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Inside track: Local Government

11 March 2020

#Local Government

Inside track: Local Government

Queensland local government elections: Making decisions in the caretaker period

Local governments in Queensland are squarely within the caretaker period for the local government elections to be held on 28 March 2020.

The caretaker period commenced on 22 February 2020 and will end when the declaration of the poll is published by the Electoral Commission of Queensland for each local government.

During this period, local governments must not make any major policy decision unless it is in the public interest and it has the approval of the Minister for Local Government.

A major policy decision means a decision to:

  • appoint, renumerate or terminate a chief executive officer of the local government
  • to enter into a contract greater than $200,000 or 1 per cent of the local government’s net rate and utility charges, whichever is greater
  • to establish an exception for obtaining quotes or tenders before entering into a contract, such as to establish a panel of pre-qualified suppliers or a panel of pre-approved suppliers
  • to make, amend or repeal a local law
  • to make, amend or repeal a local planning instrument under the Planning Act 2016
  • to approve a variation request or change a variation approval under the Planning Act 2016 in certain specific circumstances.

A major policy decision made during a caretaker period will be invalid unless the Minister’s approval has been sought before making that decision. A local government may also be liable for damages for contracts that are entered into during the caretaker period without the Minister’s approval. 

A local government must also not publish or distribute election material during the caretaker period. This includes anything able or intended to influence an elector about voting at the election or affecting the result of an election. For instance, a local government cannot publish a newsletter during the caretaker period that promotes or raises the profile of a councillor or councillors. 

It follows that not everything must stop during the caretaker period and that councils can still do many things provided that they do not fall within the definition of a major policy decision. For instance, councils can still:

  • appoint other staff, other than the chief executive officer
  • enter into contracts that are less than $200,000 or 1 per cent of the local government’s net rate and utility charges
  • continue with existing procurement processes (provided that no new contract is entered into that is greater than the legislated value)
  • continue to use existing pre-qualified supplier registers and preferred supplier arrangements
  • continue to enter into leases, licences and other property agreements (provided that it is not a contract equal to or less than the legislated value
  • continue to enforce local laws and other laws for which the Council has regulatory responsibility
  • continue to rely upon the delegated authority of the CEO provided that the exercise of that authority does not constitute a major policy decision.

Authors: Jenny Humphris, David Quinn & Gerard Timbs

In the media

Government seen as less trustworthy than business
Australians trust business more than they do government, according to a survey by marketing consultancy firm Edelman. Meanwhile a separate poll has found that 58 per cent of Australians believe there is too much red tape in local government and 66 per cent think councils should only involve themselves in the basics of roads, rates and rubbish (26 February 2020).  More...

NSW

NSW Government must invest more in recycled materials and re-use to drive down waste to landfill
Local Government NSW (LGNSW) has warned the NSW government that it must act if we are to maintain and improve kerbside recycling options and drive down the amount of waste going to landfill. “Councils are still waiting on the long-promised state waste strategy (27 February 2020).  More...

Deadline looms for council planning statements
The City of Newcastle is the latest NSW council to lay out its plans for the city over the next 20 years, with a vision of green spaces, ‘active transport’ and a booming night time economy. The state government announced in 2018 that every Council must submit a Local Strategic Planning Statement (LSPS) providing a blueprint for land use in the local area 26 February 2020).  More...

'It’s held Sydney back': Council reveals plan to raise CBD skyline by 100 metres
Planning controls endorsed by the City of Sydney will see the removal of a 235-metre cap on building height limits which were introduced to ensure buildings stayed below the Sydney Tower (25 February 2020).  More...

OLG NSW: Snowy Valleys and Cootamundra-Gundagai Regional Councils
Two elector proposals concerning Snowy Valleys Council and Cootamundra-Gundagai Regional Council  have been referred to the Local Government Boundaries Commission for formal assessment. The Boundaries Commission will now follow its own processes in accordance with the Local Government Act (25 February 2020).  More...

Digital twin’ opens new horizons in planning
The NSW government says a new open platform ‘digital twin’ will improve the design, planning and operation of infrastructure, precincts and communities while breaking down government silos. The tool has mapped Western Sydney covering Blue Mountains, Camden, Campbelltown, Fairfield, Hawkesbury, Liverpool, Penrith and Wollondilly councils (25 February 2020).  More...

Queensland

OIA calls for fair campaigns
The OIA is calling on election candidates, people who have made complaints to the OIA and the wider community not to misuse official complaints systems in the lead-up to the March election. The Independent Assessor Kathleen Florian said there were early signs that offices like the OIA could be used to score political points (28 February 2020).  More...

