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Inside track: Local Government

02 June 2020

#Local Government

Published by:

Victoria Gordon

Inside track: Local Government

New COVID-19 regulation for Local Government – including changes to tender publication provisions

On 17 April 2020, the Local Government (General) Amendment (COVID-19) Regulation 2020 (NSW) (Regulation) introduced temporary modifications to the Local Government Act 1993 as a result of the COVID-19 pandemic.

Objects of Regulation

The objects of the Regulation are:

  • to introduce the following temporary modifications to provisions of the Local Government Act 1993 (NSW) in response to the public health emergency caused by the COVID-19 pandemic:
    • pushing back dates on which certain things must be done by Councils (including the adoption of annual operational plans, preparation and auditing of financial records and the preparation of annual reports)
    • providing additional time for the payment of an instalment of annual rates and charges
    • permitting Councils to waive payment of, or reduce, a fee in a category of cases without first giving public notice of that category if the category relates to a response to the COVID-19 pandemic
    • removing the need for Councils to make certain documents available for inspection by members of the public in the offices of the Councils and to instead make these documents available by other means.
  • to remove requirements on Councils to publish certain notices and advertisements in newspapers and to instead require publication on Council websites and in other ways that a particular Council (or in the case of a notice relating to a constitutional referendum or Council poll, the relevant election manager) considers necessary to bring the notice or advertisement to the attention of appropriate persons
  • to provide that a water supply restriction may be imposed by a Council by notice published on the website of the Council rather than in a newspaper.

Tendering provisions

The key provisions of the Regulation in relation to tendering are:

  • Reg 167 of the Local Government (General) Regulation 2005 (NSW) in relation to open tendering – a Council must now publish an open tendering advertisement on its website and in any other manner that Council considers necessary (rather than the previous requirement of publishing the advertisement in a newspaper)
  • Reg 168 of the Local Government (General) Regulation 2005 (NSW) in relation to selective tendering following a public expressions of interest process – as above, a Council must also publish an open tendering advertisement on its website and in any other manner that Council considers necessary (rather than the previous requirement of publishing the advertisement in a newspaper).

Payments of rates and waiving of fees

The Regulation also contains provisions that allow a Council to delay payment of rates and waive certain fees, including:

  • payments of rates and annual charges under section 562 of the Local Government Act 1993 (NSW) – an instalment (whether a single instalment or a quarterly instalment) of annual rates and charges that would have been payable by 31 August 2020 is instead payable by 30 September 2020
  • waiving or reducing fees under section 610E of the Local Government Act 1993 (NSW) – a Council may waive payment of, or reduce, a fee in a particular case if the Council is satisfied that the case falls within a category of hardship or any other category in respect of which the Council has determined payment should be so waived or reduced. The Council may do so without giving public notice of the proposed category if the category relates to a response to the COVID-19 pandemic.

Councils should ensure they are across the temporary modifications to the Local Government Act due to COVID-19 to ensure continued compliance with their obligations under the Act.

Authors: Scott Alden & Victoria Gordon

In the media

Councils applaud stimulus package for local government
The Australian Local Government Association (ALGA) has welcomed the Federal Government’s $500 million economic stimulus fund for councils as an important boost for urban and regional economies battered by Covid-19 restrictions and the Black Summer bushfires (22 May 2020).  More...

Councils rejoice over $1.8 billion cash splash
Australia's councils will share half a billion dollars of federal roads and infrastructure funding. All up, 12 Queensland councils will get more than $2 million of funding each, as will 13 Victorian councils and seven in NSW (22 May 2020).  More...

Land use planners get new guidance on building resilience
Nationally agreed principles for good practice in land use planning to build disaster-resilient communities have been laid out in a new handbook for local government planners. The total economic cost of disasters associated with natural hazards over the past 10 years to 2018 averaged $18.2 billion annually (22 May 2020).  More...

Council views sought on revising driverless car trials guide
The National Transport Commission is updating its Guidelines for trials of automated vehicles in Australia, developed with Austroads and first published in 2017 (22 May 2020).  More...

Federal Govt says cities and regional growth ‘under control’
The Federal Government has conceded that a national vision for our cities and regions is important, but says it has no plans to develop a national plan of settlement (22 May 2020).  More...

ATHA looks to boost tiny houses in local government areas
A guide to support approvals of tiny houses in local government areas has been published by the Australian Tiny House Association (22 May 2020).  More...

Councils slammed by coronavirus
Council budgets are starting to show the financial toll COVID-19 is taking on local government (21 May 2020).  More...

Funding for Heavy Vehicle Safety and Productivity Program nears closure
Local councils and state and territory governments have been encouraged by the Federal Government to apply for funding available under Round 7 of the Heavy Vehicle Safety and Productivity Program (HVSPP) (14 May 2020).  More...

