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Inside track: Local Government

07 November 2018

#Government, #Local Government

Inside track: Local Government

In the media

When disaster strikes: Councils face volunteer challenges
State-wide databases and better-funded programs are needed to help councils respond to changes in how Australians volunteer around disaster. A major issue highlighted by the local government professionals was the “inadequate financial assistance to support volunteer programs (25 October 2018).  More...

Study shows supports can boost e-government use
Making online the default, providing technical support and emphasising the benefits of digital services are among the ways governments can achieve higher usage of their online services. The findings will be helpful to governments in overcoming low usage of online services, the researchers say (24 October 2018).  More...

Councils’ bid to make public spaces safer
As authorities confront violence against women in Australia, experts raise fresh doubts about the utility of CCTV, often a key tool for councils (22 October 2018).  More...

Towards zero: Councils aim to eliminate road deaths
A coalition of councils has pledged to bring road deaths down to zero in line with a campaign from state and federal governments. The pledge comes after the Commonwealth announced a road safety governance review (18 October 2018).  More...

Queensland

Palaszczuk Government looking to build on social housing success in Ipswich
The Palaszczuk Government is looking for partners to build new social housing in Ipswich – with Expressions of Interest (EOI) launched last month. Member for Ipswich West Jim Madden said the government’s plans for the next five years included 383 new social homes in the Ipswich region, with an investment of $103 million (25 October 2018).  More...

Call for grid of CBD cycle lanes as cyclists list 2850 problem sites
Brisbane needs a CBD bikeway grid with connected, separated bike lanes along streets to let thousands of cyclists move safely through the city’s busy CBD streets, Bicycle Queensland believes. The call comes after a recent survey of Brisbane cyclists of "safety hotspots" by Brisbane City Council identified 2850 problem sites (24 October 2018).  More...

Australian-first development tracker goes live
Queensland’s Sunshine Coast Council has launched a pioneering online application allowing ratepayers to follow local developments in real time. App allows residents to follow development applications in their suburb and surrounding areas (22 October 2018).  More...

Brisbane City Council forces sale of homes to recover overdue rates
Brisbane City Council is looking to recover more than $130,000 in unpaid rates by forcibly selling nine homes across the city. If a property has outstanding rates for more than three years the council can move to sell it (16 October 2018).  More...

Queensland ID scanners detect just one banned drinker from 26,000
Data obtained by the ABC shows Queensland's costly and time-consuming ID scanning program in nightlife hotspots are barely finding anyone trying to enter venues illegally (15 October 2018).  More...

New South Wales

New South Wales moves to boost recycling industry
The NSW Government has released its draft Circular Economic Policy, but the local government and waste and recycling sectors say the government needs to do more (22 October 2018).  More...

Recognising councils’ action on climate change
A council’s floating solar farm and a museum’s energy upgrade project are among local government climate change initiatives recognised in awards in NSW and the ACT (22 October 2018).  More...

In practice and courts

Councils make up successful grant recipients to commemorate Centenary of Armistice
More than 660 community projects – including from councils – commemorating the 100th anniversary of the Armistice of the First World War are set to share in more than $5.3 million under the Armistice Centenary Grants Program. This is the latest announcement of successful community projects awarded funding and details by state are available on the Minister’s website. Further announcements of successful grant recipients will be made over the coming weeks (26 October 2018).

Regional Growth Fund - Council projects proceed to assessment stage
Seven transformational council regional infrastructure projects are a step closer to becoming a reality with applicants asked to submit full business cases for approval under the Australian Government’s $272.2 million Regional Growth Fund. More information about the projects is available here (26 October 2018).  More...

Round 4 of the Mobile Black Spot Program now open
The Australian Government released the guidelines for Round 4 of the Mobile Black Spot Program and called for applications from mobile network operators and infrastructure providers, including local government, to the Round 4 competitive assessment process. Applications will be open until 10 December 2018. To apply and for more information click here (19 October 2018).

