NSW can be subject to a nativetitle claim under theNative Title Act. A native title claim does not generally affectCrown land where native title has been extinguished or it is considered excluded land.

The Native Title Act may affect useof Crown land, particularly development and granting of tenure. Under the Crown Land Management Act it is mandatoryforCouncil to nominate or engage a qualified Native Title Manager who provides advice regarding how Council’s dealings and activities on Crown land can be valid or not valid in accordance with the Native Title Act. Councilmust obtain the written advice from a Native Title Manager that Council complies with any applicable provisions of the native title legislation when:

 granting leases, licences, permits, forestry rights or easements over the land

 approving (or submittingfor approval)a planof management for the land that authorises or permits any of thekinds of dealings referredto above.

The NSW Crown Land Management Act 2016 requires that on Crown land (including where managed bya local council) nativetitlerights/interestsmust beaddressed (unless native title has been surrendered, extinguished orlegally determined to nolonger exist). Anydealings in land or water by aCrownland manager that affect(impairor extinguish) native title are classified as “future acts” and must comply withthe Act. Examples of a “future act”, on Crown land, might include the granting of freeholdtitle, or a lease or licence, orthe construction of public works. The Native Title Act sets out procedures to follow before such “future acts” can be validly carried out.

3.3 NSW government legislation and plans

The NSW legislation most affecting useand management of Timbrell Park is the Crown Land Management Act 2016, Aboriginal Land Rights Act 1983, Local Government Act 1993, and the Environmental Planning and Assessment Act 1979

3.3.1 Crown Land Management Act 2016

Most of Timbrell Park isCrown land asshown inFigure 4. Crown land in NSW is governed by the Crown Land Management Act 2016,which providesa frameworkfor the state government, local Councils and members of the community to work together to provide care, control andmanagement ofCrownreserves. Cityof Canada Bay is Crownland manager under the CLM Act, and continues to havemanagementresponsibility for Timbrell Park.

Under Section 1.4of theCLM Act, Crown land isrequired tobe managed according to the objects and principles of Crown land management(referto Section 4of this Plan).

Section 3.21of theCLMAct authorises a local Council that has management responsibility for an area of dedicated or reservedCrownland (a “councilmanager”), as City of Canada Bay does for Timbrell Park, to managethat land in accordance with the public land provisions of the Local Government Act 1993. With some exceptions, Section 3.22(1) of the CLM Act requires that aCouncil manager of dedicated or reserved Crownland “must manage the landas if itwere community land under the Local Government Act 1993” and has “forthat purposeall the functions that a localCouncil has under that Act inrelation to community land (including in relation tothe leasing and licensing of community land)”. Notwithstanding,Crown land must bemanaged inaccordance withthe purpose(s) of the land and cannot beused for anactivity incompatible with its purpose(s).

Section 3.23of theCLMAct requires a Council manager of dedicated or reserved Crown land to:

 categorise theland toone or more categories of community land referredto in Section 36(4) of the Local Government Act 1993. The assigned category(s) must be closely related tothe purpose(s) for which the land is dedicated or reserved. The proposed multiple categorisations of Timbrell Park which correspond with the current reserve purpose of Public Recreation, is in Figure4.

 prepareand adopt a Plan of Management for the dedicated or reserved Crown land in accordancewiththe Plan of Management provisions of Division 2 of Part 2 of Chapter 6 ofthe Local Government Act 1993.

The CLMAct providesthat any existing lease, licence or permit issued under the Crown Lands Act 1989 will continue for its agreed term.However from 1 July 2018 all new leases, licences and permits are issued under the new legislation.

Section 3.15of theCLMAct also allowstheMinistertomake, and publishin the NSW Government Gazette, Crown land management rules “for or withrespect to themanagement of dedicatedor reservedCrown land by Crown land managers”.

The Crown Land Management Regulation 2018 supports the new Crown Land Management Act 2016. CrownLand Managersmust comply with Crown land regulationswhich prescribe principles and rules relating to theuse andmanagement of Crown landinNSW.

Crown land has significant spiritual, social, cultural and economic importance to the Aboriginal people of NSW. The CrownLand ManagementAct recognises and supports Aboriginal rights, interests and involvement in Crown land.

Crown Lands State Strategic Plan – A Vision for Crown Land

This 10-year vision will guide how Crown land inNSW will be used forthe years to come. The draft plan includes a roadmap of priorities, outcomes and enablersthat are all steps in delivering a vision whereCrown lands supports resilient, sustainable and prosperous communities acrossNSW.

The draft plan sets out an approach that will enable the useof Crown land to evolveto meet changing communityneeds.