Victoria

New Parks To Green Our Growing Suburbs
The 24 new parks announced are being delivered through the first round of the local parks component of the $154 million Suburban Parks Program and will build 15 new pocket parks and nine off leash dog parks across Melbourne (24 May 2020).  More...

Working With Regional Communities To Shape The Future
The Andrews Labor Government will use a series of roundtables hosted by the state’s Regional Partnerships to help understand the local impacts of the coronavirus pandemic and pave the way for recovery. The roundtables will be hosted by each Regional Partnership, with representation from RDA committees, local government, and industry who will provide vital insights to their community’s needs (21 May 2020).  More...

Victorian govt urged to support councils on FOGO collections
Victorian councils should get state government support to increase food organics and garden organics (FOGO) kerbside collection services, a new report has recommended (22 May 2020).  More...

Ballarat Council boss sacked, senior director quits after ombudsman probe
Ballarat City Council sacks its chief executive after she was found to have recruited and promoted friends and former colleagues to top positions in the organisation (19 May 2020).  More...

Rebuilding Melbourne’s economy with stimulus and rates relief
The City of Melbourne will invest $50 million in economic stimulus and implement a freeze on rate increases this year as Council takes action to protect jobs and businesses and responds to the COVID-19 pandemic (19 May 2020).  More...

Election announcement disappointing
The Victorian Government’s decision to go ahead with the general council elections this year is disappointing, says the MAV. Cr Coral Ross, President of the MAV, said in our view a 12-month deferral would have also allowed for fairer elections and enabled the State and Councils to implement important reforms provided for by the Local Government Act 2020 (15 May 2020).  More...

October Local Council Elections in the Mail
The Andrews Labor Government is ensuring Victorian communities can have their say on their local government representatives with council elections to go ahead on Saturday, 24 October 2020 (15 May 2020).  More...

Tainted reputations': Ballarat's top council officers under fire for hiring mates
The Victorian Ombudsman releases a damning report detailing a "heady whiff of favouritism" after whistle-blowers raise the alarm over senior council officers (14 May 2020).  More...

Administrators Appointed To Casey Council
The Victorian Government has appointed a panel of long-term administrators to restore good governance and accountability to Casey City Council. Minister for Local Government Adem Somyurek announced the appointments to address serious governance failures at the council (14 May 2020).  More...

Senior council officers in ‘jobs for mates’ probe
The Victorian Ombudsman has issued a warning about the dangers of nepotism in local government. The state ombudsman has found improper conduct by a senior officer and possibly improper conduct by a CEO in its investigation of “jobs for mates” allegations at a Victorian Council (14 May 2020).  More...

NSW

Sydney attractive to advanced manufacturing as other sectors slump
The city has lost momentum in some sectors due to the coronavirus crisis, but is making up ground in others, the Greater Sydney Commission says (20 May 2020).  More...

Councils wary of Planning Minister intervention
NSW councils will work with the State Government to help fast-track community infrastructure projects, but will seek new powers to provide balance before allowing Ministers to interfere by choosing which projects proceed (17 May 2020).  More...

Indigenous elder wins 'David and Goliath' battle to stop Lismore development
A major residential development underway on the New South Wales north coast is now in jeopardy after successful court action by a local Indigenous elder (15 May 2020).  More...

Queensland

Council finally has details of plan to relocate West Gate Tunnel soil
Moorabool Shire Council receives information about the potential affects of contaminated soil from the West Gate Tunnel being relocated to Bacchus Marsh (22 May 2020).  More...

Miners partner with government to send royalties to Queensland regions
The Queensland Government and a group of mining companies have partnered to provide $100 million over three years for regional projects like skate parks, bike paths and pools (20 May 2020).  More...

Infrastructure bonanza to create hundreds of new jobs in regional Queensland
Tens of millions worth of infrastructure investment will fuel the economic recovery of regional and remote Queensland, with 48 new council projects backed by the Palaszczuk Government’s $365 million Building our Regions (BoR) program (20 May 2020).  More...

Council forks out $80,000 for laptops to livestream meetings
Brisbane City Council said the laptops, given to councillors for livestreaming meetings, would be later absorbed into the council's hardware rotation (19 May 2020).  More...

Jobs supported through $200M council program
Creating local jobs is the focus of a $200 million boost of the Palaszczuk Government’s signature and successful Works for Queensland job-creation program (19 March 2020).  More...

Changes in the sky as new flight paths go live
From 21 May 2020 Brisbane residents may notice some changes overhead with new flight paths coming into effect in preparation for the opening of the city’s new runway at Brisbane Airport. The airspace changes are installed in line with one of two annual international publication dates for major airspace changes. (18 May 2020).  More...

