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Inside track: Local Government

11 August 2020

#Local Government

Published by:

Victoria Gordon

Inside track: Local Government

Local councils and unsolicited proposals – tapping into private sector innovations

Unsolicited proposals allow governments to explore unique and innovative ideas from industry that can capture value and provide real and tangible benefits to communities.

Historically, unsolicited proposals have been reserved for Commonwealth and state governments.

In this article, we explore unsolicited proposals in the NSW local government context and discuss how local councils can implement effective unsolicited proposal policies to deliver innovative and dynamic projects to their local government areas (LGAs).

Are unsolicited proposals permitted under the local government legislative framework?

For a council to participate in unsolicited proposals within the NSW local government context, it must put in place an unsolicited proposal policy that is consistent with:

  • the requirements of the Local Government Act (1993) (NSW) (Act) and Local Government (General) Regulation 2005 (NSW) (Regulation) (together, Legislative Framework)
  • the NSW Government Unsolicited Proposals: Guide for Submission and Assessment, dated August 2017 (Unsolicited Proposals Guide).

There are no express provisions under the Legislative Framework or any express policy from the Office of Local Government (OLG) setting out the requirements for unsolicited proposals within the local government context.

However, the OLG Circular No 18-12 dated April 2018 on the management of unsolicited proposals received by councils (Circular) states that councils seeking to adopt their own unsolicited proposal guidelines should consider utilising the Unsolicited Proposals Guide as a model framework.

The Circular further states that in developing guidelines and considering unsolicited proposals, Councils must also comply with the relevant provisions of the Legislative Framework in relation to tendering and Public Private Partnerships (PPPs) and associated guidelines, and any guidelines issued by the Chief Executive of the OLG. As at the date of this article, there are no publicly available guidelines from the OLG in relation to unsolicited proposals.

Finally, the Circular states that any unsolicited proposals considered by councils must also align with the objectives articulated in their delivery programs and other associated integrated planning and reporting documents.

Accordingly, for a council to consider unsolicited proposals within the NSW local government context, it must first develop and adopt an unsolicited proposal policy that allows an unsolicited proposal to be considered only where:

  • it would otherwise not be a form of contract that would require a tender under s 55 of the Act
  • it is not a PPP under Chapter 12 Part 6 of the Act.

How should a council implement an unsolicited proposal policy?

In accordance with the Circular, councils looking to implement unsolicited proposals into their procurement practice should use the Unsolicited Proposals Guide as a model framework for the development of their unsolicited proposals policy.

The Unsolicited Proposals Guide defines an unsolicited proposal as “an approach to Government from a proponent with a proposal to deal directly with the Government over a commercial proposition, where the Government has not requested the proposal”. This may include proposals to build and/or finance infrastructure, provide goods or services, or undertake a major commercial transaction.

The assessment criteria in s 2.3 of the Unsolicited Proposals Guide provide that unsolicited proposals will be assessed by the NSW Government against the following criteria:

  • uniqueness
  • value for money
  • whole of government impact
  • return on investment
  • capability and capacity
  • affordability
  • risk allocation.

Accordingly, any council seeking to develop an unsolicited proposal policy must adopt these same assessment criteria.

The key requirement of an unsolicited proposal is uniqueness, which may include genuinely innovative ideas, including financial arrangements or solutions that are otherwise unlikely to be defined and put to market (e.g. alternatives to providing a government service or substantive processes, products or methods for delivering a service that is offered by other service providers, and constitute a significant departure from traditional service delivery).

As unsolicited proposals are a subcategory of direct negotiations, the Independent Commission Against Corruption Direct Negotiations: Guidelines for Managing Risks in Direct Negotiations dated August 2018 should also be adopted when considering the suitability of direct negotiations with a proponent following an unsolicited proposal.  

Why should a council implement an unsolicited proposal policy?

