Background

In 2007, Latrobe City Council proposed an extension to the Kay Street Kindergarten located on Hubert Osborne Park. At this time, the Save Osborne Park Community Group was formed to provide representation for residents concerned about saving the park. In 2010 Latrobe City Council considered a proposal to sell part of Hubert Osborne Park to assist in the development and financing of a new indoor Aquatic Centre for Traralgon. Neither of these proposals proceeded after strong opposition from the local community and the Save Osborne Park Community Group.

It also led to Council resolving on 05 December 2011 to not sell any part of Hubert Osborne Park and to request the development of a policy to prevent the sale, lease or change of use of any part of the land into the future.

Purpose

This policy has been prepared and adopted by Council to:

1. protect Hubert Osborne Park as a community asset for public use;
2. demonstrate Council's commitment to retaining Hubert Osborne Park as a community asset for future use by the public.

On 05 December 2011 Council resolved to not sell any part of the land that makes up the Hubert Osborne Park. However, in the event that Council ever seeks to change any of the existing uses of the Hubert Osborne Park, or sell or lease part or all of Hubert Osborne Park this policy will ensure that Council;  

1. include local residents in the decision-making process on whether to sell, lease or change the existing uses of Hubert Osborne Park (or part of it) by way of community consultation;
2. set out additional procedures (further to the existing legislative requirements) with which Council must comply before it can consider selling, leasing or changing the existing use of Hubert Osborne Park; and 
3. inform the community of the steps with which Council would need to comply before determining whether to sell, lease or change the existing uses of Hubert Osborne Park. 

Description of Hubert Osborne Park and application of this Policy

Description of Hubert Osborne Park

Hubert Osborne Park is bounded by Kay, Breed, Seymour and Mabel Streets in the Traralgon central business district.  It is made up of 10 separate lots, of which:

1. 2 lots are owned by the Victorian Government.  They are Crown land reserved for recreational purposes (Crown Allotments).  At the time of making this policy, Council was the committee of management responsible for the Crown lots under the Crown Land (Reserves) Act 1978; and
2. 8 lots are owned by Council. The entire park is reserved under the Latrobe Planning Scheme (the Scheme) for public purposes and recreation (PPRZ).

Current use of Hubert Osborne Park

Hubert Osborne Park is used by the community as passive open space, a recreational park and playground, aquatic facility, croquet club, pre-school, barbeque, picnic area and car-park.

There is also an air monitoring station on the site utilised by the Environment Protection Agency.

Application of this policy

The requirements of this policy apply to any sale or proposed sale, any lease or proposed lease and any change of the existing uses of Hubert Osborne Park (or any part of Hubert Osborne Park) by Council. 

Paragraphs 4 to 8 set out the requirements of this policy with which Council must comply before it determines whether to sell or otherwise transfer ownership of all or part of Hubert Osborne Park, lease any or all of Hubert Osborne Park or change any of the existing uses of Hubert Osborne Park in any way whatsoever including any reduction in the passive open space. For clarity, no land within the boundary of the Traralgon Outdoor Pool is considered passive open space for the purpose of this Policy,

Paragraphs 4 to 8 detail the existing statutory and policy requirements with which Council must comply in addition to this new policy, before Council determines whether to sell or otherwise transfer ownership of all or part of Hubert Osborne Park.