Queensland councils provide Premier Annastacia Palaszczuk with shovel-ready projects to power the state's economic recovery
Premier Annastacia Palaszczuk and her senior ministers have received a roadmap of economic recovery projects spanning the state as Queensland councils outline their local COVID-19 recovery battleplans on behalf of its 77 member councils (16 May 2020).  More...

QLD councils welcome new Commonwealth funding
LGAQ President Mark Jamieson thanked the Commonwealth Government for providing a further contribution to local communities to assist with their economic recovery, but states the Inquiry into the conduct of the 2020 local government elections must be broadened (15 May 2020).  More...

PCA: Townhouse ban now in effect
Amendments passed in February 2020 to restrict townhouses from single home areas (Major amendment package H) are effective as of 1 May 2020. The amendments are now part of the Brisbane City Plan 2014 (City Plan) (13 May 2020).  More...

Council parking meters to be switched back on to support Brisbane businesses
Brisbane City Council wishes to advise all on-street parking meters will return to normal operation from 18 May, after more than one month of free and reduced-cost parking to assist essential workers during coronavirus crisis (12 May 2020).  More...

COVID-19 delays infrastructure projects across Brisbane
The coronavirus pandemic has been blamed for delays in environmental restoration and rehabilitation works (12 May 2020).  More...

Reprieve for South Brisbane fig trees as council explores relocation
Council is investigating whether the trees at the end of the William Jolly Bridge in South Brisbane can be dug up and relocated instead of being cut down (12 May 2020).  More...

In practice and courts

Australian Institute for Disaster Resilience (AIDR) Handbook 2020
This handbook is intended to guide and assist stakeholders (including developers and the public) to build capability in and understanding of land use planning’s role in natural hazard risk management.  More...

Local Roads and Community Infrastructure Program

The Australian Government new $500 million Local Roads and Community Infrastructure Program (LRCI Program) will support local councils to deliver priority local road and community infrastructure projects across Australia, supporting jobs and the resilience of local economies to help communities bounce back from the COVID-19 pandemic (22 May 2020).  More...

National Transport Commission: Draft Guidelines for trials of automated vehicles in Australia
To ensure the changes benefit trialling organisations and road transport agencies, the NTC has published a discussion paper and is seeking submissions from local councils, road managers and others regarding the proposals outlined therein (12 May 2020).  More... 

Roads and bridges grants open - Councils encouraged to apply
Applications are open for the latest rounds of the Australian Government's Bridges Renewal Program Round 5 and the Heavy Vehicle Safety and Productivity Program Round 7. A combined $300 million is available to councils for the upgrade or replacement of damaged or deteriorated bridges and heavy vehicle infrastructure improvements. Applications for both programs will close 29 May 2020.

Administration of financial disclosure requirements under the Commonwealth Electoral Act
The objective of this audit is to examine the effectiveness of the Australian Electoral Commission’s (AEC's) management of financial disclosures required under Part XX of the Commonwealth Electoral Act 1918, including the extent to which the AEC is achieving accurate and complete financial disclosures. Due to table: June, 2020 Open for contribution.  More...

Commonwealth Department of Communications and the Arts: Telecommunications in new developments review
In light of recent and upcoming changes in the provision of telecommunications in new developments, the Department is undertaking a review of the Telecommunications in New Developments (TIND) Policy, and has released a discussion paper Review of the 2015 TIND Policy, The Department is aiming to complete the review of the 2015 TIND Policy and make any necessary changes before 1 July 2020. 

Victoria

Suburban Parks Program
Funding for the next round of the program will be open to eligible local government area from 1 June, with grants of up to $1.3 million made available for a new pocket park and $275,000 for a new dog park (24 May 2020).  More...

Extension to closing date - Living Heritage Grants Program – Round 5 Applications now open
With the ongoing situation surrounding COVID-19, Heritage Victoria understands that it may have been difficult to finalise applications for Round 5 of the Living Heritage Grants Program before 9 April 2020. To assist with this, the application closing date has been extended to 12 June 2020.  More...

Bushfire recovery grants and funding
A range of funding streams have been announced to support bushfire-affected businesses, farmers and organisations as well as individuals and families including: 
2020 Clean-Up Program 
Victorian Bushfires Case Support Program 
Australian Government Disaster Recovery Payment 

IBAC: Operation Sandon public hearings will continue in 2020
IBAC's public hearings into allegations of serious corrupt conduct concerning the transparency and integrity of planning and property development decision making, including donations to candidates in local and state government elections, will continue in early 2020.  More...

