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Inside track: Local Government

21 May 2019

#Local Government

Inside track: Local Government

In the media

Mayors urge rapid climate change action as new report shows damage to agriculture, property sectors
Urgent action on climate change must be the incoming federal government’s priority, 15 mayors from across Australia said in a joint statement released 8 May (10 May 2019).  More...

Council climate alliance puts heat on state, feds
Mayors from Australia’s council climate alliance have issued a joint statement calling for action from all levels of government (08 May 2019).  More...

Councils demand action on housing crisis
The Lord Mayors of Australia’s two biggest cities have launched a call for action on the nation’s homelessness and housing affordability crisis, demanding targeted funding and systemic change (05 May 2019).  More...

NSW

Sydney is in drought': Water restrictions loom as dam levels drop at record rate
Water levels in dams are dropping faster than they have in decades, according to new research by Sydney Water, edging Sydney closer to the re-introduction of water restrictions (05 May 2019). More...

Merged councils ‘more efficient’ but problems linger
NSW’s amalgamated councils have become more efficient but legacy ICT systems and a lack of direction on service delivery continue to plague councils, according to an audit (01 May 2019). More...

Victoria

Melbourne unveils record infrastructure pipeline
Plans to massively increase parklands and protect local heritage are contained in City of Melbourne's draft budget (09 May 2019).  More...

Commission of inquiry into South Gippsland Shire Council
Minister for Local Government Adem Somyurek has announced his intention to hold a Commission of Inquiry into the South Gippsland Shire Council under section 209 of the Local Government Act 1989. The Commission will look at the stability of the Council, the behaviours of individual councillors (09 May 2019).  More...

CEO dumped as Victorian council faces suspension
A Victorian council on the brink of suspension has rocked the boat again, appointing a new Chief Executive Officer a week after dumping the former CEO, whose contract was due to end in June (08 May 2019).  More...

Council review in Victoria ‘needs to be more robust’
Victoria’s  peak municipal group has expressed concern to the Local Government Minister that the scope of a Spring Street review into council rates is too narrow (01 May 2019).  More...

Fears Victoria's recycling woes could worsen as e-waste ban kicks in
From July 1, residents will be forced to take greater responsibility for the disposal of so-called e-waste - from old mobile phones and whitegoods, to hairdryers, computers and air conditioners. But with only eight weeks before the landfill ban kicks in, councils warn that the government has not funded enough collection sites, and that community awareness of the ban is too low (28 May 2019).  More...

In Practice and Courts

Help shape the National Disability Strategy beyond 2020
Australian governments are asking people to help shape the future of Australian disability policy for 2020 and beyond. The first stage of consultation is from April to June 2019. Councils are encouraged to promote engagement in these consultations within their local communities.  More...

The new Class 1 Agricultural Vehicle Notice has Commenced
The new National Class 1 Agricultural Vehicle and Combination Mass and Dimension Exemption Notice commenced on 1 May. Specific information for council road managers about the new exemption notice is in the latest fact sheet. The transition period runs until 30 April 2020, or until current state notices expire, whichever happens first (10 May 2019).  More...

VAGO: Outcomes of investing in regional Victoria
This report into the Regional Jobs and Infrastructure Fund found that Regional Development Victoria still cannot reliably determine whether their grants have improved economic or social outcomes directly or indirectly, or whether any benefits have been sustained beyond the immediate injection of funds into a community (01 May 2019).  More...

Queensland Productivity Commission Container Refund Scheme - price monitoring review: issues paper
The Queensland Container Refund Scheme commenced on 1 November 2018 - allowing people to take empty drink containers to a collection point for a refund. The scheme is funded through a surcharge on beverage manufacturers. The Queensland Productivity Commission has released this issues paper to assist interested parties to prepare submissions to the review (01 May 2019).  More...

National General Assembly of Local Government (NGA)
This year’s National General Assembly of Local Government (NGA) is due to be held from 16 to 19 June 2019 in Canberra.  More...

NSW

ICAC discussion paper: Enhancing the democratic role of direct lobbying in NSW
The NSW ICAC is seeking public input as part of a new investigation it is conducting into the regulation of lobbying, access and influence in NSW (Operation Eclipse). The discussion paper is appended to an introductory paper, The regulation of lobbying access and influence in NSW: a chance to have your say, which also explains how to make a submission. The closing date for consultation is 24 May 2019.  More...

