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Inside track: Local Government

26 August 2020

#Local Government

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Inside track: Local Government

Regular casual employment attracts new legal exposure

Casual employment is at the centre of most policy debates around low wages growth and labour market inequality. Casuals do not receive minimum entitlements to notice, redundancy pay and paid leave, and often face insecurity in working hours and employment. Generally speaking, they are difficult to organise collectively, and therefore miss out on the benefits achieved by unionised permanent workers through enterprise bargaining.

The perceived problems with workforce ‘casualisation’ have received new focus in some significant developments in labour law pertaining to casual employment, namely:

  • two significant Federal Court rulings have found putative casuals to be entitled to paid leave entitlements in certain circumstances
  • the Fair Work Commission (FWC) has granted award-based regular casuals the right to request conversion to permanent employment, and the Federal Government has suggested this right should be granted universally, and
  • the JobKeeper wage subsidy scheme and its extension to long term casuals only.

 Workpac rulings

Casuals are excluded from accessing the entitlements to paid annual leave, personal/carer’s leave and compassionate leave provided by the National Employment Standards (NES) in the Fair Work Act 2009 (Cth).

In Workpac Pty Ltd v Skene ([2018] FCAFC 131) (Skene ruling) the Full Federal Court ruled that, for the purposes of the NES exclusion of casuals, a person is a casual when there is an absence of a firm advance commitment as to the duration of the employee’s employment or the days or hours the employee will work.

Where these promises are not given, this usually means the contract between the parties is for casual employment. It doesn’t matter that those commitments are subject to the rights of either party to terminate employment or adjust the agreed pattern of work.

Following the Skene ruling, an employment relationship will not be casual, at least for the purposes of the exclusion from paid leave entitlements under the NES, if the following are satisfied:

  • where the employer gives the employee a firm advance commitment to continuing and indefinite work, according to an agreed pattern of work, and
  • the employee reciprocates by committing to be available on a continuing and indefinite basis, to perform work according to that agreed pattern.

If neither the employer nor the employee gives this commitment, the employee is likely to be entitled to NES paid leave entitlements.

The Federal Government responded to the Skene ruling by amending the Fair Work Regulations with effect 18 December 2018, to assist an employer who employed a person “on the basis that the person is a casual employee” and paid that person a clearly identifiable loading amount to compensate the person for not having one or more relevant NES entitlements. If in fact, that person was found not to be a casual employee for the purposes of the NES, and makes a claim to be paid “an amount in lieu of one or more of the relevant NES entitlements”, the employer may make a claim to have the loading amount taken into account in determining any amount payable in response to that claim. In other words, an employer can argue the amount payable to the employee may be offset by the casual loading payments already made.

In a sequel to the Skene ruling, the Full Federal Court in Workpac Pty Ltd v Rossato ([2020] FCAFC 84) (Rossato decision) has issued a decision that has substantially undermined the capacity of employers to rely on this Regulation. The Rossato decision reaffirmed the ‘firm advance commitment’ test in the Skene ruling, in determining that a putative casual employee was entitled to NES paid personal/carer’s leave and compassionate leave. In the Rossato decision, the employment contract stated that the employee had the ability to “refuse and cancel” shifts or terminate the assignment at any time. However, the Court ruled there was still a firm advance commitment to work, given by both parties. This was because it was in fact extremely difficult for the employee to actually cancel or refuse to work shifts, and it would expose him to disciplinary sanctions if he did so.

In the Rossato decision, the Court regarded the following factors as inconsistent with casual employment:

  • the contract was for ongoing or indefinite employment (subject to termination on the giving of notice), not short term temporary employment
  • the employee worked the same hours as full-time employees at the workplace
  • the work was not to be performed on demand but was pre-programmed long in advance and fixed by a roster
  • the employer had the right to stand down the employee without pay in circumstances of a strike, breakdown of machinery, or any stoppage of work for any cause for which the employer cannot be held reasonably responsible
  • there were no mechanisms or arrangements that would be required to facilitate the allocation of irregular or intermittent work to the employee, e.g. notification of proposed rosters and system for acceptance. Rosters were not presented to the employee for him to pick and choose which shifts he would work.

