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Inside track: Local Government

03 November 2020

#Local Government, #Planning, Environment & Sustainability, #Property & Real Estate, #Construction & Infrastructure

Published by:

Olivia Lawrence

Inside track: Local Government

How the Building and Development Certifiers Act affects council certifiers

The Building and Development Certifiers Act 2018 (Certifiers Act) has been in place since 1 July 2020. How have the changes affected council certifiers? 

The role of council certifiers generally

Despite the trend towards private certification, councils still play an important role in the certification of new buildings in NSW.

Council employees, and contractors engaged by councils, issue construction certificates and occupation certificates and act as the principal certifiers on a large portion of building sites across the State.

When private certification was first introduced in 1998, there was no requirement from employees of councils who carried out certification work to be registered, hold any particular qualifications or carry out any continuing professional development.

In 2002, the Campbell Inquiry recommended that private certifiers and local council certifiers be subject to the same licensing and audit regime.[1]

In 2008, the Building Professionals Act 2008 was amended to provide for the accreditation of council officers. Council officers carrying out building certification work, on behalf of councils, also had to be accredited by the Building Professionals Board under a modified scheme.[2]

The role of council certifiers under the Certifiers Act

Even though the council itself is not required to be registered to carry out certification work,[3] any employee of the council who carries out certification work, or anyone that the council engages to carry out certification work must be registered.[4]

Certification work includes the exercise of the function of a certifier (including a principal certifier) specified in section 6.5 of the Environmental Planning and Assessment Act 1979. Those functions include issuing construction certificates, carrying out inspections, issuing occupation certificates and subdivision works certificates. Certification work also includes determining applications for strata certificates and inspecting swimming pools under the Swimming Pools Act 1992.

Councils should be aware of their obligations under the Certifiers Act to ensure that certifiers working for them (or on their behalf) are registered and are covered by the required insurances. Councils should also be mindful of their obligations to notify the Commissioner for Fair Trading if circumstances change.

For a more in-depth discussion on these obligations, read our extended piece here.

Authors: Peter Holt & Olivia Lawrence

[1] Joint Select Committee on the Quality of Buildings (otherwise known as the Campbell Inquiry) Recommendation 12
[2] Second Reading Speech for the Building Professionals Amendment Bill 2008
[3] Section 5(2) of the Building and Development Certifiers Act 2018
[4] Section 112 of the Building and Development Certifiers Act 2018

In the media

A fad, not a solution: ‘city deals’ are pushing universities into high-rise buildings
Its department of infrastructure website describes them as “a genuine partnership between the three levels of government and the community to work towards a shared vision for productive and liveable cities”. So far Australia has had eight city deals, but the City Deal process is forcing universities to move into CBDs to get funds, whether it makes sense or not. (23 October 2020).  More...

Australian mayors commit to sustainable COVID economic recovery
Dozens of mayors and councillors from across Australia have put their names to a joint statement committing to economic recovery solutions that not only create jobs, but also tackle climate change (22 October 2020).  More...

Level of foreign interference highest within local government, ASIO boss says
Australian Security Intelligence Organisation director-general Mike Burgess has shone a light on some of the ways foreign governments may attempt to influence local politicians and members of the Australian intelligence community, including through “human targeting” (20 October 2020).  More...

Victoria

'No peace of mind': Rural landholder denied access to her bush property ahead of fire season
The owner of a bush property in regional Victoria fears for her block after the local council refused to give her a permit to travel from Melbourne to prepare it for bushfires (24 October 2020).  More...

Former Frankston City Council manager sentenced to imprisonment following IBAC investigation
Former Frankston City Council manager Andrew Williamson was sentenced in the County Court to imprisonment following IBAC’s investigation, Operation Topi, into allegations of improper procurement practices at Frankston City Council (22 October 2020).  More...

Councils welcome temporary changes to state planning laws
The Municipal Association of Victoria  welcomes the Victorian Government’s decision to provide exemptions in the planning system to facilitate outdoor dining across the state. These applications often required councils to undertake lengthy processes that are normally appropriate but hamper the flexibility needed in these extraordinary circumstances (22 October 2020).  More...

Planning exemptions smooth the way for outdoor dining
The Victorian Government is ensuring Melbourne’s hospitality sector can make a smooth transition to outdoor dining by streamlining planning approvals (21 October 2020).  More...