Requirements under this policy

Council must undertake a community survey of local residents

1.  In addition to the processes outlined at paragraphs 4 to 8 below, Council must conduct a community survey to ascertain public opinion on any proposed sale of all or part of Hubert Osborne Park, any proposed lease of all or part of Hubert Osborne Park and any proposed change of use of the existing facilities in any way whatsoever that make up part of Hubert Osborne Park including any reduction in the existing passive open space.
2. The community survey is a two-step process that will survey residents;
   1. Within five hundred metres of Hubert Osborne Park (as shown in appendix two);
   2. Within the Traralgon and Traralgon East districts including all people who reside within the 3844 postcode.
3. The community survey for residents within 500 metres of Hubert Osborne Park must;
   1. Not be conducted at the same time as any public process outlined at paragraphs 6 to 8 below;
   2. Be directed at residents over the age of 18 years;
   3. Survey all residential properties located within 500 metres of Hubert Osborne Park;
   4. Set out the timeframe for residents to respond to the survey;
   5. Be designed to ask residents a “yes” or “no” question about whether Council should:
      1. sell, lease or change the existing use of all or part of Hubert Osborne Park; or
      2. retain ownership, not lease or not change the existing use of Hubert Osborne Park; and
   6. Be retaken in the event that less than 50 percent of residents over the age of 18, to whom the survey was delivered or conducted, respond to the survey. For clarity, any survey that is not returned to Council is not an implied consent to any proposal whatsoever.
4. The community survey for all residents of Traralgon and Traralgon East who have the 3844 postcode must:
   1. be undertaken at the same time as the survey set out in paragraph 3.1.3
   2. be directed at residents over the age of 18 years;
   3. survey all households located within the localities of Traralgon and Traralgon East (as identified by reference to the 3844 postcode). set out the timeframe for residents to respond to the survey; 
   4. be designed to ask residents a “yes or no” question about whether Council should:
      1. sell, lease or change the existing use of all or part of Hubert Osborne Park; or
      2. retain ownership, not lease or not change the existing use of Hubert Osborne Park; and
   5. be retaken in the event that less than 20 percent of residents over the age of 18, to whom the survey was delivered or conducted, respond to the survey. For clarity, any survey that is not returned to Council is not an implied consent to any proposal whatsoever.

Factors which Council MUST consider before deciding to sell Hubert Osborne Park

Before determining whether to sell, lease or change the existing use in any way whatsoever of all or part of Hubert Osborne Park, Council must (in order of precedence):

1. Obtain a positive majority of the results from the community survey from both;
   1. The residents within 500 metres of Hubert Osborne Park; and
   2. The residents in the Traralgon and Traralgon East areas including all residents who have a 3844 postcode;
2. Provide replacement comparable public open space in the form of a park area, in close proximity to Hubert Osborne Park;
3. Consider the purpose for which the potential purchaser or tenant intends to purchase or lease Hubert Osborne Park (or part of Hubert Osborne Park).

Existing protections and processes before any sale can take place

The following part of this policy sets out the existing processes with which Council must comply before it can sell or otherwise transfer ownership of Hubert Osborne Park.

Council cannot sell the Crown Allotments because it does not own them

The Crown Allotments are owned by the Victorian Government, with Council being responsible for their care and management as a committee of management under the Crown Land (Reserves) Act 1978.  Therefore, Council cannot sell the Crown allotments of Hubert Osborne Park because it holds no title to the lots.  It would be for the Victorian Government to determine whether to sell the land.

If the Victorian Government transfers the Crown Allotments to Council (though it has given no indication that it might) then the remainder of this policy applies to those lots in the same way as it applies to the 8 lots of Hubert Osborne Park which are owned by Council.

Limitation in the Subdivision Act 1988

Reservation for public purposes recorded on title

In the event that the Victorian Government transfers the Crown Allotments to Council, the two Crown Allotments would remain reserved for public purposes, and the reservation would remain recorded on title. To sell land that is reserved for public purposes Council would need to:

1. amend the Scheme or obtain a planning permit to alter the use of Hubert Osborne Park; and 
2.  remove the reservation from Hubert Osborne Park, by following the process set out in section 24A of the Subdivision Act 1988.

Amending the Scheme or obtaining a planning permit would involve Council applying to itself (as responsible authority) or the Minister for Planning pursuant to the Planning and Environment Act 1987. 

Both applications would require: -      

• public notice; and -      
• if objections were received in relation to the proposal, public submissions processes, and both applications could ultimately be refused by the decision-maker following these processes.

If, however, Council then successfully obtained a planning permit or amended the Scheme, it would then need to lodge for registration with the Titles Office a certified plan in accordance with section 24A of the Subdivision Act 1988.  Assuming all of the above requirements are met, then the reserve status of the Crown lots could be removed and the lots would vest in Council as ordinary freehold land, to be used for a purpose consistent with any Act under which Council operates and the  Scheme (see section 24A(7)(b) Subdivision Act 1988).

If Council sought to sell the Crown Allotments, it would be required, by sections 20(4) and 24A(7)(a) of the Subdivision Act 1988, to provide replacement public open space in its municipal district (see paragraph 7 below).  Council would also be required to apply the proceeds of the sale of the Crown Allotments (if sold) to pay the expenses incidental to the sale and any remaining proceeds to recreational and cultural purposes.

As this would eventually be a sale of Council-owned land, Council would also need to comply with the requirements of section 189 of the Local Government Act 1989 as set out below.

All of the above assumes that the Victorian Government would want to transfer ownership of the Crown lots, which may well be unlikely.