The Court did not regard as significant the following factors that pointed to casual employment:

  • the hourly pay rate
  • the employee’s requirement to submit timesheets – the Court saw this as a means to the employer’s labour hire agency calculating pay, not as an indicator of irregular working hours
  • the employment being terminable on one hour’s notice – the Court considered that where the employer was in the business of labour hire, it was likely to have greater capacity to replace departing employees quickly because of a readily available source of spare employees on its books.

The Court ruled that Rossato had not claimed an amount in lieu of NES entitlements to paid leave. Rather, he had claimed the payment due pursuant to those entitlements. As such, the Regulation did not assist the employer in this instance.

Casual conversion

The FWC decided on 9 August 2018 to develop a new model clause providing for a right by casual employees to request conversion to full-time or part-time employment.

This entitles a ‘regular casual employee’ a right to request to convert to permanent employment.

A regular casual employee is defined as a casual employee who has, in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a permanent employee under the provisions of the Modern Award.

The employee’s right to request to be converted to either full-time or part-time depends on whether they have worked the equivalent of full- or part-time hours in the preceding 12 months.

Nothing in either clause requires an employer to increase the hours of a regular casual employee seeking conversion to full- or part-time employment.

Employers may refuse a request only on reasonable grounds and after consultation with the employee.

Reasonable grounds include where:

  • it would require significant adjustment to the employee’s work hours in order for him or her to be converted (essentially meaning the employee does not in fact fit the definition of ‘regular casual employee’ under sub-clause (b)
  • it is known or reasonably foreseeable that the position will cease to exist within the next 12 months
  • it is known or reasonably foreseeable that the amount of hours the employee is required to perform will be significantly reduced in the next 12 months
  • it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s work hours will be required to be performed in the next 12 months that cannot be accommodated by the employee.

The employer must, within 21 days of the request being made, provide reasons in writing for any refusal to grant a request for casual conversion. If the employee does not accept the refusal, this will constitute a dispute that must be dealt with under the dispute resolution procedure in the particular award.

Employers must provide all new casual employees, whether regular or not, with a copy of the provisions of the applicable model conversion clause within the first 12 months of their engagement by the employer.

An employer may not engage and re-engage (including a refusal to re-engage), or reduce or vary the hours of a casual employee in order to avoid any right, or obligation, under either clause.

The casual must work a pattern of hours on an ongoing basis for at least 12 months to be entitled to convert to permanent employment. Yet, the fact a casual employee works such a pattern would suggest there was a prior commitment by the employer to offer this work and by the employee to accept it. In other words, many so-called regular casuals may actually be permanents in the ordinary sense, and they will not have casual conversion rights.

In June 2020 the Federal Government indicated support for amending the NES to extend this model award provision so as to enable casuals to request conversion to permanent employment after 12 months of regular casual employment. The Government indicated it would include a definition of casual employment in the NES. This most likely will adopt the test developed by the Federal Court in the Workpac rulings. The Government is also likely to address the defect identified in Fair Work Regulation 2.03A by the Rossato decision, so that an employer who paid a casual loading to a putative casual can rely on that payment to offset claims for paid leave, should the employee be found to be entitled to that benefit.

JobKeeper

An employer who is qualified for the Jobkeeper scheme can only receive JobKeeper subsidies for a casual employee if that person is a casual employed on a regular and systematic basis during the 12 months ending on 1 March 2020 and/or 1 July 2020. 

When assessing whether a casual is engaged on a regular and systematic basis, it is the engagements that must be regular and systematic – not the hours worked pursuant to such engagements.

It is not necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic.

The work performed pursuant to the engagements need not be regular and systematic or frequent. The employee does not need to be engaged at set times. Regular does not mean uniform, frequent or constant. A regular basis may be frequent though unpredictable engagements.

The concept of engagement on a systematic basis does not require the employee to be able to foresee or predict when his or her services may be required. In fact, a systematic basis need not involve either predictability of engagements or any assurance of work at all.

Engagement on a systematic basis requires more than regularity or frequency. The basis of engagement must be in accordance with a system, method or plan.

In Chandler v Bed Bath N' Table Pty Ltd ([2020] FWCFB 306) a casual who had worked over a period of eight months and three days sought to argue that she had served the requisite six months qualifying period.

While the employee worked regularly at least three days each week, the number of days worked each week, the days of the week worked and the duration of the shift on each occasion varied significantly.

