Australia: Impact of council de-amalgamation on development applications and legal proceedings - Practical advice

The de-amalgamation process will invariably present some practical challenges for councils. Two key issues are the impact of de-amalgamation on development applications and legal proceedings.


The Local Government and Other Legislation Amendment Act 2013 (Qld) contains a series of amendments to the Sustainable Planning Act 2009 (Qld) (SPA) to transition development applications affected by de-amalgamation.

If a development application is made, but not decided, before the 1 January 2014 (Changeover Date) de-amalgamation date, which Council – the continuing regional council (Continuing Council), or the new shire Council (New Council) – will be the decision-maker for the application?

The answer depends on the whether the land to which the application relates is located in the Continuing or New Council's local government area.

  • The matter is straightforward for development applications for land located entirely within one local government area – whether it be a New Council's or a Continuing Council's. If so, the council responsible for the land has responsibility for the development application from the Changeover Date.
  • The situation is more complex where the land is located partly in both the Continuing Council's and New Council's local government areas. If so, the Continuing Council must decide, by the end of 2 January 2014 (the day after the Changeover Date), whether or not it will retain responsibility for the application. If the Continuing Council decides not to retain responsibility, then the New Council becomes responsible once it is notified of the Continuing Council's decision. In either case, the council that becomes responsible is required to consult with the other, in a way that it considers appropriate, before deciding the application. Unfortunately, the amendments to SPA do not clarify what consultation is "appropriate".

The amendments to SPA also contain a number of provisions aimed at assisting a New Council that becomes the decision-maker for an application. If the New Council is required to take a step within a certain period, and, at the date of becoming responsible for the application, has not taken that step, it receives an automatic 10 business day extension. For example, if the New Council would, on the date it becomes decision-maker, have 8 business days to make a decision, then it instead has 18 business days.

Further, Continuing Councils are required to assist a New Council that becomes decision-maker for an application. This includes providing copies of all necessary material to the New Council, and more generally, doing "all acts and things necessary or desirable to facilitate the transfer of the decision-maker function to the new local government." This should assist in ensuring that the transition is as smooth as possible.


Another key issue is which Council – the New Council or the Continuing Council – will be a party to existing and future legal proceedings.

For most proceedings,1 the issue is determined by whether the proceeding relates to the Continuing Council's or the New Council's local government area. Under the de-amalgamation regulations,2 if a proceeding relates to the New Council's local government area, but could have been started or continued by or against the Continuing Council before the Changeover Date, the proceeding must, nonetheless, be started or continued by or against the New Council.

However, for proceedings under SPA, the position is more complex.

  • For existing proceedings related to land wholly within the New Council's local government area, or decisions relating to the New Council's local government area, the New Council replaces the Continuing Council as a party.
  • For existing proceedings related to land partly within both the New Council's and the Continuing Council's local government areas, or decisions relating to both local government areas, the Continuing Council is required to ask the Minister to decide which Council is to be a party. Until the Minister makes this decision, the New Council can elect to join a proceeding to which the Continuing Council is a party. Given this, the Minister will need to make these decisions fairly quickly. Otherwise, a New Council may need to join many existing proceedings in order to protect its position, creating unnecessary and potentially significant legal costs.

A number of practical issues are likely to arise where a New Council is to replace a Continuing Council in a proceeding.

For example, in Planning and Environment Court proceedings, it is not clear whether the New Council should file and serve an Entry of Appearance, to put on record that it is replacing the Continuing Council and its address for service. If the New Council intends to use different solicitors, it would also need to file a Notice of Change of Solicitor.

While in many cases, it might be convenient for the New Council to continue using solicitors who acted for the Continuing Council, there may also be good reasons (such as cost considerations, or a desire to avoid possible conflicts) why the New Council may wish to engage different solicitors.

To avoid unnecessary disruptions to legal proceedings, and to ensure that new solicitors have sufficient time to obtain relevant documents from the previous solicitors and familiarise themselves with proceedings, it will be critical that transfer managers make arrangements for any change of solicitors well in advance of the Changeover Date.


1Apart from planning proceedings, considered in this article, it appears from the De-amalgamation Transfer Methodology published by the State (August 2013) that special transfer mechanisms will be adopted for workcover claims and workplace health and safety claims.

2Local Government (De-amalgamation Implementation) Regulation 2013 (Qld), s.48.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.