Disaster Recovery Funding Arrangements 2018
The Funding Arrangements will apply from 1 November 2018 in respect of eligible events that occur on or after that date. All eligible events occurring up to and including 31 October 2018 will be governed by the Natural Disaster Relief and Recovery Arrangements (NDRRA) Determination 2017. Under these arrangements, the state or territory government determines which areas receive assistance and what assistance is available to individuals and communities.  More...

Building Better Regions Fund: Round 3
Regional tourism and local jobs are front and centre of the latest round of the Building Better Regions Fund, with regional Australia set to share in $200 million for local infrastructure and community-building projects. Applications will close on 15 November 2018. For further information on eligibility and how to lodge an application, please click here.

Roads of Strategic Importance
The Australian Government will invest $3.5 billion over the next decade through the Roads of Strategic Importance initiative, ensuring key freight roads efficiently connect agricultural and mining regions to ports, airports and other transport hubs (19 October 2018).

National Local Roads and Transport Congress, 20-22 November 2018, Alice Springs, NT
The theme for the 2018 Congress is Connecting Transport Networks Now and into the Future. The key benefit of improved transport connectivity is its transformational effects - making cities and regions more accessible, more liveable and creating opportunities for economic development that could not otherwise exist. Registration is now open (26 October 2018).

Queensland

Local Government Bulletin 10/18 Commonwealth Policy for Land Affected by Unexploded Ordnance
This purpose of this Bulletin is to inform local governments about an amended Commonwealth policy for land affected by unexploded ordnance.  More...

LGAQ: The Queensland Plan is being reviewed
The Queensland Government is seeking feedback from community and business organisations around The Queensland Plan, Queenslander’s 30-year vision for the state. Members are invited to provide their feedback around whether, five years after its release, the vision outlined in The Queensland Plan is still appropriate. The Consultation Paper is available online here. Submissions close on 7 November 2018 (23 October 2018).

Proposed changes to the Economic Development Act
The Economic Development and Other Legislation Amendment (EDOLA) Bill 2018 was introduced into the Queensland Parliament on 19 September 2018 and has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee for detailed consideration. Amendments are proposed for more than eight Acts through the EDOLA Bill. A copy of the Bill and the Explanatory Notes is available from the Queensland Parliament website. The report is due on 8 November 2018.

Reminder: Building our Regions Queensland
Building our Regions is a $445 million targeted regional infrastructure program for local government projects. To date, Building our Regions has allocated $225 million across 174 projects. From the expressions of interest received, 53 projects have been shortlisted. Successful projects are expected to be announced in late 2018.

Reminder: New Councillor Code of Conduct
The Code of Conduct can be viewed here. From 3 December 2018 the Independent Assessor and the Office of the Independent Assessor (OIA) will assess and investigate councillor conduct complaints. 

QRA ready for disaster funding reform
To assist with the implementation, QRA has developed the Management and Reporting System (MARS), an online application designed to streamline the disaster funding submission process. Click here for details.

New South Wales 

Immediate changes to waste regulation – affects 29 councils from 25 October 2018
The EPA advised LGNSW and affected councils that material produced from Advanced Waste Treatment (AWT) facilities can no longer be used as a soil improver to land. This dramatically reduces the available market for AWT materials. The EPA has developed a support package to assist councils and the AWT industry affected by this change.  More...

LGNSW: Proposed changes to asbestos management
The Protection of the Environment Operations Amendment (Asbestos Waste) Bill was introduced into the NSW Parliament on 23 October. It seeks to double penalties for waste offences involving asbestos (such as land pollution) and to make the presence of asbestos a sentencing consideration The Bill does not address the risk of councils being unfairly penalised when they receive asbestos-contaminated waste at their facilities (either deliberately or accidentally) (24 October 2018).