The FWC Full Bench ruled the employment of the casual was on a regular and systematic basis and she had a reasonable expectation of continuing employment on this basis. That was because the employee was employed:

  • under an employment contract to work in a particular position in accordance with a pre-established and ongoing framework of legal obligations that required her to be available for work during certain periods of high trading periods
  • to work a monthly roster set in advance based on her prior indication of availability to work
  • in every week of her employment, and in 30 of those weeks, she was employed for three or four shifts in the week.

Conclusion

To minimise risk of claims for paid NES annual leave from casuals, employers should consider the following options:

  • roster the ‘casuals’ to preclude the ‘firm advance commitment’ referred to in the Workpac cases
  • enable casuals to convert to permanent employment, using the model casual conversion clause in modern awards as a guide
  • make contingency for unpaid leave claims from casuals. In this respect, employers should make it expressly clear (in new contracts, pay slips or by other means) that the casual loading is paid to compensate for the absence of NES paid leave entitlements. This will improve an employer’s capacity to offset the loading against claimed leave payments relying on Fair Work Regulation 2.03A.

Author: Charles Power

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Future cruise ship terminal at Gold Coast's The Spit in doubt amid 'challenging' economy
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In practice and courts

Victoria

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Sustainable Infrastructure Fund Grants
Grants of up to $300,000 are open to local councils and alpine resort management boards to use recycled materials such as glass, paper, cardboard, plastics and rubber to build new infrastructure including roads, footpaths, outdoor park equipment, drainages and cycleways (13 August 2020).  More...

Bushfire Recovery Grants for Local Government Authorities and Community Service Organisations
Charities, not-for-profits and other local community service providers across Victoria – as well as 18 Local Government Authorities and four Alpine Resorts – will be eligible to apply for the Bushfire Recovery Grants for Local Government Authorities and Community Service Organisations (10 August 2020).  More...

Minister’s Good Practice Guideline MGPG-1: Virtual Meetings
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AgriLinks Upgrade Program Fundin
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Cases

Clarence City Council v Commonwealth of Australia [2020] FCAFC 134
HIGH COURT AND FEDERAL COURT – jurisdiction of the Federal Court – power to award declaratory relief – nature of a declaratory judgment – standing to seek declaratory relief – discretion to award declaratory relief – municipal councils seek declaration in respect of the interpretation and application of leases to which they are not a party – leases between Commonwealth and corporate lessees of airports – contractual mechanism for payment of rates, land tax and other taxes by lessees to councils – mechanism contemplates that councils will participate in, and derive benefits under, the leases – Commonwealth and lessees in agreement as to calculation of payments – councils dispute calculation of payments – whether councils have standing to seek declaratory relief – whether councils have a sufficient interest in declaratory relief – whether “matter” arises under laws made by Commonwealth Parliament
CONSTITUTIONAL LAW – judicial power of the Commonwealth – requirement for a “matter” – whether there is a “matter” before the Court – whether there is a justiciable controversy – whether there is an enforceable right, duty or liability to found a “matter”
CONTRACTS – doctrine of privity of contract – scope and effect – difference between executory and declaratory judgments – whether councils lack standing to seek declaratory relief because of inconsistency with doctrine of privity of contract – accord and satisfaction – estoppel. Held: appeals allowed – notices of contention dismissed – a “matter” exists before the court – councils have standing to seek declaratory relief – councils have real commercial and practical interest in declaratory relief
Airports Act 1996 (Cth)
Airports (Transitional) Act 1996 (Cth)
Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4
Federal Court of Australia Act 1976 (Cth), ss 19(1), 21, 23
Fire Service Act 1979 (Tas), Div 3 of Pt VI
Judiciary Act 1903 (Cth), ss 39(1B), s 39A(1A), 39B(1A), 78B
Local Government Act 1993 (Tas), s 93A
Valuation of Land Act 2001 (Tas)

Victoria

Browne v Moreland CC [2020] VCAT 858
Sections 80 & 82 of the Planning & Environment Act 1987; Moreland Planning Scheme;
Alterations & additions to single dwelling: Heritage & off-site amenity impacts

Connor v Nillumbik SC [2020] VCAT 852
Section 82 Planning and Environment Act 1987, Significant Landscape Overlay – Schedule 3, building height, neighbourhood character, landscape character

James v Bass Coast SC [2020] VCAT 850
Bass Coast Planning Scheme; section 79 of the Planning and Environment Act 1987; proposal for new dwelling; most of proposal deemed acceptable by Council, but Council opposes the proposed road access arrangements; Tribunal review; hearing and focus on road access issue; follow up process; permit approved.

