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Inside track: Local Government

27 August 2019

#Local Government

Dr Joseph Monaghan

Published by Dr Joseph Monaghan, Ella Clements

Inside track: Local Government

Local Government Bill 2019 consultation

The Local Government Bill 2019 will introduce a new, contemporary framework to support and improve Victoria’s 79 councils.

The Victorian Government has said that it expects the new legislation will be presented to Parliament in 2019, intended to replace the Local Government Act 1989. If enacted, the Bill is expected to be rolled out in four stages, with the final stage implemented in 2021.

The proposed Bill builds on the reforms presented in the Local Government Bill 2018. 

The 2019 Bill proposes the following reforms:

Simplified voter franchise

It is proposed to simplify enrolments to vote in council elections. Under the current legislation the Victorian Electoral Commission creates the Municipal voters’ roll by combining the State electoral roll of voters and a list of ratepayer voters which is compiled by councils. A consequence is the duplication of voters on the Municipal voters’ roll, the correction of which is a resource demanding task.

The proposed Bill aims to simplify the process and bring council electoral rolls into line with state electoral rolls. Rather than being automatically enrolled to vote, owners and lessees of rateable property will be required to enrol in that municipality if they wish to vote. The proposed changes aim to address inefficiencies in the current system.

Standardised electoral structures

The 2019 Bill aims to ensure consistency in electoral structures. The current legislation allows councils to be constituted in one of five structural models. Under the new regime the option of multi-member wards will be removed, replaced by a model of single member wards (or unsubdivided wards where appropriate, for example, in sparsely populated, geographically large rural councils).

The new model aims to improve accountability and allow members of the community to be better positioned to seek and receive direct representation from their local councillors.

Training

New mandatory training requirements are proposed to be introduced for councillors and election candidates. Training for election candidates will focus on ensuring prospective councillors have a strong understanding of what is expected of councillors, including a greater awareness of the major strategic decision-making requirements of the role.
The aim of this amendment is to improve competency, skills and transparency.

Donation reform

The 2019 Bill will prohibit foreign donations (a donor will need to be an Australian citizen, resident or business with an ABN) and cap electoral campaign donations at $1000 for local government elections, or $4000 for the City of Melbourne. The gift disclosure threshold will be lowered from $500 to $250, except the City of Melbourne where the gift disclosure threshold will remain at $500. All councils will be required to keep a gift register.

These changes to the rules concerning electoral campaign donation arrangements aim to improve and ensure the integrity and transparency of the electoral campaign donation process.

Improved conduct

The amendments propose to introduce mandatory standards of councillor conduct, a consistent arbitration process and arbiter powers to impose sanctions.

The prescribed standards of conduct are aimed to guide council behaviour and provide clear and specific benchmarks for acceptable conduct. The standards of conduct will be developed in consultation with local government and the community. The standards will also guide arbiters who investigate councillors alleged to have beached the standards.

The current legislation requires councils to develop and manage their own internal arbitration process. The amendments propose to align all councils by introducing the Principal Councillor Conduct Registrar (PCCR) who will manage the internal arbitration process for allegations of low level misconduct.

The proposed internal resolution procedures include a requirement that the arbiter is chosen from a PCCR pre-approved list of qualified arbiters. The PCCR approved arbiter will be empowered to impose a limited scope of penalties.

Community accountability

The 2019 Bill introduces two new pathways that can lead to the disqualification of a councillor. Disqualification may occur where a councillor is found to be guilty of serious misconduct twice within an eight year period, or where a Commission of Inquiry makes a finding that a councillor has caused or contributed to a failure by the council to provide good governance or to comply with a governance direction. Disqualification is for a four year period.

Under the current legislation and the 2018 Bill, a Commission of Inquiry may be appointed by the Minister. The 2019 Bill allows a Commission of Inquiry to be initiated by the community. This is done by way of petition, which at least 25 per cent of people enrolled to vote, or entitled to be enrolled, in the municipal district must sign.