New South Wales Public Lighting Code
The NSW Department of Planning and Environment’s updated Public Lighting Code will come into effect on 1 July 2019. The new code’s introduction coincides with the beginning of the next five-year revenue determination for NSW distributors. Until then the existing code, which is voluntary, continues to apply (26 October 2018).

New online registration for combustible cladding
Under new regulations, which commenced on 22 October 2018, property owners, including government authorities and councils, are required to check for external combustible cladding and register applicable buildings with the NSW Government via the Cladding Regulation Online Registration System (26 October 2018).

Inland Code commences 01 January 2019
The NSW Government has released an inland code, allowing one and two storey homes, home renovations and some farm buildings to be treated as complying development. The inland code applies to 69 local government areas and will commence on 1 January 2019, giving councils and industry time to understand the new requirements. Visit the DP&E website for more information.

Draft Urban Design for Regional NSW
The NSW Department of Planning and Environment has released a Draft Urban Design Guide for Regional NSW for comment. The guide outlines how the Government Architect of NSW’s Better Placed integrated design policy can be applied to the state’s regions. For further information visit the department’s website.

Cases

Nyoni v Shire of Kellerberrin (No 10) [2018] FCA 1576
DAMAGES – Where Full Court held first and second respondents liable for tort of misfeasance in public office – where Full Court remitted matter for assessment of damages – where applicant did not participate in damages hearing – general damages awarded in respect of reputational damage – aggravated damages awarded as conduct specifically designed to cause reputational harm – exemplary damages awarded in reference to Full Court’s finding of “targeted malice”.
Held: The CEO and the Shire should always strive to be exemplary government officials and entities. Here, they failed that test of public probity
(1) The first and second respondents pay the applicant damages in the total sum of $30,000, comprising $15,000 general damages, $5,000 aggravated damages and $10,000 exemplary damages, to be paid by them on a joint and several basis. 

Queensland

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2018] QIRC 132
Leave granted to the respondent to be represented by an engaged lawyer.
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICATION FOR LEGAL REPRESENTATION - Where application by respondent for grant of leave to be represented by an engaged lawyer - where application opposed - whether proceedings would be dealt with more efficiently if leave granted - whether discretion should be exercised to grant leave for respondent to be represented - leave granted.
Industrial Relations Act 2016 (Qld), s 530;  Local Government Act 2009;  Local Government Regulation 2012.

New South Wales

Cmunt v Snowy Monaro Regional Council [2018] NSWCA 237
Appeal dismissed with costs.
LAND & ENVIRONMENT – Where respondent issued appellants with notice preventing appellants from keeping more than two dogs on property – where respondent issued appellants with orders requiring removal of certain structures and advertisements – where respondent brought proceedings against appellants for failure to comply with notice and orders – where primary judge ordered compliance within 60 days – where appellants appealed primary judge’s decision – whether respondent had jurisdiction to issue notice and orders – whether respondent had standing to bring enforcement proceedings – whether evidence before primary judge supported the respondent’s claims – whether primary judge failed to consider appellants’ evidence.
Environmental Planning and Assessment Act 1979 (NSW), ss 121B, 121H, 123; Local Government Act 1993 (NSW); Local Government (Council Amalgamations).

Bolton v Stoltenberg [2018] NSWSC 1518
DEFAMATION – Imputations – whether imputations made out from matters complained of - councillors.
DEFAMATION – Publication – Facebook – where defamatory posts made on public Facebook page “Narri Leaks” – relevance of Facebook “views”, “hits” and “likes” to publication – whether Facebook posts had been read and downloaded – whether plaintiff could be identified in each defamatory Facebook post.
DEFAMATION – Defences – common law qualified privilege – whether the “Narri Leaks” Facebook page had a limited audience with a special interest –whether malice proved.
DEFAMATION – Defences – statutory qualified privilege – Defamation Act 2005 (NSW), s 30 –whether conduct of the defendants in publishing the matter was reasonable in the circumstances – whether failure to contact plaintiff fatal to defence – whether language used was excessive and the publication itself lacked reasonableness.
DEFAMATION - Damages – whether plaintiff entitled to aggravated damages.
DEFAMATION – Remedies – permanent injunction.
Local Government Act 1993 (NSW), s 349.