Probert v Greater Geelong CC [2020] VCAT 837
The decision of the Responsible Authority is varied. In permit application PP-689-2019 a permit is granted and directed to be issued for the land at 72-80 Buckley Grove, Moolap in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows: Use of the land for a transfer station and associated advertising signage.

DFC (Ashbury) Pty Ltd v Greater Geelong CC [2020] VCAT 855
Greater Geelong Planning Scheme; whether an asset relocation is generally in accordance with a Precinct Structure Plan; Horseshoe Bend Precinct Structure Plan; Armstrong Creek East Precinct Structure Plan; environmental impacts of co-locating a wetland and retarding basin with a conservation area.

Hedley v Moyne CC [2020] VCAT 857
Pursuant to section 71 of the Victorian Civil and Administrative Tribunal Act 1998, the rejection of the application by the principal registrar is confirmed. The Council’s application for costs is refused. Each party is to bear its own costs. 

Nuvolink Pty Ltd v Melbourne CC [2020] VCAT 811
The demolition of two existing buildings, one of which has a ‘C’ heritage grading, and the construction of a seven storey mixed use building to accommodate offices, a gymnasium and a café. Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.[1]

Lo Giudice v Moonee Valley CC [2020] VCAT 842
Application under section 79 of the Planning and Environment Act 1987; Review the failure to grant a permit within the prescribed time; Moonee Valley Planning Scheme; General Residential Zone – Schedule 1 (GRZ1); Two dwellings on a lot; Side by side townhouses; Basement garages; Neighbourhood character; Clause 55; Energy efficiency; Internal amenity. 

Tay v Knox CC [2020] VCAT 841
Knox Planning Scheme; neighbourhood character assessment for medium density housing; street setback standard and objective. 

Villawood Homes Pty Ltd v Greater Geelong CC [2020] VCAT 840
Greater Geelong Planning Scheme; medium density housing in an Increased Housing Diversity Area; Clause 22.63 of the Greater Geelong Planning Scheme; built form at the interface of an Increased Housing Diversity Area and a General Residential Zone; landscape character and retention of trees within a medium density housing development. 

Podolskaya v Glen Eira CC [2020] VCAT 826
Section 82 of the Planning and Environment Act 1987, Glen Eira Planning Scheme, Repeat Appeal, Inaccurate information on plans, Clause 55.05-4 North Facing Window.

Liu v Boroondara CC [2020] VCAT 802
Section 77 of the Planning and Environment Act 1987, Boroondara Planning Scheme, Neighbourhood Residential Zone, Neighbourhood Character, Landscaping, Visual bulk.

La Mirage Group Pty Ltd v Hume CC [2020] VCAT 834
Section 79 of the Planning and Environment Act 1987; Hume Planning Scheme, Urban Growth Zone (UGZ6); subdivision of land; relevance of Precinct Structure Plan; issue of retention of high value trees; dispute about permit conditions. 

Blue Gem Properties Pty Ltd v Boroondara CC [2020] VCAT 832
Construction of three dwellings on a lot. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Riverdale NAC Investments Pty Ltd v Wyndham CC [2020] VCAT 828
Sections 87 & 89 of the Planning and Environment Act 1987; Wyndham Planning Scheme; Urban Growth Zone; Applied Commercial 1 Zone; Riverdale Precinct Structure Plan; Riverdale Village shopping centre; Permit issued for buildings and works; Request to cancel permit; Standing; Whether permit generally in accordance with the Riverdale Precinct Structure Plan 

Ralph D'Silva Properties Pty Ltd v Darebin CC [2020] VCAT 817
The buildings are to be used for car sales and other commercial facilities at ground and mezzanine level in the High Street building with all remaining parts of the buildings being used for dwellings and associated services.
Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.[1] No permit 

FSD Developments No. 1 Pty Ltd v Stonnington CC [2020] VCAT 823
Section 79 Planning and Environment Act 1987; Stonnington Planning Scheme; Activity Centre Zone Schedule 1; Heritage Overlay Schedule 126; Special Building Overlay Schedule 1; Demolition; Height; Bulk; Existing Music Venue; Significant Community Benefit.