Having robust unsolicited proposal policies in place will encourage private sector participants to approach councils with innovative commercial proposals and allow councils to consider whether that proposal is uniquely placed to provide a value-for-money solution for a council, without having to undergo a traditional tender process.

An unsolicited proposal policy also allows councils to protect the intellectual property of the proponent that may otherwise have been compromised if that proponent presented the unique idea to a council but the council was forced to undertake a competitive tender for the solution.   

This would be the case where a council was unable to rely on one of the limited exceptions under s 55(3) of the Act for the requirement to conduct a tender, or where the proposal could not be characterised as a PPP under Chapter 12 Part 6 of the Act.

Has it been done in the past?

Some NSW local councils have developed and published unsolicited proposal policies for public consultation, including:

  • Central Coast Council (2019 - draft form for public consultation)
  • Wollongong Shire Council (2018 - draft form for public consultation).

As at the date of this article, we are not aware of any local councils in NSW that have formally adopted an unsolicited proposal policy.

There is also evidence of local councils in other states formally adopting unsolicited proposal policies, including the City of Marion (SA) (2018 - adopted under s 49 of the Local Government Act 1999 (SA)).

Conclusion

Forward thinking councils wanting to take advantage of innovative ideas for their communities should be looking to develop an unsolicited proposal policy.

Any such policy must comply with the Legislative Framework and Unsolicited Proposals Guide, and should be issued for public consultation in the first instance.

Authors: Scott Alden & Victoria Gordon

In the media

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More of Melbourne’s exceptional trees to be protected
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Caustic soda discharge costs Lithgow City Council $543,000 after EPA action
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In practice and courts

PC Audit of national water resources reforms
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Victoria

Minister’s Good Practice Guideline MGPG-1: Virtual Meetings
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Final reminder for all Councils to submit data on native vegetation removal across Victoria to DELWP
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Melbourne Airport Environs Safeguarding Standing Advisory Committee
The Melbourne Airport Environs Safeguarding Standing Advisory Committee is currently seeking submissions to advise the Minister for Planning on improvements to the planning provisions safeguarding Melbourne Airport and its environs. Submissions are also welcome on improvements to planning provisions that may help safeguard other airport environs in Victoria. To learn more about the Committee and to make a submission, visit Engage Victoria. Submissions close 18 September 2020.

Metropolitan Melbourne and Mitchell Shire - activities and access to public land
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City of Melbourne Public notice: Notice of proposed lease of the premises known as Kensington Community High School
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Suburban Parks Program: funding grants from 01 June 2020
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2020 Clean-Up Program 
Victorian Bushfires Case Support Program 
Australian Government Disaster Recovery Payment 

Significant Sporting Events Program
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Reminder to submit data on Native Vegetation Removal across Victoria and release of the AR 2018-2019
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NSW

Consultation: 50-Year Vision for Sydney's Open Space and Parklands
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eplanning Platform reminder
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NSW Revenue Reminder: COVID-19 (coronavirus) and parking space levy
As part of the NSW COVID-19 stage two economic package, the NSW Government has deferred parking space levy (PSL) payments from the end of March for six months until 30 September 2020, to provide cash flow relief to businesses.  More...

NSW Planning Department: Have your say - Draft plans and policies

Proposed new Housing Diversity SEPP Explanation of Intended Effect
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Greener Places Design Guide
Notification start-end date 25/06/2020 - 07/08/2020. The Draft Greener Places Design Guide has been released for consultation. The draft guide provides information on how to design, plan and implement green infrastructure in urban areas throughout NSW.  More...

Cases

Victoria

Planning & Design Pty Ltd v Moreland CC [2020] VCAT 816
Three attached double storey dwellings; Streetscape presentation; Crossovers; Landscaping; Energy efficiency and internal amenity. No permit. 

Malcolm Mount Waverley Pty Ltd v Monash CC [2020] VCAT 684
Monash Planning Scheme; Application under section 77 of the Planning and Environment Act 1987; GRZ2; Proposal for six 2-storey dwellings; Neighbourhood character; On-site amenity. No permit. 