These changes aim to keep councillors accountable for serious conduct violations and give the community who elected the councillor stronger participation rights.

Authors: Joseph Monaghan & Ella Clements

In the media

Grow regions to help capital cities: RAI study
A new study by the Regional Australia Institute recommends a national awareness campaign to encourage migration to regional areas for cheaper housing and to reduce growing pains in the outer suburbs of major capitals (16 August 2019).  More...

Infrastructure report highlights need for extra investment and planning
Australia is sleepwalking its way towards becoming a nation of three megacities with regions which struggle with social and economic equity issues, the Planning Institute of Australia warns (13 August 2019).  More...

Infrastructure critical to city transformation: Audit
The Property Council of Australia welcomed the release of Infrastructure Australia’s 2019 Australian Infrastructure Audit and its recognition of the critical infrastructure needs of our growing cities, especially the big four of Sydney, Melbourne, Brisbane and Perth (13 August 2019).  More...

Homelessness 'duty to assist' law could force government to help those in crisis
Australian authorities are being urged to consider a new "duty to assist" law that would force governments to help homeless people find accommodation, amid warnings homelessness is spiralling out of control and funding is drying up (08 August 2019).  More...

Call for inquiry to probe road transport industry ‘crisis’
The inquiry, which would probe the commercial pressures on the sector from offshore giants like Amazon, as well as road fatalities, a decline in safety standards and working conditions and the scope of industry regulations including differences across states, is crucial to avert a crisis, transport workers say (08 August 2019).  More...

Aussie councils form nation-first climate alliance
Australian councils have launched a nation-first alliance to lobby the government for action on climate change. The league of councils will work together to encourage local, grassroots action on climate change by sharing resources and best practice examples of green initiatives while pushing for state and federal funding (05 August 2019).  More...

Victoria

More Financial Support For Rural And Regional Councils
Victoria’s rural and regional councils will get a much-needed funding boost, thanks to a change in the way Financial Assistance Grants are decided. Minister for Local Government Adem Somyurek has endorsed a recommendation by the Victoria Grants Commission’s to adjust the funding model for the Commonwealth Financial Assistance Grants Program (15 August 2019).  More...

MAV: Funding welcomed as first step to fix the recycling crisis
The MAV has welcomed the Victorian Government’s $6.6 million support package for councils over four months, as well as additional funding for the recycling industry to improve their sorting and processing of recycled materials. MAV also supports exploring the use of procurement targets for all government agencies to increase their use of Australian recycled content (13 August 2019).  More...

Local council rubbishes Victorian Government's 'barely tokenistic' recycling crisis package
Local councils are calling on the Victorian Government to create a statewide solution to the recycling crisis. Some councils have found alternative recycling processors, but many have no alternative but to send recycling into landfill (13 August 2019).  More...

Councils slam ‘fraught’ laws to oust councillors
Victorian councils have raised concerns over what they say is an attempt by the state government to rush through legislation that would would effectively give citizens the power to remove council staff (13 August 2019).  More...

MAV: Councils seek deferral of new Local Government Bill reforms
The MAV has called on the Victorian Government to defer the proposed reforms for 12-18 months to enable full examination of the issues including costs, community impacts and other unintended consequences (12 August 2019).  More...

65-year land dispute nears end with order for rates refund
It was spruiked as Victoria's own Gold Coast, but people who bought land along Ninety Mile Beach in the 1950s could never build on their blocks (07 August 2019).  More...

Cashback plan for collecting bottles and cans
The City of Melbourne has backed a campaign from the Municipal Association of Victoria calling for the introduction of a state-wide Container Deposit Scheme. The City of Melbourne has joined other Victorian Councils in calling for a the Victorian Government to introduce container deposit legislation into parliament (05 August 2019).  More...

NSW

One Year Reprieve for Council Emergency Services Levy
The NSW Government today announced it would fund the increase in the emergency services levy for NSW councils this financial year to meet the cost of new workers’ compensation for firefighters (13 August 2019).  More...