Significant Sporting Events Program
Councils may apply for grants in this funding program to support the assistance, management or strategic planning of sports events. Applications are open until 30 June 2022 in various rounds. 

s.186 exemption for council recycling contracts
The Victorian Local Government Minister has announced a state-wide s.186 exemption for local councils to extend their recycling collection contracts to 30 June 2021. Attached is a copy of the letter sent to all councils co-signed by Minister Somyurek and the Minister for Energy, Environment and Climate Change, the Hon. Lily D’Ambrosio MP.

Building big to create jobs and drive our state’s recovery
The Victorian Government has announced $2.7 billion to build the projects that matter to Victoria – and create the jobs that matter to Victorians. The Department of Jobs, Precincts and Regions will help deliver the stimulus package, which is supporting: regional and rural areas; community sport; suburban revitalisation (18 May 2020).

Integrating Environment Protection Reforms in Response to the new Environment Protection Act 2017
Consultation on draft changes to the Victoria Planning Provisions and Ministerial Direction No 1 begins on 3 April 2020. In light of the disruptions due to the ongoing COVID-19 situation, and the delay in commencement of the new environment protection framework arising from the Omnibus (Emergency Measures) Act 2020.
EXTENSION TO CLOSING DATE - You are invited to view draft documents and make a submission by 2 June 2020 on Engage Victoria. The documents include an amended State policy for contaminated land, Environmental Audit Overlay and Ministerial Direction Potentially Contaminated Land.

Approvals
Banyule C155bany applies the Specific Controls Overlay (SCO) to properties listed under the Schedule to Clause 51.01 (Specific Sites and Exclusions) and makes related consequential changes, as part of the Smart Planning Program to improve the transparency of site specific controls. The changes improve the clarity and format of the planning scheme by implementing the reforms introduced by VC148.
Colac Otway C104cola applies the Specific Controls Overlay (SCO) to 265-281 Murray Street, Colac and inserts an incorporated document titled 'Whiskey Distillery Colac, 265-281 Murray Street, Colac, November 2019' to facilitate the use and development of land for the purpose of a Whiskey Distillery.
Darebin C187dare deletes an existing incorporated document specified in the Schedule to 'Specific Sites and Exclusions' (Clause 51.01) and the Schedule to 'Documents incorporated in this planning scheme' (Clause 72.04).
Frankston C131fran amends the application of Clause 43.04 Development Plan Overlay, by deleting redundant schedules 2, 3, 4 and 6 and revising the application of schedules 1, 5 and 7 on various sites.
Morland C164pt1moreAmore implements the land use directions of the Moreland Industrial Land Strategy 2015-2030 (MILS) for the Brunswick Activity Centre for MILS Category 3 areas.
Moreland C164pt2moreAmore rezones land at 215, 217, 219 Albion Street, Brunswick and 219, 221 Nicholson Street, Brunswick East from Industrial 1 Zone and Industrial 3 Zone respectively to Commercial 1 Zone.

Lapsings
Stonnington C193ston proposed to amend the Public Acquisition Overlay to 118 Union Street Windsor.

Exhibitions
Mitchell C151mith proposes to rezone land identified in the Kilmore Structure Plan 2016 at Clause 21.11-3 of the Mitchell Planning Scheme as within the South-East Growth Precinct from Farming Zone, Rural Living Zone and Public Use Zone to General Residential Zone and amend the extent of the Vegetation Protection Overlay Schedule 1 within the precinct.
Moonee Valley C200moon proposes to apply the Heritage Overlay to 60 individual heritage places, 9 extended heritage precincts, 18 new heritage precincts and 1 serial listing, introduce Statements of Significance in the Schedule to the Heritage Overlay and update the incorporated document City of Moonee Valley Permit Exemptions Policy – Heritage Overlay Precincts, May 2019 to include the additional places and precincts.
Ballarat C222ball proposes to insert a new heritage place HO225, known as ‘Ballarat Saleyards (former), 1020 La Trobe Street, Delacombe’ in the Heritage Overlay by amending maps 21HO and 26HO and a new Incorporated Document ‘Ballarat Saleyards (former) - Statement of Significance, November 2019’.
Mildura C109mild proposes to apply the Public Acquisition Overlay, Schedule 4 (PAO4) to land at 704 and 706 Deakin Avenue, Mildura for the Mildura South Regional Sporting Precinct.
Moyne C69moyn proposes to implement the recommendations of the Port Fairy Coastal and Structure Plan, 2018 by revising the Local Areas Policy relevant to Port Fairy in the Local Planning Policy Framework of the Moyne Planning Scheme, making relevant changes to the zone and overlay controls applicable to Port Fairy, and updating the operational provisions.

Panel Reports
Bayside C160bays proposes to implement the Highett Structure Plan, 2018, by introducing new residential zone schedules and making other associated changes to the Bayside Planning Scheme.