Coronavirus spread may force rethink of public toilet soap dispenser removal, expert says
The removal of soap dispensers from public toilets has stoked concerns local councils are washing their hands of a simple and effective way to help to halt the spread of coronavirus (28 February 2020).  More...

Explainer: What happened at Logan City Council
In April 2018, Logan City Council became the second Queensland council to be sacked by the state government (26 February 2020).  More...

Developer Aland Wins Approval for Four Towers in Southport
Sydney developer Aland will build four towers in Southport after gaining approval from the Gold Coast City Council.  Only one submission was made against the proposal relating to traffic impacts for access to a neighbouring property (26 February 2020).  More...

Council Refuses Ridong's $160m Gold Coast Development
Council has voted unanimously to refuse Ridong Group's $160 million development in Tallebudgera following backlash from the community (21 February 2020).  More...

Fire Fight continues
The LGAQ and the State Government this week joined in condemning the Commonwealth’s refusal to extend its $1 million in bushfire grants to all fire-affected Queensland councils (20 February 2020).  More...

Cement plant appeals Brisbane council rejection of 22-hour operation
Neilsen Group sought to extend the operation hours of its Windsor concrete plant in August, with the council rejecting the proposal in January (16 February 2020).  More...

Call for changes to allow planning courts to award costs in councils’ favour
Noosa Council will lobby the State Government for changes to the Planning Act so that courts can award costs in councils’ favour where those councils successfully defend their planning schemes. Noosa Council has also called on the LGAQ to take up the cause on behalf of all Queensland councils (21 February 2020).  More...

OIA releases data on investigations into Queensland councillors
A snapshot taken on 31 December 2019 showed the OIA had 124 active investigations, 27 were parked pending the outcome of criminal charges and a further 28 were on hold. The Independent Assessor Kathleen Florian said almost 300 investigations had been finalised, including those that were referred to the Councillor Conduct Tribunal (19 February 2020).  More...
See the latest OIA report, Insight,

Councillor watchdog launches more than one investigation a day in first year
The Office of the Independent Assessor has had a busy first year of operations investigating Queensland's councils (19 February 2020).  More...

Committee recommends law reform to reflect charity concerns
Proposed electoral law reform should be altered to support charities and not-for-profits in their efforts to participate in political debate, a state government committee says (17 February 2020).  More...

In practice and courts

ALGA: 2020 Resilient Awards open
Local Governments are invited to apply for the 2020 Resilient Australia Awards, before entries close on 18 May. The awards recognise outstanding contributions in six categories: community, business, local government, government, school and photography.  More...

AUSkey ends 27 March 2020
The Australian Taxation Office (ATO) is reminding councils that after Friday 27 March 2020, they will no longer be able to use AUSkey or Manage Australian Business Number (ABN) Connections to access the Australian Government’s online services.  More...

Administration of financial disclosure requirements under the Commonwealth Electoral Act
The objective of this audit is to examine the effectiveness of the Australian Electoral Commission’s (AEC's) management of financial disclosures required under Part XX of the Commonwealth Electoral Act 1918, including the extent to which the AEC is achieving accurate and complete financial disclosures.  More...

Local Council Poll 2020
This poll of 1,016 people was conducted by marketing research firm Dynata from 6 - 8 December  2019, and commissioned by the Institute of Public Affairs (February 2020).  More...

ALGA:  Councils’ feedback sought over flight paths
Airservices Australia wants to hear from local councils as it plans for the future of flight path design.
Design principles include safety elements, noise and community impact, environmental and operational factors. The agency held industry and public consultations earlier this year, and has extended its online survey until 9 March 2020 (28 February 2020).  More...
See Additional consultation 24 February 2020 - 9 March 2020

Have your say on the Draft Heavy Vehicle Productivity Plan 2020-2025
The NHVR has released the Draft Heavy Vehicle Productivity Plan 2020-2025.  A copy of the draft Heavy Vehicle Productivity Plan 2020-2025 can be found here.  The final plan will incorporate an action plan with performance measurements and targets and is expected to be released in mid-2020. The plan and the submission process is available on the NHVR website here. Submissions must be submitted by 13 March 2020.

Commonwealth Department of Communications and the Arts: Telecommunications in new developments review
In light of recent and upcoming changes in the provision of telecommunications in new developments, the Department is undertaking a review of the Telecommunications in New Developments (TIND) Policy, and has released a discussion paper Review of the 2015 TIND Policy, The Department is aiming to complete the review of the 2015 TIND Policy and make any necessary changes before 1 July 2020. 