Burrafato Property Development Pty Ltd v Wyndham CC [2020] VCAT 821
Four two storey dwellings attached at ground level; Two middle dwellings reverse living; Design response to neighbourhood character; Car parking, traffic and waste collection.

Rooding Land Pty Ltd v Bayside CC [2020] VCAT 805
Application under section 79 of the Planning and Environment Act 1987. Bayside Planning Scheme. General Residential Zone. Design and Development Overlay, Schedule 10. Bay Street Major Activity Centre. Three storey apartment development. Intensity of development. Built form. Amenity. Traffic and parking.

Manor Central Nominees Pty Ltd v Wyndham CC [2020] VCAT 815
Section 79 of the Planning and Environment Act 1987; Review the failure to grant a permit within the prescribed time; Wyndham Planning Scheme; Commercial 1 Zone (C1Z); Development Plan Overlay – Schedule 2 (DPO2); Construction of buildings and works associated with two convenience restaurants, Advertising signs, Reduction of the required car parking to zero; Physical and strategic context; Net community benefit.

Tanoa Investments Pty Ltd v Mornington Peninsula SC [2020] VCAT 808
Section 77 of the Planning and Environment Act 1987; VicSmart Application; Mornington Peninsula Planning Scheme; General Residential Zone and Design and Development Overlay; proposed above ground swimming pool, deck and front fence; issue of character and streetscape.

Planning & Design Pty Ltd v Whittlesea CC [2020] VCAT 807
Section 77 of the Planning and Environment Act 1987; Whittlesea Planning Scheme, Activity Centre Zone; proposed medium density town house development; policy position, design response to neighbourhood character.

Alderette v Greater Bendigo CC [2020] VCAT 835
Construction of four dwellings on a lot, four lot subdivision and creation of an easement. Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.

Pechlivanidis v Monash CC [2020] VCAT 753
Section 77 Planning and Environment Act 1987; Monash Planning Scheme; Residential Growth Zone; Monash National Employment Cluster, Three dwellings. No permit

K2K Investments Pty Ltd v Banyule CC [2020] VCAT 733
Section 77 of the Planning & Environment Act 1987; Banyule Planning Scheme; General Residential Zone Schedule 1; Vegetation Protection Overlay Schedule 5; Development Contributions Plan Overlay Schedule 1; Three storey development including 10 dwellings; Massing, Visual bulk, Scale; Siting; Secluded Open Space; Shading; Overlooking; Traffic and Parking; Landscaping opportunities; Repeat Appeals;

NSW

Britely Property Pty Ltd v Randwick City Council [2020] NSWLEC 1367
PROCEDURE – application to re-open by Applicants to adduce evidence and make further submission on provision of on-site car parking – motion dismissed

Calderwood v Department of Planning, Industry and Environment; Calderwood v Campbelltown City Council; Department of Planning, Industry & Environment v City of Ryde [2020] NSWCATAD 200
GOVERNMENT INFORMATION- Combustible [Flammable] Cladding Register- disclosure of addresses of buildings on Register- agency can rely on additional factors in Table negative to disclosure other than those referred to in access decision-denial of access affirmed

Kohler Bros Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1364
APPEAL – development application – boarding house – whether development can be refused on the basis of parking – whether development can be refused on the basis of landscaped area – whether the design is compatible with the character of the local area – adequacy of setbacks

Thompson Health Care Pty Limited v Ku-ring-gai Council [2020] NSWLEC 1363
DEVELOPMENT APPLICATION– seniors housing development – residential care facility – breach of three development standards in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – neighbour objections

Sherbrook Group Pty Ltd v Hornsby Shire Council [2020] NSWLEC 1359
DEVELOPMENT APPLICATION – multi-dwelling development – lot amalgamation – amenity – character – accessibility 

Wright v Woollahra Municipal Council [2020] NSWLEC 1357
DEVELOPMENT APPLICATION – alterations and additions to a building identified as contributory to a heritage conservation area – detrimental impact on the heritage significance of the heritage conservation area