Karlos v Tweed Shire Council [2018] NSWLEC 164
MODIFICATION APPLICATION - Application to Council to modify 2003 development consent for commercial water extraction - modification seeks approval to use 19-metre articulated tankers in lieu of 6-metre rigid tankers - application refused by Council - appeal against refusal - leave granted during hearing to amend modification application to seek further modification by removal of conditions having the effect, relevantly, of imposing a maximum annual volumetric rate of extraction on water for commercial purposes.
SCOPE Of PERMITTED DEVELOPMENT - Development permitted by 2003 development consent specified in notice of determination by reference to Statement of Environmental Effects and plans lodged with development application in 2003 - the use specified in the 2003 consent not the use being carried out on the site in 2018 - nature of development being used for extraction in 2018 significantly different to that permitted by 2003 consent - no approvals for the changes in the operational development.
JURISDICTION - Statutory test that a development, if modified, be substantially the same as the development original approved - jurisdiction must be engaged prior to consideration of any merit matters - proposed modification must satisfy test qualitatively and quantitatively - separate consideration of each element of amended modification application - modification seeking approval to use 19-metre articulated tankers fails jurisdictional test on qualitative and quantitative bases - modification seeking removal of volumetric water extraction limit fails jurisdictional test on two quantitative bases- no jurisdiction to approve modification application - no basis to apply amber light approach - appeal dismissed. 

Baron Corporation Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1552
APPEAL – Development application – alterations and additions to an approved residential flat building for which development consent has not yet commenced – increase in floor space by in-filling of voids – contravention of the FSR development standard - increase in the number of units – no adverse impacts – increased intensity - whether consent should be granted notwithstanding contravention of FSR development standard – whether state of satisfaction required by cl 4.6(4)(a) has been reached. 

ADM Projects (Australia) Pty Ltd t/as ADM Architects v Wollongong City Council [2018] NSWLEC 1541
DEVELOPMENT APPLICATION - Partial demolition of existing building and the construction of new commercial building – consent orders – variation to Building Separation Standard – public objections. 

Dwyer v Sutherland Shire Council [2018] NSWLEC 1543
DEVELOPMENT APPLICATION - Two studios above detached garages – FSR – ancillary dwelling use – characterisation – bulk and scale. 

Legislation

Queensland

Bills

Economic Development and Other Legislation Amendment (EDOLA) Bill 2018
Introduced Queensland Parliament on 19 September 2018. Amendments are proposed for more than eight Acts through the EDOLA Bill. A copy of the Bill and the Explanatory Notes is available from the Queensland Parliament website. The report is due on 8 November 2018.

Subordinate legislation as made
No 158 Housing Legislation (Building Better Futures) Amendment (Postponement) Regulation 2018 – 19 October 2018 - The postponed law now automatically commences on 11 November 2019.

No 166 Proclamation—Housing Legislation (Building Better Futures) Amendment Act 2017 (commencing certain provisions) – 26 October 2018 - 1 February 2019 fixed as the commencement of the provisions of the Act stated in the schedule; and 24 section 151(2), to the extent it inserts the definitions condition report, prospective costs document, reinstatement work and village comparison document.

No 167 Waste Reduction and Recycling (Container Refund Scheme) Amendment Regulation 2018 – 26 October 2018. 

New South Wales

Bills introduced Government – 26 October
Fair Trading Legislation Amendment (Miscellaneous) Bill 2018
Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018
Retirement Villages Amendment Bill 2018

Non-Government – 26 October
Liquor Legislation Amendment (Repeal of Lock-out Laws) Bill 2018

Bills passed by both Houses of Parliament – 26 October
Planning Legislation Amendment (Greater Sydney Commission) Bill 2018

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

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

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

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

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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