NSW

Minister’s Good Practice Guideline MGPG-1: Virtual Meetings
Issued by the Minister for Local Government pursuant to section 87 of the Local Government Act 2020.
The Victorian Government’sCOVID-19 Omnibus (Emergency Measures) Act 2020 has introduced into the Local Government Act 2020(the Act) new mechanisms that allows for virtual council meetings –to ensure local government decision-making can continue during the coronavirus pandemic. These new measures will be in force from1 May 2020 until 1 November 2020.  More...

Office of Local Government Circulars

20-18 Important changes for all councils made by the COVID-19 Legislative Amendment (Emergency Measures-Miscellaneous) Act No.2
May 19, 2020 - Category: Circular to Councils Status: Active Circular Details: 20-18 / 19 May 2020 / A703512 Contact: Policy Team / 02 4428 4100.  More...

20-17 Relaxation of some restrictions on the attendance by councillors and staff at council and committee meetings during the COVID-19 pandemic
May 19, 2020 - Category: Circular to Councils Status: Active Circular Details: 20-17 / 19 May 2020 / A703212 Contact: Council Governance Team/ 02 4428 4100/.  More...

16 COVID-19 Economic Stimulus Package
May 13, 2020 - Category: Circular to Councils Status: Active Circular Details: 20-16 / 13 May 2020 / A702650 Contact: Performance Team and Council Engagement Team.  More...

eplanning Platform
On 1 July 2020 all Councils across Sydney, Newcastle, the Central Coast and Illawarra will be required to start accepting and processing DAs, complying development certificates and post-consent certificates via the NSW Planning Portal. It will be mandatory for all greater metropolitan councils to process all applications via ePlanning by the end of 2020. The remaining councils must process all applications through the NSW Planning Portal by 1 July 2021.  More...

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

Improving the review of local infrastructure contributions plans - discussion paper
Notification start-end date 15/04/2020 - 12/06/2020
Higher-rate local infrastructure contributions plans are independently reviewed to ensure that they are reasonable. The Department has identified ways to improve the review process of local infrastructure contributions plans to make it more efficient while maintaining its important function.  More...

Changes to Housing SEPPs
Seniors Housing State Environmental Planning Policy – the SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020

Queensland

Brisbane Airport Corporation: Projects and Planning
Brisbane Airport Corporation has invested a further $1.8 billion worth of infrastructure to be delivered between now and 2022. Projects to be delivered include Brisbane's New Runway, the Auto Mall development and Terminal redevelopments. Explore airport plans, major projects and development information (May 2020).

Planning legislation amendment
Urgent amendments to Queensland's planning legislation are now in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19. Local Government Temporary use licences updated to 22 May 2020.  More...

DLGRMA: COVID-19 Works for Queensland program
As part of the Queensland Government’s economic recovery package, the Premier announced on 19 May 2020 an initial $200 million in 2020-21 for a COVID Works for Queensland program that will immediately support jobs over the next year.  More...

DLGRMA: 2019–21 Works for Queensland Program (W4Q)
The $600 million Works for Queensland (W4Q) program supports regional Councils to undertake job-creating maintenance and minor infrastructure projects.The Queensland Government has amended the 2019-21 W4Q guidelines to allow 19 Councils to access unspent W4Q funding for COVID-19 related expenses. Please refer to Appendix 4 of the 2019-21 W4Q Program Guidelines for the list of eligible Councils.  More...

Economics and Governance Committee: Report No. 37, 56th Parliament—Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Bill 2019, interim government response
The Government expresses its appreciation to the Economics and Governance Committee for its consideration of the bill and advises that matters relevant to the bill are still under consideration. The Government's final response to the Report will be tabled by 7 August 2020.  More...

Program - Public briefing - Electoral Commission Queensland - 11 May 2020
Legal Affairs and Community Safety Committee - Inquiry into the Electoral Commission of Queensland’s online publication of preliminary and formal counts of the votes cast in the local government elections and state by-elections held on 28 March 2020 inquiry.  More... 

LGAQ: Have you say on the Mobile BlackSpot Program Round 5A
The Australian Government has released a Consultation Paper seeking input on the design of Round 5A of the Mobile Black Spot Program. The consultation paper can be found here. The LGAQ is seeking contributions from councils by 5 June 2020, with Submissions due by 19 June 2020.  More...

LGAQ: Release of the Austroads Guide to Temporary Traffic Management
The formal adoption of the AGTTM in Queensland is planned for July 2020. In preparation for the adoption in Queensland, local government officers involved in traffic management activities can view a Fact Sheet and the new AGTTM and video presentations providing an overview of each section on the Austroads website.

Have your say: future of South Bank
The Palaszczuk Government is encouraging people to have their say on the future of the South Bank precinct, with the roll out of public consultation on the master plan. The master plan would build on the precinct’s iconic features, while harnessing new ideas. It is expected the master plan process will be completed by the end of 2020.  More...