Have your say: Bushfire Inquiries
House of Representatives Committee on Environment and Energy has announced an Inquiry into the efficacy of past and current vegetation and land management policy, practice and legislation and their effect on the intensity and frequency of bushfires and subsequent risk to property, life and the environment.  Submissions close on 31 March. A Senate Inquiry has also been established

NSW

NSW Local Strategic Planning Statements
Edward River Local Strategic Planning Statement 2020

View the current Community Participation Plans by Council
Albury City Council Community Participation Plan 2020
Bland Shire Council Community Participation Plan 2020

Office of Local Government Circulars
21/02/2020 20-04 Land use planning changes to assist communities recover from NSW bushfires

NSW Planning Department: Have your say

Current LEP Proposals from 19 February 2020

LGNSW: Environmental Protection - Authorised & Enforcement officers 
The NSW EPA is seeking feedback from local government on the draft Powers and Notices Guideline for Authorised Officers and Enforcement Officers. This guideline aims to help relevant officers to consistently and lawfully use their powers under the Protection of the Environment Operations Act 1997 and other environment protection legislation in NSW. 
Is the draft guideline and templates fit for purpose and meeting user needs? Share your views via a survey or by written submission to operational.guidance@epa.nsw.gov.au by 13 March 2020.

Queensland

LGAQ: Have your say: Walking tracks Standards revisions
The walking tracks standards under revision are important to councils as they are fundamental to the design and development of council-controlled walking tracks including pathways, tracks and trails. Feedback closes on 17 March 2020.  More...

CCC Investigations
28 February 2020 Mount Isa council employee charged with falsification of records
28 February 2020 Man extradited to face charges relating to Doomadgee council investigation

North Queensland Regional Plan
The first North Queensland Regional Plan has been finalised and will come into effect in March 2020. You can read an overview of the plan which includes five initial catalytic projects that have also been identified including renewable hydrogen, defence, agribusiness, advanced manufacturing and tourism. The region includes five local government areas: Burdekin, Charters Towers, Hinchinbrook, Palm Island and Townsville (February 2020)

PCA Submissions: mandatory provisions for Neighborhood Design and the Gold Coast City Plan Amendments
The Property Council supports the intent of the mandatory provisions but is concerned about when and how the provisions would be imposed by local government.  More...
.If you would like to view the Property Council’s latest submission on the mandatory provisions, please click here. (14 February 2020)

Brisbane City Council: Draft Central Park Masterplan
The draft plan is now out for public consultation following the release of five creative concepts from architecture and planning firms last year. The Victoria Park concept plan is now open to the public until April 28 on the Brisbane City Council’s website.

Land Restoration Fund—applications opening soon
The State Government has announced the Land Restoration Fund to support farmers, landowners and traditional Owners develop carbon farming projects. Applications for the 2020 investment round will open on 28 January 2020 and include a financial support package to allow applicants to obtain professional advice, including legal advice.  More information on the Land Restoration Fund and eligibility criteria can be found here.

Have your say: future of South Bank
The Palaszczuk Government is encouraging people to have their say on the future of the South Bank precinct, with the roll out of public consultation on the master plan. The master plan would build on the precinct’s iconic features, while harnessing new ideas. It is expected the master plan process will be completed by the end of 2020.  More...

LGAQ: Mandatory Asbestos Training for Council Officers
Authorised officers appointed by the local government CEO under the Public Health Act 2005, section 377 and empowered to issue a public health order are required to complete this training as a condition of asbestos related indemnity. Register your interest now for April workshops (03 February 2020).  More...

LGAQ: Review of the Strong and Sustainable Resource Communities Act 2017
The Office of the Coordinator-General is leading the review and will be engaging with councils and key stakeholders from the end of January to May 2020.  More...

LGAQ: Key events for Queensland councils in 2020
Events for March – October 2020 are outlined here. Keep an eye on the events page which will be updates as more events are confirmed in the calendar

Cases

NSW

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10
EVIDENCE: voir dire on admissibility of documentary evidence during trial — voir dire on access to documents produced under subpoena and notice to produce — at what stage the common law or the Evidence Act applies— whether documents protected by legal professional privilege — whether documents protected by without prejudice privilege — whether privileges waived or lost at common law or under the Evidence Act — privileges maintained.