Banriar Investments Pty Ltd v Cardinia SC [2020] VCAT 800
Cardinia Planning Scheme; Urban Growth Zone, Schedule 3; General Residential Zone; Application for subdivision; Removal of restrictive covenants; Material detriment. 

Donald v Knox CC [2020] VCAT 747
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.  

Paritsi v Banyule CC [2020] VCAT 801
Section 77 of the Planning and Environment Act 1987; Banyule Planning Scheme; General Residential Zone (Schedule 2); neighbourhood character; side by side building form; sloping site; building bulk; availability of land for landscaping; landscape response; separate driveways; residential amenity. 

Azzopardi v Macedon Ranges SC [2020] VCAT 790
Section 77 of the Planning and Environment Act 1987; Macedon Ranges Planning Scheme; Farming Zone; Environmental Significance Overlay - Schedule 4; Lot less than 40 hectares; Dwelling and outbuilding.

Breaz v Wyndham CC [2020] VCAT 784
Section 82 Planning and Environment Act 1987, Section 126 Victorian Civil and Administrative Tribunal Act 1998, consideration to extend the time to lodge review application, procedural fairness, natural justice, neighbourhood character, overlooking, overshadowing, building over easement.

Hogan v Whittlesea CC [2020] VCAT 768
To construct five dwellings and waive the visitor car parking requirement. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Kitchen v Melbourne CC [2020] VCAT 777
Section 87A of the Planning and Environment Act 1987; Melbourne Planning Scheme; Extension to existing dwelling; Roof top terrace; Impacts on amenity of adjoining properties

Damian Orlando Design Pty Ltd v Stonnington CC [2020] VCAT 791
Construction of a dwelling on a lot less than 500 square metres in a Neighbourhood Residential Zone and Neighbourhood Character Overlay. Application under section 80 of the Planning and Environment Act 1987 – to review three conditions 1(a), 1(b), and 4(b)(i) contained in the permit.

Philips Auto Electrical Supplies PL v Brimbank CC [2020] VCAT 798
S82 review of decision to Grant a permit to amend the use and a reduction in the carking required.

WCL Development v Greater Dandenong CC [2020] VCAT 795
Greater Dandenong Planning Scheme; land within the incremental change area and the General Residential Zone Schedule 3 in the Greater Dandenong Planning Scheme; three storey development in Noble Park.

Rawani v Greater Dandenong CC [2020] VCAT 781
Section 77 of the Planning and Environment Act 1987; General Residential Zone; Proposed development of four dwellings; Neighbourhood character; Internal amenity. No permit

Mildura RCC v Lando [2020] VCAT 793
‘Workers accommodation’ for up to 10 workers involved with the use of the land for horticulture (viticulture/table grapes). Application for declaration under section 149B of the Planning and Environment Act 1987 – whether the ‘workers accommodation’ is a separate and distinct use of the land (i.e. not ancillary) and prohibited in the Farming zone. 

Menheere v Casey CC [2020] VCAT 787
Section 82 of the Planning and Environment Act 1987, Case planning scheme, Place of worship, Green Wedge A zone, Amenity, Car parking. No permit

Monaghan v Moyne SC [2020] VCAT 783
Section 82 Planning and Environment Act 1987, Moyne Planning Scheme, Design and Development Overlay – Schedule 1, Façade height, Building height, neighbourhood character, overlooking, car parking and access.

Nepean Seaford Pty Ltd v Frankston CC [2020] VCAT 774
Section 79 of the Planning and Environment Act 1987; Frankston Planning Scheme; General Residential Zone; Design and Development Overlay DDO6; 10 Dwellings; Three Storey Building; Response to Previous Tribunal Decision; Neighbourhood Character; Overshadowing; Overlooking; Building Mass and Bulk; Traffic; Parking.