Liverpool City Council v Tirnova [2020] NSWLEC 110
CONTEMPT - orders made in Class 4 proceedings requiring removal of unauthorised development on flood-prone land - orders required removal of masonry front fence (Order (3)) and removal of substantial additions to dwelling house (Order (5)) - three months allowed for compliance with Order (3) and 12 months for compliance with Order (5) - single rolled-up charge laid by Council for non-compliance with Orders (3) and (5) - failure to achieve full compliance with Order (3) within the time allowed by the order but significant compliance achieved - complete compliance with Order (3) achieved by commencement of contempt proceedings - limited compliance with Order (5) by the commencement of these contempt proceedings - consideration of circumstances of Respondent in assessment of appropriate starting penalty - discount for earliest reasonable acknowledgment of guilt - appropriate penalty before consideration of s 6 of the Fines Act 1996 matters found to be $12,000 - consideration of capacity to pay (s 6(a)) and other relevant personal circumstance (s 6(b)) mandates significant moderation of penalty to be imposed - respondent convicted of contempt and fined $3,000 COSTS - Council seeks its costs on the ordinary basis - part of time of hearing wasted as a consequence of Council having failed to provide proof that the orders had been brought to the Respondent’s attention - part of proceedings concerning Order (3) lacking in proper evidentiary foundation - excessive photocopying - provision of material to the Court but not to the Respondent - provision of unnecessary material to the Court - Council’s costs to be discounted to reflect inappropriate matters

LDC Opco Holding Company Pty Limited v North Sydney Council [2020] NSWLEC 1352
MODIFICATION APPLICATION – whether the application is substantially the same – State Environmental Planning Policy No 64 – Advertising and Signage – consistency with the character of the local area

Zoro Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1349
APPEAL – development control order – stop works order – development not carried out in accordance with construction certificate – risk of land slippage – how discretion should be exercised in the circumstances

Huajun Investments Pty Ltd v City of Canada Bay Council [2020] NSWLEC 108
COSTS - application for costs of complete Class 1 merit proceedings - Applicant in merit proceedings unsuccessful on jurisdictional as well as merit grounds - whether failure on jurisdictional grounds provided a basis for concluding that it was fair and reasonable to award costs to the opposing party who successfully pressed the jurisdictional grounds - Applicant on notice as a consequence of Court of Appeal proceedings of two of the jurisdictional grounds said to be bars to approval of the Applicant’s proposed development - basis for pursuing the merit appeal unarguable on two foreshadowed jurisdictional grounds - general costs application in Class 1 merit proceedings appropriately brought - fair and reasonable to Second Respondent its costs for the whole proceedings - Applicant to pay Second Respondent’s costs of the Class 1 proceedings
COSTS - application for costs thrown away by Second Respondent as a consequence of amendments to the proposed development that were not minor - Second Respondent took lead role before the Acting Registrar on the issue of whether the proposed amendments were minor - appropriate that the Second Respondent receive its costs thrown away as a consequence of those amendments
COSTS - costs of the costs application - costs ordinarily follow the event for costs applications in Class 1 merit proceedings - appropriate that the costs Applicant be awarded its costs of the costs application

Scully v Hornsby Shire Council [2020] NSWLEC 1347
DEVELOPMENT APPLICATION – Torrens title subdivision – stormwater infrastructure – tree protection – biodiversity conservation

Buman v Newcastle City Council [2020] NSWLEC 1321
DEVELOPMENT APPLICATION – extend of development for which consent is sought – characterisation of existing approvals – boarding house use – new buildings – compliance with development standards – compliance with car parking – compliance with amenity standards – extent of building code upgrade works required – timing of the consideration and assessment of building code upgrade works – appropriate conditions of consent – directions

The Owners – Strata Plan No 70871 v Turek [2020] NSWSC 1027
APPEALS — Appeal from NSW Civil and Administrative Tribunal Appeal Panel — application for leave — whether proceedings were required to be dismissed if commenced before Tribunal had power to make order sought
APPEALS — costs — special circumstances finding based on erroneous assessment of solicitor’s conduct

Sardi v Central Coast Council [2020] NSWLEC 1348
NOTICE OF MOTION – application to amend Respondent’s statement of facts and contentions – vacation of hearing dates – procedural fairness to Applicant – late identification of potentially contaminated material on subject site 

Coppock v Secretary, Department of Planning and Environment [2020] NSWCATOD 89
APPEAL – misconduct of local government councillor – disciplinary action by Departmental Chief Executive – preparation of departmental report

Modog Pty Ltd v North Sydney Council [2020] NSWLEC 1342
DEVELOPMENT APPLICATION – demolition of a heritage item and construction of a new dwelling – conflicting assessments of significance of the item – suitability of the replacement dwelling agreed – whether the demolition of the existing dwelling will have an unacceptable impact on the heritage significance