Trees tumble as developer tries to reactivate decades-old council approval
There are fears important wildlife habitat is being destroyed as a developer tries to enact a 1984 site approval on the New South Wales north coast (09 August 2019).  More...

Queensland

More than 900 councillor conduct complaints made in last financial year
A record 917 complaints were made about councillor conduct in the past financial year with the Office of the Independent Assessor receiving 824 complaints in just over six months, 240 in the last quarter. The Independent Assessor said there was a 466 per cent increase in the number of complaints received in the financial year which raised 1,200 separate issues or allegations (16 August 2019).  More...

Arts and cultural experiences exclusive to Regional Queensland
Regional Queenslanders can engage with arts and culture in their local communities with 59 local governments set to share in more than $4 million under the 2019-20 funding for the longstanding Regional Arts Development Fund (RADF) (15 August 2019).  More...

COAG leaders agree to ban the export of recyclable waste
At the recent COAG general meeting, COAG agreed Australia should establish a timeline to ban the export of waste plastic, paper, glass and tyres while building Australia's capacity to generate high value recycled commodities (12 August 2019).  More...

Former Ipswich mayor avoids jail for 'calculated and cunning' fraud
Former Ipswich mayor Andrew Antoniolli won't spend any time behind bars after being sentenced over 13 fraud-related offences, with his defence barrister saying he will "pay for this offending for the rest of his life (09 August 2019).  More...

Will it ever rain again?: More Queensland towns reeling in worst drought on record
As Stanthorpe faces running dry within months the local council discusses its options with the Queensland Government and gets set to impose heavy water restrictions (08 August 2019).  More...

In Practice and Courts

Australian Road Research Board (ARRB): Best Practice Guides
A series of technical guides are in development to assist councils in road design, construction and maintenance. The initial phase of this project involves a series of workshops designed for local government to be held across Australia, to ensure the best practice (08 August 2019).  More...

2019 Australian Infrastructure Audit
The Audit released this week highlights the need for a new wave of investment and reform to ensure Australia’s infrastructure continues to support our quality of life and economic productivity over the next 15 years.
Infrastructure Australia is calling for feedback and submissions in response to 136 challenges and 44 opportunities identified in the audit until 31 October 2019. Submissions identifying projects and initiatives for the 2020 Infrastructure Priority List are also open until 31 August.  More...

An assessment of Australia’s future infrastructure needs
Infrastructure Australia: 13 August 2019
The 2019 audit covers transport, energy, water, telecommunications and – for the first time – social infrastructure, and looks at the major challenges and opportunities facing Australia’s infrastructure over the next 15 years and beyond An assessment of Australia’s future infrastructure needs

National Local Roads and Transport Congress, 18-20 November 2019
This year’s theme is ‘breaking through for modern transport’. Topics to be covered include the future of transport and how local government can benefit, and an update on the state of the country’s infrastructure by Infrastructure Australia CEO, Romily Madew.  More...

NSW

The effect of lockout and last drinks laws on non-domestic assaults in Sydney: an update to March 2019
NSW Bureau of Crime Statistics and Research: 08 August 2019
This research set out to examine the long term impact of the 2014 NSW liquor law amendments on non-domestic assaults in Kings Cross, the Sydney CBD and surrounding areas. As in previous studies, a significant reduction in non-domestic assaults in the Kings Cross and Sydney CBD precincts was revealed.  More...

OLG Publications: Council Circulars
06/08/2019 19-16 New Property Acquisition Standards to apply immediately to all acquiring authorities in New South Wales, including all general purpose and county councils

The Low Rise Medium Density Housing Code has been deferred to allow for an independent review.
The existing one-year deferral of the Low Rise Medium Density Housing Code in 49 council areas is due to expire on 1 July 2019. The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) has been amended to extend this deferral for 45 councils for a further short period, until 31 October 2019, to allow for an independent review to be undertaken of the Code.  More...