Melbourne lord mayor faces 'extraordinary' challenge as city wakes from COVID nightmare
After months of shutdowns affecting business, live sport, tourism and the arts, Melbourne's next lord mayor will have a crucial role in helping the Victorian capital to restore its reputation as a cultural and events hub (21 October 2020).  More...

NSW

Specialist support unit stands ready for bushfire season
A specialist support unit to co-ordinate council-to-council assistance has been re-established to help NSW communities prepare for the bushfire season. The Local Government Bushfire Recovery Support Group was instrumental in ensuring offers of help from non-bushfire affected councils reached communities devastated by the Black Summer bushfires in 2019-20 (20 October 2020).  More...

$250 million bushfire funding will enable councils to lead economic recovery
NSW’s peak body for councils has welcomed $250 million in State and Commonwealth government funding to help local communities left reeling from the economic devastation of last summer’s bushfires. 50 of the State’s 128 councils were natural disaster declared as a result of the bushfires (19 October 2020).  More...

Council completes major solar project
Blacktown City Council has installed almost 2,000 solar panels across 16 sites including aquatic centres, libraries and childcare centres in what it says is Australia’s largest rooftop solar power purchase agreement (19 October 2020).  More...

Alfresco dining launches in the rocks
Minister for Customer Service Victor Dominello said the NSW Government has successfully slashed red tape to allow 19 pubs, cafes and restaurants in The Rocks to expand onto footpaths and into the street. The Rocks is the first area to trial the initiative, with City of Sydney to follow and the rest of NSW soon after (16 October 2020).  More...

Queensland

Councils welcome funding commitments to create and support Queensland jobs
The LGAQ welcomed new funding commitments for job-creation programs spanning the state, as well as extra funding for rural mental health and other vital council initiatives. LGAQ and its member councils also announced the Bush Councils Compact, an historic new agreement to establish a new level of collaboration between the State and bush councils (20 October 2020).  More...

Council’s ‘game-changing’ sewage treatment
The biosolids processing plant at the Loganholme Wastewater Treatment Plant is using gasification to treat human waste. It’s the first time the process, known as gasification, has been incorporated into an Australian wastewater treatment plant (12 October 2020).  More...

In Practice and Courts

Victoria

Victoria Government COVID update
Regional councils have also been busy this week fielding thousands of enquiries from non-resident landowners, following the Premier's announcement last Sunday that council letters were required for travel to prepare properties for emergencies. Local Government Victoria has written to all councils this week letting them know about the new arrangements. Frequently asked questions (FAQ) are available on the Victorian Government coronavirus website. This information has also been provided to council CEOs and emergency management officers (22 October 2020).

City of Melbourne Annual Report 2019–20
A meeting of the Melbourne City Council will be held on 20 October 2020. At this meeting of Council, the Annual Report 2019–20 will be considered.   More...

Smart planning PPF translation update
Smart Planning continues to work with councils on their Planning Policy Framework (PPF) translations. To date, PPF translations have been gazetted for Murrindindi, French Island and Sandstone Island, Glenelg, Moonee Valley, Golden Plains, Southern Grampians and Colac-Otway. The PPF translation project is time bound and all planning schemes must be translated by 30 June 2021. Information on preparing for your PPF translation is available on the Smart Planning website.

Last chance to stand for council
The City of Melbourne (Electoral) and Local Government (Electoral) Amendments Regulations 2020 came into operation on 2 September 2020 and end on 26 April 2021. The amendments to the Electoral Regulations apply to candidate nomination and scrutineer provisions as a result of the COVID-19 pandemic.

Outdoor eating and entertainment package business grants
Applications are now open for the $58 million Outdoor Eating and Entertainment Package. Grants of up to $5,000 are available to licensed and unlicensed hospitality businesses, including restaurants, cafes, pubs/taverns, bars, clubs and takeaway food venues. Applications close on 11 December 2020.   

Applications open for the licensed hospitality venue fund
Grants of up to $30,000 are available through the $251 million Licensed Hospitality Venue Fund program. The fund supports eligible liquor licensees with hospitality venues impacted by the restrictions put in place to slow the spread of coronavirus. Applications close on 23 November 2020. 

Community Road Safety Grants 
Grants of up to $30,000 are available through the Transport Accident Commission’s (TAC) Community Road Safety Grants program to help not-for-profit organisations and groups develop effective projects targeting local road safety issues. Applications closes 9 November.   