LGAQ: Review of the Strong and Sustainable Resource Communities Act 2017
The Office of the Coordinator-General is leading the review and will be engaging with councils and key stakeholders from the end of January to May 2020.  More...

LGAQ: Key events for Queensland councils in 2020
Events for March – October 2020 are outlined here. Keep an eye on the events page which will be updates as more events are confirmed in the calendar

Cases

Victoria

Carbone v Melton City Council [2020] VSCA 117
INTEREST – Whether amount of compensation paid by first respondent prior to judgment for acquisition of part of applicants’ land constituted ‘a debt or sum certain’ that was ‘recovered’ in the proceeding – Whether ‘good cause is shown to the contrary’ – Leave to appeal granted – Appeal allowed – Supreme Court Act 1986 s 58.

Milograd v Hobsons Bay CC [2020] VCAT 571
Section 77 of the Planning & Environment Act 1987; Hobsons Bay Planning Scheme; General Zone Schedule 1; Planning Policy; Neighbourhood Character; Density; Vehicle Access arrangements.

Brewster v Yarra Ranges SC [2020] VCAT 565
Section 82 of the Planning and Environment Act 1987; Yarra Ranges Planning Scheme; Neighbourhood Residential Zone; Clause 32.09-9 Building and works associated with a Section 2 use; Application to construct outbuilding (men’s shed); Retirement village; Ancillary use; Amenity impacts to neighbouring dwellings.

63 Exhibition Street Pty Ltd v Minister for Planning [2020] VCAT 498
Melbourne Planning Scheme; Section 80 of the Planning and Environment Act 1987; permit granted for new tower in eastern end of Melbourne CBD; Minister for Planning (as the Responsible Authority) has imposed a permit condition 1(a) requiring that the new building’s height be lowered (by the time of the fresh Tribunal hearing) by 14.2 m, key issue is the extent of new shadow over part of the Birrarung Marr public park further to the south; this condition appealed and upheld by VCATin 2017, this Tribunal decision then set aside by the Victorian Supreme Court with consent of the parties; new Division of the Tribunal considering the validity of Condition 1(a) afresh; held that this condition be deleted.

The Lume Australia Pty Ltd v Port Phillip CC [2020] VCAT 521
Section 80 Planning and Environment Act 1987; Port Phillip Planning Scheme; Capital City Zone; Place of Assembly; Conditions.

Spring Constructions Pty Ltd v Banyule CC [2020] VCAT 559
Banyule Planning Scheme; impact of two to three storey development on neighbourhood character; limited incremental change area; landscape outcomes along the Plenty River corridor; interim decision; intrusion into a tree protection zone. 

Figliola v Mornington Peninsula SC [2020] VCAT 560
Section 77 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone; Construction of three double-storey townhouses; Policy; Character

Montgomery Investment Group Pty Ltd v Manningham CC [2020] VCAT 550
Application for review pursuant to section 77 of the Planning and Environment Act 1987; Manningham Planning Scheme; Residential Growth Zone – Schedule 3; Design and Development Overlay – Schedule 13; Doncaster East Village Neighbourhood Activity Centre; Doncaster East Village Structure Plan; ResCode; former Council owned land; townhouse development; basement car parking; responsible authority prefers apartments; section 173 agreement; affordable housing; design considerations; landscaping; reduction in statutory car parking requirement 

Japara Developments Pty Ltd v Greater Dandenong CC [2020] VCAT 546
Section 77 of the Planning and Environment Act 1987, off-site amenity, neighbourhood character, visual bulk of a proposed three storey building 

Wang v Monash CC [2020] VCAT 544
Section 79 of the Planning and Environment Act 1987; Monash Planning Scheme; Two and Three Storey Building; Four Dwellings; Residential Growth Zone – Schedule 3; Clayton Major Activity Centre and Monash National Employment and Innovation Cluster. No permit

Nuvolink Pty Ltd v Melbourne CC [2020] VCAT 541
Section 79 of the Planning and Environment Act 1987; Melbourne Planning Scheme; proposal for multi-storey office building on southern edge of Jolimont precinct; objections made; ‘failure’ appeal to the Tribunal; various contentious planning issues but key one being the ‘design response’; interim decision.

Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 555
Application for summary dismissal of misconceived proceedings – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75(1) – Cancellation and amendment of permits – Request for cancellation of a permit – Planning and Environment Act 1987 (Vic) pt 4 div 3 – Whether applicant lacks standing to request cancellation of a permit – Where Planning Scheme excludes certain notice and decision requirements and from certain review rights – Rights and entitlements of objectors – Whether applicant a person who objected or was entitled to object to permit application – Consideration of rights attaching to certain objections – Meaning of ‘objected or entitled to object’ considered – Held – Applicant does not have standing to bring an application to cancel permit – Proceeding summarily dismissed – Planning and Environment Act 1987 (Vic) ss 5, 6, 52, 57, 87-94 – Cardoso v Greater Bendigo City Council [2006] VCAT 2043, West Valentine Pty Ltd v City of Stonington [2005] VCAT 224 referred to – Boerkamp v The Hon Matthew Guy [2014] VSC 167 distinguished.