New dates for 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.
CPPs must be finalised and published on the ePlanning portal by 1 December 2019

Biodiversity Conservation Trust (BCT) Guidelines: Conservation Agreements as Conditions of Consent
These relate to both conservation agreements that are included in a condition of consent for a development or agreed to as part of a planning proposal. These guidelines have been developed to provide a consistent approach for the BCT, development proponents, councils and planning authorities in delivering conservation agreements associated with development (15 August 2019).  More...

Consultation on Short-Term Rental Accommodation
The NSW Government is seeking feedback on its draft regulatory framework for short-term rental accommodation (STRA), including a state environmental planning policy and a mandatory code of conduct. The government is also considering the introduction of a new industry-led STRA property register - Submissions close 11 September.  More...

Boarding Houses Review
As part of its review of the Boarding Houses Act 2012, the NSW Government is seeking feedback on a discussion paper. Councils have responsibilities under the Boarding Houses Act to monitor and inspect boarding houses and ensure they meet certain safety and accommodation standards. It is also a matter for councils to decide what action to take regarding breaches identified during inspections, or where residences are suspected of operating as unregistered boarding houses - Submissions close 8 October 2019.  More...

Queensland

LGAQ: Apply now: Illegal Dumping Partnerships Program
Applications are now open for the Illegal Dumping Partnerships Program that provides $2 million in funding to councils over two years to monitor, act on and prevent illegal dumping activities. Applications close 11 September 2019. Apply now: Illegal Dumping Partnerships Program (12 August 2019).  More...

Local Government Bulletins

No 3: Submission of Local Government Financial Forecasts
This Bulletin is to advise local governments of the requirement to submit long term financial forecasts to the Queensland Treasury Corporation (QTC) and the Department of Local Government. To enable QTC to complete the ABA of local governments, every Local Government with existing QTC borrowings as at 30 June 2019, and also those seeking new borrowings in 2019–20, are required to submit their latest long-term financial forecasts electronically by 30 August 2019 (12 August 2019).  More...

Have your say: Energy from Waste Policy discussion paper
The Queensland Government has released a discussion paper outlining the proposed role for energy from waste, how it could support the implementation of the Waste Management and Resource Recovery Strategy and support the State’s transition to the principles underpinning the circular economy. Energy from waste involves converting waste materials into fuels, or energy in the form of electricity, heat, or cooling.
Queenslanders can have their say on the Energy from Waste Policy Discussion Paper. To make a submission, visit the Queensland Government website. Submissions close on 26 August 2019.

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows:
Part 2: extended from 29 May 2019 to 31 July 2019
Part 3a: extended from 27 August 2019 to 31 October 2019.  More...

$70 million for job-creating regional infrastructure projects
The Palaszczuk Government’s successful $365 million Building our Region’s (BoR) program has entered its next phase, with details of the $70 million Round 5 revealed. Councils have four weeks, from 5 August, to submit their expressions of interest via the Building our Regions portal.
Councils with shortlisted projects will then be invited to prepare and submit a business case with detailed supporting information for each project. Visit the Building our Regions webpage to learn more.  More...

LGAQ: Have your say: Model Code for Neighbourhood Design and proposed mandatory provisions
The consultation paper proposes that a range of components from the new Model Code be made mandatory for all new residential developments in Queensland. Please provide your thoughts on this before 26 August 2019.  More...

Cases

NSW

Primo Developments Sydney Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1380
DEVELOPMENT APPEAL – impact on state heritage item – heritage conservation area – residential apartment development – potential view loss

All in Project Management Pty Ltd v Waverley Council [2019] NSWLEC 1374
DEVELOPMENT APPLICATION – rooftop terrace – car stackers – vehicle manoeuvrability – onsite pedestrian safety – site suitability – partial consent

ABC Planning Pty Ltd v Cumberland Council [2019] NSWLEC 1278
DEVELOPMENT APPLICATION – residential apartment development – Auburn Town Centre – key sites development – site isolation – stormwater detention – street wall height