IPART: Indexation of local infrastructure contribution rates
IPART is seeking stakeholder views on how councils should index contribution rates between the adoption of a local infrastructure contributions plan, and the revision of the contributions plan. In particular, we sought feedback on different approaches to indexing contribution rates to account for changing land costs.  More...

Developer contributions plans - IPART fact sheet
The fact sheet explains how IPART proposes to assess whether local roads should be included in developer contributions plans and whether the apportionment of the road costs is reasonable. It’s an issue that’s relevant to all councils preparing contributions plans for IPART assessment, as well as developers and other stakeholders. Download the fact sheet from the IPART web site (26 April 2019).

Community Participation Plan updated FAQs
The Environmental Planning and Assessment Act 1979 has been updated to make community participation central to the planning system. Supporting this objective is a new measure requiring all public authorities that have planning functions under the EP&A Act, including councils, to develop community participation plan (CPP). CPPs must be finalised and published on the ePlanning portal by 1 December 2019.  More...

Reminder: Environmental Planning & Assessment Act updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, local strategic planning statements for councils in the Greater Sydney Region and community participation plans. There will be a number of other changes that will involve further design and consultation from mid to late 2018 outlined here.

Queensland

LGAQ: Have your say on the future of transport in Queensland
The Department of Transport and Main Roads has released the Draft Queensland Transport Strategy for consultation (01 May 2019).  More...

Crime and Corruption Commission (CCC): Current prosecutions
The suspended Logan mayor and seven current councillors are expected to be charged with criminal offences by the CCC following a major corruption investigation into Logan City Council (26 April 2019).  More...

Safer Buildings combustible cladding checklist ticks over to Part 2
Buildings that need further assessment following the conclusion of Part 1 will have until 29 May 2019 to file a building industry professional report to the QBCC.  More...

LGAQ: Information sessions - Changes to Queensland's plumbing and drainage laws
Queensland's new plumbing and drainage laws will commence on 1 July 2019, including the Plumbing and Drainage Act 2018. The Department of Housing and Public Works will be holding information sessions across Queensland during April-June 2019 about the upcoming changes and local government staff are encouraged to attend (29 April 2019).  More...

Final consultation - Draft approved forms and templates for new plumbing reforms
The Department of Housing and Public Works has launched the final stage of public consultation on the new plumbing law reforms,  including the draft approved forms which must be used by industry and local government from 1 July 2019 under the Plumbing and Drainage Act 2018 and the Plumbing and Drainage Regulation 2019.  More...

Consultation: Yeronga proposed development scheme for a mixed-use precinct in the Yeronga Priority Development Area (PDA)
The scheme establishes a planning framework to transform the site and sets out intended land uses, development criteria and infrastructure envisaged for the PDA. Submissions can be made between 1 April and 17 May. More...

LGAQ reminder: Have your say energy pricing proposals
Have your say on regulatory proposals submitted by Ergon energy and Energex. The AER invites interested parties to make submissions on Energex's regulatory proposal by the close of business on 16 May 2019.  More...

The Premier’s Outback Tourism Events Program: Funding rounds 2019
Each application must be for unique submissions and events must be delivered on or before 31 December 2020. Round 2 opens in June 2019. More...

Cases

Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14
Appeal dismissed. Aviation - Carriage of passengers by air - Accident - Carrier's liability - Where respondent engaged by appellant to carry out survey using helicopter - Where passenger aboard helicopter killed in crash - Where Pt IV of Civil Aviation (Carriers' Liability) Act 1959 (Cth) applied - Where s 28 provided that carrier liable for damage sustained by reason of death of passenger - Where s 35(2) substituted liability under s 28 for any civil liability of carrier under any other law in respect of death of passenger - Where s 34 imposes time limit on availability of right of action created by s 28 - Where widow, daughter and son of passenger brought claims in tort against appellant and respondent for damages for negligently inflicted psychiatric harm resulting from death of passenger - Where claims brought outside time limit prescribed by s 34 - Whether claims precluded by Act. 