Kim v City of Ryde Council [2020] NSWLEC 1340
DEVELOPMENT APPLICATION – change of use – suitability of the site for the development – objectives of the B1 Neighbourhood Centre zone – weight given to resident submissions

Northern Beaches Council v Tolucy Pty Ltd [2020] NSWLEC 76
APPEAL - appeal against Commissioner’s judgment on questions of law (Grounds 1 to 4 - the bushfire grounds) - whether the Commissioner prejudged bushfire matters required to be considered by virtue of cl 27(2)(h) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) (Ground 1) - in the alternative, whether the Commissioner failed to consider relevant matters required by cl 27(2)(h) of the SEPP (Ground 2) - whether the Commissioner denied the Council procedural fairness by accepting bushfire evidence from the Company only and not giving the Council the opportunity to be heard concerning it (Ground 3) - whether the Commissioner failed to give reasons for granting approval despite insufficient evidence on bushfire issues (Ground 4) - Ground 1 upheld rendering it unnecessary to determine Ground 2 - Ground 3 not established - Ground 4 upheld APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 5) - whether the Commissioner failed to address relevant mandated matters concerning (i) access to facilities and services vis appropriate pedestrian and public transport facilities and (ii) failed to consider relevant contextual building design matters - (i) dealt with through subsequent ground - complaint in (ii) not established - Ground 5 rejected
APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 6) - whether the Commissioner erred in concluding he could be satisfied, on the basis of written evidence, that required services would be available to residents of the self-care units - consideration of what might constitute satisfactory written evidence - no error established - Ground 6 rejected
APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 7) - whether the Commissioner erred in concluding that required minibuses would be available from the time the first occupants of the development took up residence - meaning of words in a condition of consent that buses be available for “the life of the development” – “life of the development” can only commence with issuing of an occupation certificate - residents not permitted to occupy prior to such a certificate - buses therefore required to be available from time first residents take up occupation - Ground 7 rejected
APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 8) - whether the Commissioner adequately considered matters of character and contextual fit of the proposed development in its locality - whether the Commissioner inappropriately relied on the Site Compatibility Certificate in lieu of undertaking the assessment mandated by s 4.15 of the Environmental Planning and Assessment Act 1979 - no error disclosed - Ground 8 rejected
APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 9) - whether the Commissioner misapplied test in cl 26 of the SEPP - Commissioner’s conclusion based on acceptance of the evidence of the Respondent’s expert town planner on the underlying objective of the clause - evidence not challenged by Council’s expert - position consistent with the formulation of the underlying objective of the clause adopted the Senior Commissioner in an earlier case - this issue not pressed by Council in submissions to the Commissioner - Ground 9 rejected
APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 10) - whether the Commissioner erred in concluding that the specific provisions of cl 43 of the SEPP ousted the general provisions of cl 26 - both clauses capable of satisfaction - cl 4.6 process in Warringah Local Environmental Plan 2011 provides mechanism for seeking to avoid compliance with the general provisions - cl 26 not ousted - Ground 10 upheld
REMITTER - should the appeal be remitted or should it be dismissed - if remitted, should remitter be exclusionary - appeal should not be dismissed - appeal is against Commissioner’s decision to grant consent to proposed development - approach adopted by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 appropriate to be followed and matter remitted not dismissed - finding in Ground 1 warrants exclusionary remitter
COSTS - presumption that costs follow the event - Council successful in appeal but not on the majority of grounds pleaded - costs to follow the event unless Respondent seeks to be heard to propose some alternative costs order

Queensland

Mellish v Redland City Council [2020] QLC 31
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where the case was directed to Court Managed Expert Evidence – where the parties could not agree on questions to be included in the consolidated brief to certain experts – where the consolidated brief may include questions which are not agreed – where the relevance of certain questions was in dispute – whether that dispute should be resolved before the meetings of experts – where the Court decided the questions should not be included in the brief