Coronavirus Support for Multicultural Seniors program
Up to $2,000 is available to multicultural seniors’ groups through the Coronavirus Support for Multicultural Seniors program. The funding can go towards IT equipment, programs to support multicultural seniors and provide the timely distribution of coronavirus information. Applications close 19 November. 

City of Melbourne: View all current tenders
See Tenders for more information on the tendering process and procurement policy, closed and awarded tenders. View all current tenders

NSW

EPA [Draft] Sampling Design Guidelines for sampling of contaminated land
The EPA encourages feedback from stakeholders on the updated draft guidelines to help improve the sampling design and analysis of potentially contaminated land in NSW. Stakeholders can have their say on the consultation website here. The consultation period will be open from 21 September until 8 November 2020.

50-Year Vision for Sydney's Open Space and Parklands [Draft] Discussion Paper
The NSW Minister for Planning and Public Spaces has announced the 50-Year Vision for Sydney’s Open Space and Parklands. The draft Vision will kickstart a community wide conversation about how our open and public spaces can grow with us. Read A 50-Year Vision for Sydney’s Open Space and Parklands: A Discussion Paper and Complete the survey

Queensland

DLGRMA: New documents finalised to support changes to legislation commencing on 12 October 2020:
Model meeting procedures (mandatory minimum procedures)
Best-practice meeting standing orders
Code of conduct for councillor advisors in Queensland
Supporting information for councillor advisors
Sample councillor advisor role description
Supporting information for developing administrative support guidelines)
Example investigation policy

DLGRMA:  Local Government reform
Regulation changes to improve transparency through requirements for meeting agendas, minutes and registers of interests, the ability to appoint Councillor advisors and a new code of conduct for Councillors (in effect 12 October 2020). Read the updated information paper

Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020
The Queensland Government is delivering a rolling reform agenda to strengthen the transparency, accountability and integrity measures that apply to the system of local government and elections in Queensland.
Details of the changes - Local government reforms include:
new register of interest provisions (in effect 12 October 2020)
new and clarified conflict of interest requirements (in effect 12 October 2020)
a system for regulating political advisors (in effect 12 October 2020)
the requirement for councils to develop guidelines about councillor administration support staff (in effect 12 October 2020)
provisions relating to the dissolution of a local government and administrators (now in effect)
changes for filling councillor and mayor vacancies (in effect 12 October 2020).

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...

Open for consultation: Moreton Bay Regional economic development strategy
Moreton Bay Regional Council has developed a Regional Economic Development Strategy that is now open for community consultation.  The strategy provides a 20-year economic vision for Moreton Bay, and a blueprint for sustainable economic growth into the future.  To view the draft strategy and provide feedback, please click here.

Cases

Victoria

Harris v Victorian Electoral Commission [2020] VSC 676
ELECTIONS – Proposed payment by Liberal Party of Australia (Victorian Division) to National Party of Australia – Victoria – Whether proposed payment a ‘gift’ and a ‘political donation’ within Pt 12, Electoral Act 2002 (Vic) – Whether proposed payment would be made for ‘consideration in money or money’s worth’ – Whether proposed payment would be for inadequate consideration – Where parties ran joint tickets in three Legislative Council regions – Where public funding entitlement in respect of joint tickets paid to Liberal Party – Where Liberal Party proposed to pay one-third share of that entitlement to National Party – Effect of Coalition Agreement between Liberal Party and National Party – Electoral Act 2002 (Vic), ss 69A, 151, 206, 207F, 211, 212.
STATUTORY INTERPRETATION – Definitions of ‘gift’ and ‘political donation’ in s 206(1), Electoral Act 2002 (Vic) – Construction of ‘gift’ – Meaning of ‘consideration in money or money’s worth’ and ‘inadequate consideration’ – Scaffidi v Chief Executive Officer, Department of  Local Government  and Communities [2017] WASCA 222; (2017) 52 WAR 368 – Wheatley v State of New South Wales [2018] NSWCA 315.

J&M Management 2 Pty Ltd v Yarra Ranges SC [2020] VCAT 1174
Yarra Ranges Planning Scheme; development of land within a lower order activity centre; suitability of residential development within a strip shopping centre; amendment of a permit.

Hutchins v Melbourne CC [2020] VCAT 1180
Section 82 Planning and Environment Act 1987, Melbourne Planning Scheme, clause 54, wall on boundary, double storey building, solar access to north facing windows, overshadowing to existing secluded private open space. 