Poulter v Yarra Ranges SC [2020] VCAT 554
Section 80 of the Planning and Environment Act 1987; Rural Conservation Zone – Schedule 2; Significant Landscape Overlay – Schedule 8; Bushfire Management Overlay; Property Management Plan; Yellingbo Conservation Reserve; bushfire risk; crash grazing; weed management.

Habita North Pty Ltd v Whitehorse CC [2020] VCAT 548
Section 80 of the Planning and Environment Act 1987, Whitehorse Planning Scheme, Review of conditions, Neighbourhood Character, Visual bulk, Landscaping 

Jovanovic v Mornington Peninsula SC [2020] VCAT 542
Section 77 Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone Schedule 1; Design and Development Overlay Schedule 1; Neighbourhood Character; Landscaping.

Golf Road Project Development Pty Ltd v Monash CC [2020] VCAT 488
Section 149(1) Planning and Environment Act 1987; Monash Planning Scheme; General Residential Zone; Development Plan; Dwellings; Neighbourhood character; Tree retention; Amenity. No permit

NSW

Sutherland Shire Council v SportsCover Australia Pty Ltd on behalf of Certain Underwriters at Lloyds [2020] NSWSC 525
PRACTICE AND PROCEDURE – application by plaintiff to amend Statement of Claim – late amendment – whether defendant prejudiced by amendment.

Donnelly v Hunter’s Hill Council (No 2) [2020] NSWDC 223
Costs – appropriate costs order in circumstances where plaintiff successful in obtaining order for damages and injunctive relief against the defendant Council – defendant Council submitted that the tort of private nuisance had not been established – injunctive relief obtained by the plaintiff was not as originally sought in Statement of Claim filed – alternative injunctive relief sought by plaintiff in Amended Statement of Claim filed with leave after the commencement of the final hearing – alternative submissions on costs – application by plaintiff for indemnity costs

Kelly v Szatow (No 2) [2020] NSWSC
(1) The plaintiff is to pay the defendants’ costs of the appeal proceedings on an ordinary basis.
COSTS – Indemnity costs – No point of principle
Civil Procedure Act 2005 (NSW), s 98. plaintiff’s inexperience as a Councillor is not relevant to determining costs, as the plaintiff was legally represented throughout the appeal proceedings.

Penrith City Council v Dincel Construction System Pty Limited (No 2) [2020] NSWLEC 58
COSTS — Party/Party — Costs orders in interlocutory proceedings - - Penrith City Council (‘Council’) seeks declaratory and consequential injunctive relief against Dincel Construction Systems Pty Ltd and Gaonor Pty Ltd in relation to unauthorised development carried out at premises located at 901-915, 919-929 and 931 Mamre Road, Kemps Creek 

Stokes v Waverley Council (No 3) [2020] NSWLEC 1224
DEVELOPMENT APPEAL – remitted matter – alterations and additions to approved dwelling that has commenced including change in use – exceedance of the height of building development standard – meaning of existing ground level – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards – excavation – consent orders sought

Eastside Projects Pty Ltd v City of Canterbury Bankstown Council [2020] NSWLEC 1217
DEVELOPMENT APPLICATION – boarding house – character compatibility – amenity

Toplace Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1222
APPEAL – modification application – modification to a condition of consent that requires intersection upgrade to be completed prior to any occupation certificate – wording sought to be amended to allow issue of interim occupation certificate – application made pursuant to s 4.55(1A) – the power to modify under s 4.55(1A) can only be exercised if the modification has minimal environmental impact – whether evidence establishes minimal environmental impact 

Lindvest DM Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1218
DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R4 High Density Residential zone – riparian zone – biodiversity protection – apartment design guide

Vella v Hawkesbury City Council [2020] NSWLEC 1199
DEVELOPMENT APPLICATION – for the use of an awning addition attached to an outbuilding – floor area/area – overdevelopment – dominance in the streetscape or rural setting – visual prominence – cumulative impact – land use conflicts – amenity and public interest  
BUILDING INFORMATION CERTIFICATE – approval for a partially built awning attached to an outbuilding