Walsh v Greater Geelong CC [2020] VCAT 772
Section 82 of the Planning and Environment Act 1987; Greater Geelong Planning Scheme; Low Density Residential Zone LDRZ1; Child Care Centre; 92 Places; Leopold Structure Plan.

Surf Coast SC v Ford [2020] VCAT 775
The application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 is allowed. Jennifer Lee Ford and Mark Currie are ordered to pay the costs of Surf Coast Shire Council fixed in the sum of $4,276. The council alleges the land at 40 Randles Road, Connewarre is being used to store vehicles without a planning permit in breach of clause 32.03-1 of the Surf Coast Planning Scheme.

Trajkovski v Maribyrnong CC [2020] VCAT 773
Construction of two double storey dwellings. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. No permit

Chen v Manningham CC [2020] VCAT 779
Manningham Planning Scheme; General Residential Zone Schedule 2; Design and Development Overlay, Schedule 8; Visual bulk; First floor form; Landscaping; Bin storage.

Six Seater Pty Ltd v Whittlesea CC [2020] VCAT 776
Section 149(1)(a) Planning and Environment Act 1987; specified person; jurisdiction of Tribunal to review decision not to return tree protection bond provided under permit condition. Dismissed

Hume Childcare Pty Ltd v Maroondah CC [2020] VCAT 767
Maroondah Planning Scheme, Section 77 Planning and Environment Act 1987, Neighbourhood Residential Zone – Schedule 3, Significant Landscape Overlay – Schedule 3, Land adjacent to Road Zone Category 1, neighbourhood character, access, traffic, car parking, visual bulk, tree protection, overlooking, light spill.

Antech Property Group Pty Ltd v Moreland CC [2020] VCAT 759
Section 77 Planning and Environment Act 1987; Moreland Planning Scheme; Industrial 1 Zone; Environmental Significance Overlay Schedule 1; Warehouses; Visual Impact to Merri Creek Environs; Carparking over carriageway easement; Car parking reduction. No permit

Mitchell v Moorabool SC [2020] VCAT 752
Section 80 of the Planning and Environment Act 1987 review against permit conditions; Moorabool Planning Scheme, Farming Zone; proposed place of assembly (host farm, short stay accommodation, farm experience, and tourist activities), contested conditions requiring upgrading of roads.

Wright v Moonee Valley CC [2020] VCAT 766
Section 77 Planning and Environment Act 1987; Moonee Valley Planning Scheme; Two Side by Side Dwellings; Two Crossovers; Streetscape; Removal of Street Tree; Neighbourhood Character; Garden Court 3.

Knox v Boroondara CC [2020] VCAT 764
Boroondara Planning Scheme; medium density housing and respect for the preferred future character; visual bulk assessment of medium density housing on surrounding residential properties.

Lynn v Hepburn SC [2020] VCAT 741
Relevant dates The following dates are the dates referred to in these orders. As I have not found there to have been significant ground disturbance across the parts of the site which are otherwise within an area of cultural heritage sensitivity, I conclude that the proposed activity is a high impact activity which is proposed to occur within an area of cultural heritage sensitivity. As such, a CHMP is required to be prepared under the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2018 for the proposed activity.

NSW

Harrison v Woollahra Municipal Council [2020] NSWLEC 1341
MODIFICATION APPLICATION – proposed deletion of condition of consent – whether application is compliant with control C4 of clause 1.4.5 of Woollahra DCP – whether application achieves the objects of control C4 of clause 1.4.5 of Woollahra DCP

Webb v Port Stephens Council [2020] NSWCATAP 152
APPEAL – whether decision dismissing an application for contempt is an internally appealable decision under the Civil and Administrative Tribunal Act 2013 (NSW) APPEAL – statutory interpretation – meaning of s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) – whether Tribunal has jurisdiction to entertain a new application for administrative review of the failure to make a decision following remittal under s 63(3)(d) – whether Tribunal has jurisdiction to entertain a new application for administrative review of a decision following remittal under s 63(3)(d) APPEAL – apprehended bias – where Tribunal member advised respondent to institute proceedings against applicant – whether assurances as to impartiality overcame perception of bias

Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009

Denoci Pty Ltd v Liverpool City Council [2020] NSWLEC 102
APPEAL - appeal against Commissioner’s decision on questions of law – whether misconstruction of the proposed development and land on which it was to be carried out– whether the species impact statement failed to comply with Chief Executive’s requirements – whether misconstruction and misapplication of cl 7.6 of Liverpool Local Environmental Plan (LLEP) – whether misconstruction of term ‘environmentally sensitive area’ in cl 7.31 LLEP – whether failure to give reasons – whether denial of procedural fairness – whether misconstruction and misapplication of fifth control in Liverpool Development Control Plan – whether misapplication of statutory test in s 4.15(3A) of the Environmental Planning and Assessment Act 1979 – whether failure to consider proposed offsets through purchase of biodiversity credits from registered biobank sites – no errors of law

Ryan v Northern Regional Planning Panel (No 5) [2020] NSWLEC 101
COSTS – exercise of discretion to award costs where Applicant partially successful in judicial review and civil enforcement proceedings on one of three grounds – three interlocutory injunction applications unsuccessful – numerous amendments of summons resulting in removal of several grounds before the hearing

Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332
DEVELOPMENT APPLICATION – proposed residential flat building – applicant has the benefit of existing use rights – applicant proposes a breach of height of buildings development standard – whether height of buildings development standard derogates from incorporated provisions – whether applicant requires a written request under cl 4.6 of North Sydney Local Environmental Plan to vary development standard – whether the applicant’s written request under cl 4.6 of North Sydney Local Environmental Plan is well founded – whether potential impacts of the proposed residential flat building are acceptable – whether the proposed residential flat building complies with the provisions of North Sydney Development Control Plan

Nakhoul v Canterbury-Bankstown Council [2020] NSWLEC 1320
DEVELOPMENT APPLICATION – dual occupancy – contravention of lot width standard – corner block – internal amenity – precedent 

DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 1319
DEVELOPMENT APPLICATION – child care centre – acoustic mitigation – character and streetscape

Cowan Development 40 Pty Limited v Ku-ring-gai Council [2020] NSWLEC 1315
DEVELOPMENT APPLICATION – seniors housing – neighbour concerns

Dukic v Mid Coast Council [2020] NSWLEC 1314
DEVELOPMENT APPLICATION – multi-dwelling housing development – consistency with character and streetscape – tree retention

Urban Link Pty Ltd v Inner West Council [2020] NSWLEC 1312
DEVELOPMENT APPLICATION – boarding house – access – narrow entrance – amenity impacts –heritage conservation

Guo v Parramatta City Council [2020] NSWLEC 1311
DEVELOPMENT APPLICATION – Centre-based child care in R2 Low Density Residential zone – East Epping Heritage Conservation Area – flood planning – consideration of public submissions

Pritchard v Northern Beaches Council [2020] NSWLEC 1310
APPEAL – development application – alterations and additions to a dwelling house approved by a complying development certificate – whether a development application can be made with respect to a dwelling approved by a complying development certificate – breach of floor space ratio development standard – clause 4.6 of the local environmental plan – whether written request adequate

Legislation

Victoria

No 74 Water (Notice of Disposition of Land) Regulations 2020
No 75 Water (Register of Interests) Regulations 2020

Victorian legislation can be accessed here

NSW

Environmental Planning Instruments
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment (Metropolitan Rural Areas Exemption) 2020 (2020-441) — published LW 29 July 2020
State Environmental Planning Policy Amendment (Byron Filming) 2020 (2020-432) — published LW 29 July 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Victoria Gordon

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