Kieser Training Pty Ltd v Banyule CC [2020] VCAT 1175
In accordance with the endorsed plans:  Business identification major promotion sign
In accordance with section 68 of the Planning and Environment Act 1987 and Clause 52.05 of the Banyule Planning Scheme, this permit will expire fifteen (15) years from the date of this permit.

Gagliano v Moonee Valley CC [2020] VCAT 1173
Moonee Valley Planning Scheme; alterations and additions in a Heritage Overlay; adding a driveway and carport to the frontage of a contributory dwelling; the Riverview Estate Precinct; traffic and carparking impacts from a crossover being places near to a laneway entrance.

NSW

Coffs Harbour City Council v Polglase [2020] NSWCA 265
1. Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.
NEGLIGENCE - public authorities - Council and Trust had care, control and management of jetty - young child fell through gap in jetty’s railing and sustained serious injury - history of young children falling through railing to Council’s knowledge - whether Council breached duty of care by failing to install additional railings or a mesh infill to prevent such falls - whether risk warning at jetty entrance meant no duty of care was owed - jetty built on Crown land and railing designed and constructed by State - State retained control of jetty for five years prior to handover to Council and Trust some nine years before plaintiff’s injury - whether State also liable as joint tortfeasor - whether grandparents walking with young grandson breached a duty of care - consideration of relationship between State, Council and Trust - consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach
COSTS - plaintiff succeeded against Council and Trust but failed against State and grandparents - trial judge declined to make Bullock or Sanderson order in respect of State’s and grandparents’ costs - whether error in failing to find that Council caused plaintiff to join other parties - non-acceptance of Calderbank letter - whether trial judge erred in making partial indemnity costs order
Local Government Act 1906 (NSW); Local Government Act 1919 (NSW), s 537; Local Government (Consequential Provisions) Act 1993 (NSW), ss 3, 4; Local Government (Shires) Act 1905 (NSW), s 17; Public Works Act 1912 (NSW), s 153 

Cousins v Transport for NSW [2020] NSWLEC 146
INTERIM INJUNCTION - proposed demolition of a bridge listed as an item of local heritage in a local environmental plan - whether the bridge constitutes a “relic” as defined in the Heritage Act 1977 (the Heritage Act) - imminent demolition of the bridge unless an interim injunction is issued - question as to whether or not the Applicant has a reasonably arguable case that demolition of the bridge would result in a breach of the Heritage Act - consideration of the basis upon which it was said that such a breach might arise - no reasonably arguable case established - injunction refused COSTS - costs in Class 4 proceedings usually follow the event - no discussion of costs during the course of the hearing - contingent costs order made requiring the unsuccessful Applicant to pay the First Respondent’s costs as agreed or assessed unless a party seeks to be heard to propose some alternative costs order
Heritage Act 1977, ss 4, 38, 132, 139, 153 and 154; Kyogle Local Environment Plan 2012, Sch 5

The Development & Environmental Professionals’ Association v Narrabri Shire Council [2020] NSWSC 1444
PRACTICE AND PROCEDURE – Application to strike out pleadings – Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 – Whether the Court lacks jurisdiction to declare contracts unfair or void under section 106 of the Industrial Relation Act – Application dismissed

Betop Holdings Pty Ltd v Blacktown City Council [2020] NSWLEC 1511
DEVELOPMENT APPLICATION – multi dwelling housing – whether road design is acceptable

Truland Development Pty Ltd v Georges River Council [2020] NSWLEC 1496
DEVELOPMENT APPLICATION – heritage item – proposed new apartments on the site of the heritage item and adjoining sites – conservation works – appropriate curtilage and setbacks – positive benefits of the proposal in balance with detrimental impacts – whether overall the proposed development impacts on the heritage significance of the item – variation sought to the maximum height standard – whether the variation request adequate and should be upheld – area experiencing redevelopment – compatibility with desired future character – setback variation to two street frontages – transition to low density development adjacent – appeal dismissed

38 Bond St Partnership v Randwick City Council [2020] NSWLEC 1491
DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – meaning of qualified designer under Environmental Planning and Assessment Regulation 2000 – cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 – statement by designer – habitable roof space – loss of views

Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1487
DEVELOPMENT APPEAL – boarding house – character and streetscape – site isolation – amenity of future lodgers – solar access to adjoining private open space – interpretation of a savings provision requiring a determination of a development application as if the plan had not commenced – orders