Blacktown City Council v Concato (No 5) [2020] NSWSC 135
CIVIL PROCEDURE — costs — general rule that costs follow the event — ordinary to award costs to successful party — exception where issues are dominant and can be separated — adjust cost order based on time dedicated to unsuccessful

Byron Shire Council v Master Alchemy Pty Ltd [2020] NSWLEC 12
PROCEDURE: application for stay of Class 4 civil enforcement proceedings pending final determination of two Class 1 proceedings relating to the same development - application to consolidate Class 4 and Class 1 proceedings to be heard before a judge- applicable legal principles- no presumption that Class 4 matter should be stayed- matters dealt with identical subject-matter and raised almost identical legal and factual issues- similar expert evidence required for all sets of proceedings- savings in time and costs if matters heard concurrently- application for stay dismissed- application to hear all three sets of proceedings together upheld- order for joinder of relevant Minister to all three sets of proceedings- order for mediation to occur on site made.

Cox v Newcastle City Council [2020] NSWLEC 1081
MODIFICATION APPLICATION – Heritage Item – whether the works have a detrimental impact on the significance of the heritage item – appeal dismissed

Gardiner v Central Coast Council [2020] NSWLEC 1077
DEVELOPMENT APPLICATION — subdivision – flood affected land – whether there is a safe evacuation route – satisfaction of precondition to consent – whether the creation of an easement for evacuation is warranted.

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10
EVIDENCE: voir dire on admissibility of documentary evidence during trial — voir dire on access to documents produced under subpoena and notice to produce — at what stage the common law or the Evidence Act applies— whether documents protected by legal professional privilege — whether documents protected by without prejudice privilege — whether privileges waived or lost at common law or under the Evidence Act — privileges maintained

Hennock v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1070
APPEAL – building information certificate – unauthorised structures erected on land within a community title subdivision – structures erected outside of a building envelope contrary to by-law – building envelope can only be amended by unanimous resolution of the association and consent of the Council – whether the by-law is a jurisdictional bar relevant to notional development application – structures structurally sound and there is no issue concerning environmental or planning impacts

Qian v Willoughby City Council [2020] NSWLEC 1069
DEVELOPMENT APPLICATION – boarding house development – Affordable Rental Housing – Artarmon heritage conservation area – character of local area

Kasif v Georges River Council [2020] NSWLEC 1068
DEVELOPMENT APPLICATION – agreed isolated site – basement access available over adjoining site as a result of a condition on adjoining development – cl 4.6 applies as minimum lot size not achieved – whether design appropriate for context – area subject to new controls – whether communal open space should be provided

888 New Canterbury Road Pty Ltd v Inner West Council [2020] NSWLEC 1067
DEVELOPMENT APPLICATION – ground floor shopfront windows – signage – whether the proposed works have an adverse heritage impact   DEVELOPMENT CONTROL ORDER – sought removal of signage and advertising that required consent

Thinq Net Pty Limited v Woollahra Municipal Council [2020] NSWLEC 1063
DEVELOPMENT APPLICATION – residential apartment development – shop top housing – whether development is consistent with zone objectives – mixed use development

Legislation

NSW

Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020 (2020-64) — published LW 28 February 2020

Plantations and Reafforestation (Code) Amendment (Planning for Bush Fire Protection) Regulation 2020 (2020-65) — published LW 28 February 2020

Environmental Planning Instruments
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Bush Fire Response) (No 2) 2020 (2020-70) — published LW 28 February 2020
State Environmental Planning Policy Amendment (Planning for Bush Fire Protection) 2020 (2020-69) — published LW 28 February 2020

Queensland

Acts – 26 February 2020
No 6 Implementation of The Spit Master Plan Act 2020
No 9 Natural Resources and Other Legislation (GDA2020) Amendment Act 2020

Bills
Implementation of The Spit Master Plan Bill 2019
Introduced by: Hon C Dick MP on 26/11/2019
Stage reached: Passed with amendment on 19/02/2020

Electoral Legislation (Political Donations) Amendment Bill 2018
Stage reached: 2nd reading failed on 18/02/2020

Subordinate Legislation as made – 14 February 2020
No 10 Electoral and Other Legislation Amendment Regulation 2020
This Regulation omits the prescribed times for the disclosure period from the Electoral Regulation which are no longer required due to amendments to section 198 of the Electoral Act which removed the need for such times to be prescribed and excludes persons detained in custody from the class of electors able to make an electronically assisted vote for State elections and referendums given that section 115 of the Electoral Act has been amended to require detained electors to make a declaration vote.

Subordinate legislation as made – reminder

No 228 Proclamation—Local Government Electoral (Implementing Stage 2 of Belcarra) and Other Legislation Amendment Act 2019 (commencing remaining provisions)
This Proclamation fixes the following dates for the commencement of a number of remaining provisions: 30 March 2020. To improve transparency and public accountability of local government elections in line with State and Commonwealth electoral and governance frameworks  

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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Gerard Timbs

Gerard Timbs

Partner

Brisbane

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David Quinn

David Quinn

Special Counsel

Brisbane

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