Noubia Pty Ltd v Coffs Harbour City Council [2019] NSWLEC 113
CIVIL ENFORCEMENT: declarations sought as to value of lots of land dedicated to or acquired by Council for public purposes – three lots of land transferred to Council pursuant to condition of development consent for a subdivision – determination of value of two of the lots of land – question of liability to pay compensation for the third – highest and best use – hypothetical development scenario – claims for stamp duty – undertaking of Council to pay compensation – construction of condition of development consent – alternative claims for relief discontinued

Café Great Pty Ltd v Oh [2019] NSWCATAP 203
Retail lease – extension of time to appeal – no error of law – no demonstrated basis for leave to appeal on alleged error of fact 

Chen v Cumberland Council [2019] NSWLEC 1375
DEVELOPMENT APPLICATION – boarding house – visual and physical character compatibility – amenity – parking – landscaping 

Visionary Investment Group Pty Ltd v Wollongong City Council (No 2) [2019] NSWLEC 1364
DEVELOPMENT APPLICATION – subdivision – community title – owner’s consent – golf course – contamination – streambank stabilisation – availability of water and wastewater infrastructure – assessment of off-site impacts – Grampian condition – modification of existing consent

The Bunker 2017 Pty Ltd v North Sydney Council [2019] NSWLEC 1365
DEVELOPMENT APPLICATION AND BUILDING INFORMATION CERTIFICATE APPLICATION – whether the consent of the owners corporation is required for the making of a Building Information Certificate application in respect of works within a lot in the strata plan – whether works that rely or encroach on common property require the consent of the owners corporation as the owner of land to which the development relates – whether the proposal for the use of a commercial lot as an office has an unacceptable impact on the amenity and security of the mixed-use building 

Abrams v The Council of the City of Sydney (No 5) [2019] NSWLEC 1368
DEVELOPMENT APPEAL– new residential flat building – remitted matter – variation to height control - variation to floor space ratio control – whether the variation request is well-founded – whether the objectives of the controls are met – sufficiency of environmental planning grounds

Legislation

Competition and Consumer (Price Inquiry—Water Markets in the Murray-Darling Basin) Direction 2019
08/08/2019 – This instrument requires the Australian Competition and Consumer Commission to hold a price inquiry into markets for tradeable water rights relating to water in the Murray-Darling Basin.

NSW

Regulations and other miscellaneous instruments
Civil Liability Regulation 2019 (2019-384) — published LW 16 August 2019
Proportionate liability under the Environmental Planning and Assessment Act 1979 – civil action for loss or damage arising out of or in connection with defective building work or defective subdivision work (as referred to in Division 6.6 of Part 6

Environmental Planning Instruments
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment (Heritage Conservation Areas Exemption) 2019 (2019-394) — published LW 16 August 2019

Queensland

Subordinate legislation as made – 16 August 2019
No 153 Environmental Protection (Air) Policy 2019
The purpose of this policy is to achieve the object of the Act in relation to the air environment. This regulation commences on 1 September 2019

No 154 Environmental Protection (Noise) Policy 2019
The purpose of this policy is to achieve the object of the Act in relation to the acoustic environment. This regulation commences on 1 September 2019

No 155 Environmental Protection Regulation 2019
This regulation commences on 1 September 2019

No 156 Environmental Protection (Water and Wetland Biodiversity) Policy 2019

Subordinate legislation as made – 09 August 2019

No 151 Nature Conservation (Wildlife Management) (Infrastructure) Amendment Regulation 2019
No 152 Building and Other Legislation Amendment Regulation 2019
This Regulation is made under the Building Act 1975 and the State Penalties Enforcement Act 1999. This Regulation permits private building certifiers to continue to perform their function, improves the administrative and regulatory functions of the QBCC in administering the combustible cladding checklist process, imposes penalties against registered owners for not taking required actions, and requires that fire engineers notify building owners and the QBCC when they reasonably believe a private building will require risk mitigation measures. This Regulation was notified on 9 August 2019

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.

Dr Joseph Monaghan

Published by Dr Joseph Monaghan, Ella Clements

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