NSW

Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
APPEAL - appeal against a Commissioner’s decision on question of law - refusal of development consent to alter approved building - contravention of floor space ratio development standard - clause 4.6 request seeking to justify contravention - Commissioner not satisfied request adequately addressed matters in cl 4.6(3) - whether misconstruction of development standard – whether applied wrong test under cl 4.6(4)(a)(i) or (ii) - whether misdirection in applying cl 4.6 to development standard - whether misdirection concerning lack of adverse amenity impacts - whether misdirection concerning environmental planning grounds - error not material - Commissioner’s decision not vitiated.  

Burbridge v Gounakis [2019] NSWLEC 1202
TREES (DISPUTES BETWEEN NEIGHBOURS) - falling limbs - risk of damage and injury - change in circumstance since previous decision - root damage - respondents not aware of damage prior to application - orders for tree removal - no orders for compensation.

Council of the City of Sydney v Vision Land Glebe Pty Ltd [2019] NSWLEC 60
APPEAL – appeal against Commissioner’s decision on questions of law - concept development application - demolition of existing building and approval of envelope of replacement building - issue of whether existing building of heritage significance - Commissioner found building not to be of heritage significance - Commissioner preferred one witness over another - Commissioner found adaptive reuse not economically viable - Commissioner accepted only witness as not contradicted - adequacy of reasons for findings - alleged irrationality of findings - whether denial of procedural fairness in making findings - delay in judgment - whether delay affected findings.  

Guthrie v Lane Cove Council [2019] NSWCATAD 74
ADMINISTRATIVE LAW - freedom of information, government information public access - information supplied in response to application - scope of application - jurisdiction.

Barrak v City of Parramatta Council [2019] NSWLEC 59
LOCAL GOVERNMENT - closed council meeting - councillor expelled by Lord Mayor - expulsion was for committing act of disorder (for calling the Lord Mayor a “clown”) - was conduct disorderly - conduct disorderly - was expulsion by Lord Mayor without resolution of council valid - expulsion invalid - no utility in bare declaration - no relief granted.
LOCAL GOVERNMENT - closed council meeting - councillor makes comments about external legal advisers - were comments an act of disorder - comments a breach of cl 256(1)(e) of the Local Government (General) Regulation 2005 and thus an act of disorder.
LOCAL GOVERNMENT - closed council meeting - meeting dealing with personnel matter - resolution that councillors return confidential papers and notes - was resolution valid - resolution valid.
LOCAL GOVERNMENT - council meeting - resolution that councillor apologise for words said at previous meeting and for failure to return confidential papers and notes - were elements concerning failure to return confidential papers and notes acts of disorder - those elements not acts of disorder - three valid elements in resolution were acts of disorder - councillor declines to apologise or return confidential papers and notes - councillor expelled for not doing so - was expulsion valid - expulsion valid.
LOCAL GOVERNMENT - council meeting - resolution that councillor be removed from committees - resolution adopted after councillor had been expelled from meeting - was councillor required to be afforded procedural fairness and natural justice before removal - removal part of political process of council and no procedural unfairness or denial of natural justice before removal - removal also sanctioned by s 47 of Interpretation Act 1987 - removal from committees valid.
LOCAL GOVERNMENT - council meetings - councillor expelled by resolutions of council for ongoing failure to apologise for original act of disorder - power to reactivate requirement for apology remains ongoing - expulsions from subsequent meetings valid.
COSTS - limited success by applicant not sufficient to depart from presumption that costs follow the event - Applicant to pay Respondent’s costs on ordinary basis.

Queensland

Sunshine Coast Regional Council v Thomas (No 2) [2019] QDC 70
APPEAL - COMPLAINT - SUMMONS - COSTS FUND CERTIFICATE - where a learned acting Magistrate struck out a complaint and summons in which the appellant sought to prosecute the respondent for breach of s 194 of the Animal Management (Cats and Dogs) Act 2008 (Qld) - where the appeal was allowed – where Counsel for the respondent made an application for an appeal costs fund certificate pursuant to ss 15(2) and 21(1) of the Appeal Costs Fund Act 1973 (Qld) - where the learned acting Magistrate was heavily influenced by the respondent’s submissions in making his decision to strike out the complaint and summons. Appeal Costs Fund Act 1973 (Qld) ss 15(2), 21(1).