Kings of Gifts (Qld) Pty Ltd v Redland City Council & Anor [2020] QPEC 42
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – PUBLIC INTEREST – where the appellant applied to the respondent for a material change of use permit to develop land for a service station with associated car wash facility, drive through restaurant and on-site effluent disposal irrigation area – where the land was in the Environmental Protection Zone and Open Space Zone of the Redlands Planning Scheme 2012 Version 4 – where the land was within the Bushland Living Precinct and the Greenspace Network in the Kinross Road Structure Plan Area in the Redlands Planning Scheme – where the proposed development complies with the ecological provisions of the Environmental Protection Zone Code and the Kinross Road Structure Plan Overlay Code – where the proposed development conflicts with the Redlands Planning Scheme by proposing to locate uses that are nominated as inconsistent uses in the zone and because the uses are not low-key in nature – where the proposed development complies with the planning rationale for limiting the uses to low-key uses – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval – whether there are sufficient grounds to justify approval
Planning Act 2016 Qld s 311; Sustainable Planning Act 2009 Qld s 314, s 324, s 326, s 493, s 495

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – PUBLIC INTEREST – where the appellant applied to the respondent for a material change of use permit to develop land for a service station, convenience store, take-away food premises and a fast food drive through premises – where the land was in the Detached Dwelling Domain and the Residential Choice Domain of the Gold Coast Planning Scheme 2003 – where the proposed use for fast food premises and take-away food premises conflict with the 2003 Planning Scheme and should be considered “undesirable or inappropriate” – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval – whether there are sufficient grounds to justify approval
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – CONSIDERATION OF WEIGHT TO BE GIVEN TO NEW PLANNING SCHEME – where City Plan 2016 commenced after the development application was made – where the proposed service station use was not supported by City Plan 2016 – where s 495 of the Sustainable Planning Act 2009 gives a broad discretion to afford weight to a new planning scheme – whether conflict with City Plan 2016 should be given determinative weight Planning Act 2016 Qld s 311; Sustainable Planning Act 2009 Qld s 311, s 314, s 324, s 326, s 493, s 495 

Donovon v Brisbane City Council & Ors (No 2) [2020] QPEC 41
APPLICATION FOR COSTS – where development application brought by the respondent to the cost application was refused – where the second respondents to the development application now seek their costs of the hearing – where relevant provisions concerning costs are under the repealed Sustainable Planning Act 2009 (Qld) – where different statutory regime in respect of costs under the current Planning and Environment Court Act 2016 (Qld) – relevance of the introduction of a different costs regime under the current legislation.
Sustainable Planning Act 2009 Qld; Integrated Planning Act 1999 Qld; Planning and Environment Court Act 2016 Qld 

Legislation

Victoria

Victorian legislation can be accessed here www.legislation.vic.gov.au

NSW

Regulations and other miscellaneous instruments

Local Government (General) Amendment (Conduct) Regulation 2020
(2020-472) — published LW 14 August 2020

Environmental Planning and Assessment Amendment (Kensington and Kingsford Town Centres Development Consent Levies) Regulation 2020
(2020-470) — published LW 14 August 2020

Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020
(2020-475) — published LW 14 August 2020

Western City and Aerotropolis Authority Amendment (Operational Area) Regulation 2020
(2020-479) — published LW 14 August 2020

Environmental Planning Instruments

State Environmental Planning Policy Amendment (Western Gateway Sub-precinct) 2020
(2020-480) — published LW 13 August 2020

Bills introduced Non-Government – 07 August 2020

Environmental Planning and Assessment Amendment (Prohibition of Waste to Energy Incinerators) Bill 2020

Roads Amendment (Toll-free Period) Bill 2020

Bills revised following amendment in Committee

State Revenue Legislation Amendment (COVID-19 Housing Response) Bill 2020

Water Management Amendment (Transparency of Water Rights) Bill 2020

Bills passed by both Houses of Parliament – 07 August 2020

State Revenue Legislation Amendment (COVID-19 Housing Response) Bill 2020

Bills assented to

State Revenue Legislation Amendment (COVID-19 Housing Response) Act 2020 No 19 — Assented to 11 August 2020For the full text of Bills, and details on the passage of Bills, see Bills.

Queensland

Bills Updated

Environmental Protection and Other Legislation Amendment Bill 2020
Stage reached: 2nd reading to be moved on 3/08/2020

Acts Commencement

Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and perceived integrity and public accountability of State elections and ensure public confidence in State electoral and political processes
Commencement: (1) Chapter 2 commences as follows— (c) the following provisions commence on 1 July 2022—
(4) Chapter 5 commences as follows— (b)the remaining provisions of chapter 5 commence on 12 October 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.

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