Jun v Northern Beaches Council [2020] NSWLEC 1483
DEVELOPMENT APPLICATION – demolition and construction of a three-storey dwelling house – proposed development contravenes the height of buildings and floor space ratio development standards – consideration of applicant’s written requests made pursuant to clause 4.6 of the Manly Local Environmental Plan 2013

Queensland

Independent Assessor v Councillor Conduct Tribunal & Anor [2020] QSC 316
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant applied to the first respondent pursuant to the Local Government Act 2009 (Qld) to make a determination in respect of alleged misconduct by the second respondent – where the applicant then purported to revoke and rescind its application – where the first respondent advised that it would proceed to determine the application – whether the first respondent had jurisdiction to hear and determine the application
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – GENERALLY – where the Local Government Act 2009 (Qld) allowed the applicant to apply to the first respondent to make a determination in respect of alleged misconduct by councillors – where s 24AA of the Acts Interpretation Act 1954 (Qld) provided that the power to make an instrument or decision includes a power to amend or repeal the decision – where the application of the Acts Interpretation Act 1954 (Qld) could be displaced by a contrary intention appearing in any act – whether the Local Government Act 2009 (Qld) displaced s 24AA of the Acts Interpretation Act 1954 (Qld)
Acts Interpretation Act 1954 Qld s 4, s 24AA; Local Government Act 2009 Qld s 150W

Realm Business Technology Pty Ltd as Tte v Redland City Council [2020] QLC 35
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – REVIEW OF DECISIONS – APPEALS – QUEENSLAND – where the appellant company owned a house and land on Russell Island – where the house was the principal place of residence of the company’s two directors – where the respondent council levied differential rates for residential land on Russell Island – where the council rated the land as category 2a, which was for land on which there was a residential structure that was not the registered owner’s principal place of residence – where the appellant contended that the land should have been rated as category 1a, which was for land on which there was a residential structure that was the registered owner’s principal place of residence – whether the land could be rated as category 1a given that the registered owner of the land was a company – where the appeal was dismissed.Land Court Act 2000 Qld s 27A

Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 225
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the Council appealed against the refusal of the primary judge on the appeal to the Planning and Environment Court to set aside the stormwater infrastructure charges and some of the traffic trunk infrastructure charges – where one of the grounds of appeal was that the legal approach of the primary judge was in error – where the Council succeeded on the appeal in the reinstatement of the traffic trunk infrastructure charges only and did not obtain leave in respect of the ground based on the legal approach of the primary judge – where considerable time in the hearing of the application for leave to appeal was spent considering the legal approach of the primary judge – whether the outcome of the appeal should be characterised as “contestable” – whether the Council should recover the costs for leave to appeal and the appeal 

Legislation

Victoria

Bills

Environment Protection Amendment (Refund on Bottles and Cans) Bill 2019 (Vic)
Date of second reading speech: 16 October 2020

NSW

Bills reminder
Statute Law (Miscellaneous Provisions) Bill 2020
|1.15 Electoral Funding Act 2018 No 20Schedule 2 Savings, transitional and other provisions - Schedule—Part 4  Provision consequent on postponement of September 2020 local government elections - postponed local government elections To avoid doubt, for the purposes of sections 28 and 31A of this Act, the local government elections to be held on 4 September 2021 are taken to be ordinary

Bills passed by both Houses of Parliament – 23 October 2020
Statute Law (Miscellaneous Provisions) Bill 2020

Bills introduced – 16 October 2020

Government
Local Land Services Amendment (Miscellaneous) Bill 2020

Non-Government
Local Government Amendment (Pecuniary Interests Disclosures) Bill 2020

Regulations and other miscellaneous instruments
Local Government (General) Amendment (Minimum Rates) Regulation 2020 (2020-624) — published LW 23 October 2020
Environmental Planning and Assessment Amendment (Sydney International Speedway) Order 2020 (2020-620) — published LW 16 October 2020
Environmental Planning and Assessment Amendment (Sydney Metro West) Order 2020 (2020-615) — published LW 16 October 2020
Liquor Amendment (COVID-19 and Managed Alcohol Program) Regulation 2020

Environmental Planning Instruments
State Environmental Planning Policy Amendment (Tutti Fruitti Cafe) 2020 (2020-630) — published LW 23 October 2020
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (The Rocks Outdoor Dining) 2020 (2020-611) — published LW 15 October 2020
State Environmental Planning Policy (Koala Habitat Protection) Amendment (Miscellaneous) 2020 (2020-618) — published LW 16 October 2020

Queensland

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.

Published by:

Olivia Lawrence

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