Queensland

BWP Management Limited & Anor v Ipswich City Council [2020] QCA 104
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – CATEGORIES OF LAND – OTHER TYPES OF PROPERTY – where there is a Bunnings Warehouse on each applicant’s land – where each applicant’s land is within the area governed by the Ipswich City Council – where the Council has categorised each property, under its 2015-2016 Budget, as a “Drive-In Shopping Centre” – where the applicants say that the correct category is that of a “Shop – Single” – where the Land Court held that the correct category was “Shop – Single” – where the Land Appeal Court overturned that finding – whether the Land Appeal Court erred in law in its construction of the Budget

STATUTES – SUBORDINATE LEGISLATION – CONSTRUCTION – GENERALLY – where the meaning of the words of a statutory definition are not to be construed by reference to the term which is defined, for the reason that this would involve circularity – where the use of the lands fell within the text of each category of land – where the question of construction had to be resolved by the implication of a qualification to the words of one category or the other –whether the expression “Shop – Single” should be qualified by an implication – whether it is necessary to consider the terms of the instrument as a whole, including the term “Drive In Shopping Centre” – whether there is circularity in referring to the language of the defined term for that purpose

Western Downs Regional Council v Geldard (No 2) [2020] QLAC 2
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was allowed by the Land Appeal Court – where the appellant was a ratepayer-funded council – where the costs below were the subject of consent orders – where the question for the Land Appeal Court to decide was a straightforward matter of statutory interpretation – whether costs should follow the event in the Land Appeal Court – whether the respondent should pay the appellant’s costs in the court below notwithstanding that costs in that court were the subject of consent orders
Land Court Act 2000 Qld s 34; Local Government Regulation 2012 Qld 2012

Legislation

Commonwealth

Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020
(2020-177) — published LW 30 April 2020
Reminder: Local Government (General) Amendment (COVID-19) Regulation (No 2) 2020 (2020-176) — published LW 24 April 2020
Determination of fees - Despite section 241 of the Act, the determinations under that section for the year beginning 1 July 2020 must be made not later than 1 July 2020 rather than 1 May 2020
Reminder: Local Government (General) Amendment (COVID-19) Regulation 2020 (2020-152) — published LW 17 April 2020 - Division 15 COVID-19 pandemic—temporary measures
Operational plan - Despite section 405(1) of the Act, the operational plan of a council for the year beginning 1 July 2020 must be adopted before 31 July 2020 rather than 30 June2020
Payment of rates and annual charges - (1) Despite section 562(3) of the Act, an instalment (whether a single instalment or a quarterly instalment) of annual rates and charges that would have been payable by 31 August 2020 is instead payable by 30 September 2020

Victoria

Statutory Rules
No 34 COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
12 May 2020 - The objective of these Regulations is to modify the application of various provisions of the following Acts to further provide for electronic signatures, witnessing the signing of documents by audio visual link, and related matters

No 38 COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020
19 May 2020 - The objective of these Regulations is to modify the application of various provisions of the following Acts to further provide for service, attendance by audio visual link and related matters

Current Reprint Statutory Rules
No 6 Victorian Civil and Administrative Tribunal Rules 2018
Statutory rule number 77/2018 - Version 006 - 15 May 2020
Order 8 – Residential Tenancies Division
Order 8a – Planning and Environment Division
Victorian legislation can be accessed here 

NSW

Acts

No 5 COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020
Assented to 14 May 2020 – Includes amendments to the Local Government Act
1.19 Local Government Act 1993 No 30[1] Sections 509(1) and 512(1)Omit “or 511A” wherever occurring. Insert instead “, 511A or 747AD”.[2] Section 511 Catching up of shortfall in general income. Omit “either or both of the next 2 years” from section 511(1).Insert instead “any 1 or more of the next 10 years”.

Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Lapsing of Consent) Regulation 2020 (2020-206) — published LW 15 May 2020
Environmental Planning and Assessment Amendment (Sydney Gateway) Order 2020 (2020-211) — published LW
Land and Environment Court (Amendment No 1) Rule 2020 (2020-207) — published LW 15 May 2020

Environmental Planning Instruments
State Environmental Planning Policy (State and Regional Development) Amendment (Botany Rail Duplication and Cabramatta Loop Projects) 2020 (2020-208) — published LW 15 May 2020
State Environmental Planning Policy (State and Regional Development) Amendment (Water Treatment Facilities) 2020 (2020-209) — published LW 15 May 2020

Queensland

Subordinate Legislation as made – 22 May 2020
No 76 State Development and Public Works Organisation (Cairns Convention Centre Expansion Project) Amendment Regulation 2020
No 77 Environmental Protection (Reef Protection Measures) Amendment Regulation 2020

Subordinate Legislation as made – 15 May 2020
No 67 Natural Resources and Other Legislation Amendment (Postponement) Regulation 2020
The period before automatic commencement, under the Acts Interpretation Act 1954, section 15DA(2), of the postponed law is extended to the end of 24 May 2021.

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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