3.3.2 Aboriginal Land Rights Act 1983

The Aboriginal Land Rights Act 1983 (ALRAct) recognises therights of Aboriginal people in NSW. The Act seeks to compensate Aboriginal peoples (who may ormay not also benative title holders) forpast dispossession, dislocation and removal of land inNSW.

Aboriginal land claims may be placed on any Crown land in NSW. The Department of Planning and Environment is responsible for investigating claims as defined in the ALR Act. If a claim is established, the land istransferred tothe Aboriginal Land Council as freehold land. At the time of preparingthis Plan of Management none of the reservessubject to this Plan of Management are affected by an undetermined Aboriginal land claim.

3.3.3 Local Government Act 1993 Classification

One parcel of Timbrell Park (Lot 1 DP 356799) is owned by Cityof Canada Bay Council and is classified as community land under the Local Government Act 1993. Council owned land which is classified as ‘community’ land must bemanaged and kept for the purposes of the community. Community land must bemanagedaccordingto the Local Government Act 1993 andthe Local Government (General) Regulation 2021

Community land:

 must havea Plan of Managementprepared for it, which sets out guidelines for useand management of the land. Until a Plan of Management is adopted, the nature and use of the land must not change.

 must be kept for the use of the general community, andmust not be sold. Council has no power to sell, exchange or otherwise disposeof community land, except for the purpose of enabling that land tobecome, or be added to, aCrown Reserve or landreserved or dedicated under the National Parks and Wildlife Act 1974

 cannot be leased or licenced for aperiodof morethan 21 years, or for 30years with consent from the Minister.

Categorisation

Community land must be categorised in accordance withthe Local Government Act 1993. A category assigned tocommunity land, usingthe guidelines for categorisation in the Local Government (General) Regulation 2021, reflectsCouncil’s intentions for futuremanagement and use of the land.

The CLMA2016 requires categorisation of Crown land according to the Local Government Act 1993 and consistentwith the public purposeof the Crownreserve.

All of Timbrell Park (excluding theroadreserve) was categorised as Sportsground in the 2007 Generic Plan of Management. Howeverthe category of Sportsground is not appropriate toapplytothe entire park,so itis proposed that Timbrell Parkis categorised as Sportsground, Park, andGeneral Community Useaccording totheguidelines for categorisation in Table 8. Refer toSection 4.3.3 for the categorisation map and core objectives.

Table 8 Guidelines for categories of Crown and community land at Timbrell Park Category Guidelines1

Sportsground

Ifthelandisusedorproposedtobeused primarilyforactiverecreationinvolvingorganised sportsortheplayingofoutdoorgames.

Park Landthatis,orisproposedtobe,improvedby landscaping,gardensortheprovisionofnonsportingequipmentandfacilities,forusemainly forpassiveoractiverecreational,social, educationalandculturalpursuitsthatdonot undulyintrudeonthepeacefulenjoymentofthe landbyothers.

General CommunityUse Landthatmaybemadeavailableforuseforany purposeforwhichcommunitylandmaybeused, whetherbythepublicatlargeorbyspecific sectionsofthepublic.

Local Government (General Regulation) 2021

Use agreements

Application to Timbrell Park

Sportingfieldsandamenities

Playground

Informalgrassedareas

Gardenbeds

Offleashdogexercisearea

Paperbarkgrove

Proposedconstructed wetland

LivingRoom

Livvi’sCafé

The requirements of the Local Government Act 1993 regarding leases, licences and other estates arein Section 6.

3.3.4 Environmental Planning and Assessment Act 1979

The Environmental Planning and Assessment Act 1979 (EPA Act) establishes thestatutory planning framework for environmental and landuse planning in NSW through:

 State Environmental Planning Policies (SEPPs).

 Local Environmental Plans (LEPs). The Canada Bay Local Environmental Plan 2013 applies to Timbrell Park.

The EPA Act requires that “environmental impacts” be considered in landuse planning and decision making.

State Environmental Planning Policy (Transport and Infrastructure)2021

The SEPP(Transport and Infrastructure) 2021 assists local Councils andcommunities by simplifying the process for providing essential infrastructureand enabling greater flexibility in the location, development and maintenance of infrastructureand service facilities. It includes specific planning provisions and development controls fora range of infrastructure works or facilities including parks and other public reserves, roads, emergency services, electricity delivery, andtelecommunications networks.Theclauses relevant to permissible works in Timbrell Park arein Section 6 of this plan.

3.4 City of Canada Bay plans

The local planning framework is governedby Local Strategic Planning Statement, Community Strategic Plan, Delivery Planand Operational Plan, the Canada Bay Local EnvironmentalPlan 2013, and Development Control Plan.