Replacing any public open space sold

The remaining 8 lots which Council owns are not reserved on title for public purposes.  However, these lots – as well as the Crown Allotments – do constitute 'public open space' under the Subdivision Act 1988 because the entire Hubert Osborne Park is land in a plan reserved under the  Scheme for public recreation and similar purposes.  Therefore, should Council attempt to sell any of the land in Hubert Osborne Park, it will need to provide replacement open space (see section 20(4) Subdivision Act 1988 ).  

Limitations in the Local Government Act 1989

Council owns 8 lots of Hubert Osborne Park.  Section 189 of the Local Government Act 1989 imposes restrictions on Council's power to sell land owned by it.  The provision requires that Council:

1. gives public notice of its intention to sell or exchange the land at least four weeks prior to the sale or exchange;
2. obtains a valuation of the land no older than 6 months from the date of the sale or exchange; and
3. (in most cases) undertakes a submissions process pursuant to section 223 of the Local Government Act 1989.

Members of the community can therefore express any concerns about a proposed sale of Hubert Osborne Park through the submissions process. 

Council will be bound to consider all submissions when deciding whether to sell or exchange the land. Council would not be bound to follow the requirements in section 189 of the Local Government Act 1989  if it decides to transfer, exchange or lease Hubert Osborne Park, without consideration, to the Crown, a Minister, a public body, trustees appointed under an Act or a hospital in certain circumstances (please refer to s.191 Local Government Act 1989).

Scheme limitations

Hubert Osborne Park is reserved for public purposes and recreation, meaning the Scheme permits a range of public uses to take place at the park as of right (such as carnivals, sporting facilities and the like).  Other uses including retail premises generally require a planning permit unless carried out in accordance with legislation.

Council could attempt to sell the freehold lots with the zoning remaining over Hubert Osborne Park.  However, the zone would significantly limit any use to which the potential purchaser might put Hubert Osborne Park, and could be unattractive to a potential purchaser.  Council would still need to follow the process in section 189 of the Local Government Act 1989 as outlined in paragraph 7 above to sell Council-owned land.

Council could only remove the PPRZ (Planning Permit Recreational Zone) from Hubert Osborne Park by application to the Minister for Planning for an amendment to the Scheme.  Council, as owner of the freehold lots, could also apply to itself as planning authority under the Planning and Environment Act 1987, though this option would be less appropriate in the circumstances and the ultimate decision would need to be approved by the Minister for Planning.  The application process would also involve a public process should any submissions opposing the rezoning be received. 

Sale of Council Owned Property Policy

Council also has a Sale of Council Owned Property Policy (the Existing Policy) with which it must comply before selling Council-owned land (that is, the 8 lots of Hubert Osborne Park).  This policy requires Council to:

1. determine whether a property is surplus to Council requirements, by considering the questions outlined at paragraph 4 of the Existing Policy;
2. invite submissions from the community where it determines that the property is surplus to Council requirements;
3. provide community organisations with first opportunity to express an interest in purchasing properties deemed surplus to Council and community requirements;
4. in certain circumstances and once the above requirements have been met, put the property to sale by public auction;
5. in certain circumstances, only accept a purchase price for the land at or above 90% of the valuation obtained pursuant to section 189 of the Local Government Act 1989; and
6. seek quotations or tenders for real estate services when required.

Definitions

Act In the context of this policy, means the Local Government Act 1989

Community Facility Real property accommodating community infrastructure, such as public halls, recreation facilities and the like, which have broad community use and are used for multi-purpose cultural, community and/or recreational purposes.

Council Means Latrobe City Council, being a body corporate constituted as a municipal Council under the Act.

Council Controlled Property Real property in which the Council has a major and controlling interest whether through:

1. A lease or licence;
2. As committee of management under the Crown Land (Reserves) Act 1978;
3. Some other grant, demise, gift, benefit or bequest; or
4. Specific legislation or law enacted by the Parliament.

Council officer Means the Chief Executive Officer and staff of Council appointed by the Chief Executive Officer.

Council Owned Property Real property to which the Council has title whether:

1. In fee simple estate;
2. By possession;
3. A restrictive Crown grant;
4. A restrictive, in fee simple Crown grant; or
5. An in fee simple Crown grant.

Councillor(s) Means the individuals holding the office of a member of Latrobe City Council

This policy has been reviewed after giving proper consideration to all the rights contained within the Charter of Human Rights and Responsibilities Act 2006; and any reasonable limitation to human rights can be demonstrably justified.