Kozik v Redland City Council [2019] QSC 109
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - GENERALLY - where the defendant is a local government with responsibilities in respect of the levying of rates on all rateable land within Redland City Council - where the defendant resolved to levy special rates and charges on certain rateable land within Redland City - where the owners of that rateable land were given notice of those special charges - where the plaintiff is a rate payer in that area and was issued with such a notice - where the special charges were not validly levied by the defendant - where the defendant repaid to each rate payer a proportion of those special charges but declined to return the balance of the special charges on the basis that those sums had been spent for the benefit of the relevant rate payers - where the plaintiff submits strike out is appropriate on the basis of statutory interpretation and the inapplicability of the pleaded defences to the plaintiff’s framed claim - where the defendant opposes the strike out application on the basis that neither the question of statutory interpretation nor the availability of defences are free of doubt - whether the defendant’s pleading, in the relevant material respects, discloses no reasonable defence, has a tendency to prejudice or delay a fair trial, is unnecessary, scandalous, frivolous or vexatious or is otherwise an abuse of process. Local Government Act 2009 Qld; Local Government Regulation 2012 Qld; Local Government (Finance, Plans and Reporting) Regulation 2010 Qld.

Legislation

NSW

Regulations and other miscellaneous instruments

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Amendment (Building Code of Australia) Regulation 2019 (2019-187) - published LW 10 May 2019.
Lobbying of Government Officials (Lobbyists Code of Conduct) Amendment Regulation 2019 (2019-188) - published LW 10 May 2019.
Administrative Arrangements (Administration of Acts—General) Order (No 2) 2019 (2019-178) - published LW 1 May 2019.
Administrative Arrangements (Administrative Changes—Ministers) Order (No 2) 2019 (2019-179) - published LW 1 May 2019.
Administrative Arrangements (Administrative Changes—Public Service Agencies) Amendment Order 2019 (2019-180) - published LW 1 May 2019.

Queensland

Bills

Criminal Code (Trespass Offences) Amendment Bill 2019
Introduced by: Mr D Last MP on 1/05/2019 Stage reached: Referred to Committee on 1/05/2019
This Bill seeks to protect Queensland businesses from unlawful trespass activities by introducing three new criminal offences. These offences are: aggravated trespass, which enables the prosecution of a person who enters premises, private land or transport infrastructure with the intent to cause economic harm to another person, business or the State; serious criminal trespass, which enables the prosecution of a person who enters premises, private land or transport infrastructure

Electoral and Other Legislation Amendment Bill 2019
Stage reached: Referred to Committee on 1/05/2019
Implements recommendations from the Crime and Corruption Commission's 'Operation Belcarra: A blueprint for integrity and addressing corruption risk in local government' and makes operational improvements to the State's electoral system by implementing the Government's response to 'A review of the conduct of the 2016 local government elections, the referendum and the Toowoomba South by-election' (Soorley report).

Local Government Electoral (Implementing Stage 2 of Belcarra) and Other Legislation Amendment Bill 2019
Stage reached: Referred to Committee on 1/05/2019
An  Act  to  amend  the  City of Brisbane Act 2010, the Local Government Act 2009, the Local Government Electoral Act 2011, the Referendums Act 1997 and the Right to Information Act 2009.
The Bill requires all candidates at Local Government elections, including sitting Councillors, to undertake training as a condition of their nomination and  mandates full preferential voting for mayoral and single councillor elections, to be effective for the 2020 local government election.

Subordinate legislation as made
No 63 Local Government (Dissolution of Logan City Council) Amendment Regulation 2019 - 03 May 2019.
This Regulation is made under sections 123 and 270 of the Local Government Act 2009. The aim of this Regulation is to dissolve the Logan City Council and appoint an interim administrator to act in place of the councillors. This Regulation commenced on 2 May 2019.

No 66 Proclamation No. 1—Economic Development and Other Legislation Amendment Act 2019 (commencing certain provisions) - 10 May 2019.

No 67 Planning and Environment Court (Mediation) Amendment Rule 2019 - 10 May 2019.

Contacts:

Brisbane
Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com

Melbourne
Joseph Monaghan, Partner
T: +61 3 9321 9857
E: joseph.monaghan@holdingredlich.com

Sydney
Peter Holt, Special Counsel
T: +61 2 8083 0421
E: peter.holt@holdingredlich.com

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.

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