Australia: Local Government News – 04 June 2018

Last Updated: 9 June 2018
Article by Jenny Humphris, Joseph Monaghan and Peter Holt

Most Read Contributor in Australia, October 2018

In the media – National

Councils are "leading action" on climate change
Local governments are increasingly adopting corporate emissions reduction targets but are challenged by a lack of resourcing, report finds. Most of the councils (70 per cent) reported working in partnership with local community organisations on energy initiatives and over half (53 per cent) worked with their state's local government association (21 May 2018). More...

In the media – Queensland

Local government suspensions: fate of Ipswich Council in the balance
Ipswich Council has made a final submission to Queensland's Minister for Local Government against the entire council being stood down, saying its poor governance to sack "entirely innocent" persons (25 May 2018). More...

CCC widens its investigation into Gold Coast Mayor Tom Tate
The Crime and Corruption Commission investigates claims Cr Tate failed to declare possible conflicts of interest during council votes on a $1.3 billion Chinese-owned development (25 May 2018). More...

Statement from Local Government Minister Stirling Hinchliffe
His Excellency the Honourable Paul de Jersey, Governor of Queensland, granted assent to Local Government reform legislation passed by State Parliament on Thursday 17 May. The laws took effect from today and triggered the immediate suspension of four Mayors and one Councillor. Under section 165 of the Local Government Act, the Deputy Mayors in the affected councils will assume the roles and responsibilities of acting Mayor (21 May 2018). More...

Bespoke BMX park keeps kids active in town once known for its weight problem
Toowoomba council let cyclists construct a jump park, setting aside a bushland park to become the Stenner Street Skills Park and donated money to assist in its construction (20 May 2018). More...

Five councillors face suspension 'within days' under new new local government laws
Five Queensland mayors and councillors, including Logan Mayor Luke Smith and Ipswich Mayor Andrew Antoniolli, face immediate suspension under new laws designed to help restore confidence in local government (18 May 2018). More...

PCA: Reforms passed for Local Government conduct
The Queensland Parliament has passed the Local Government (Councillor Complaints) and Other Legislation Amendment Bill 2018. Amendments made to the Local Government Act 2009 and Public Service Act 2008 will have the effect of providing the State Government greater powers to suspend or dismiss a council or councillor where it is deemed in the public interest (17 May 2018). More...

Mayors, councillors face suspension as new laws passed in Qld Parliament
Logan Mayor Luke Smith and Ipswich Mayor Andrew Antoniolli are among five councillors now facing immediate suspension after the Queensland Government passes new laws on standards in local government (17 May 2018). More...

$1.95 million planning boost for innovative Queensland councils
Local councils with ideas to improve their planning systems will share in $1.95 million funding through the second round of the State Government's Innovation and Improvement Fund (17 May 2018). More...

Murray Darling deal welcomed
The LGAQ and Balonne Shire Council have welcomed the Federal Government's deal with Labor to ensure the Murray-Darling Basin Plan remains intact, with most recommendations from the Northern Basin review agreed on (16 May 2018). More...

Palaszczuk Government bolsters CCC's corruption fighting capability
The Palaszczuk Government will bolster Queensland's capability to tackle corruption in local government, today announcing $7.4 million additional funding for the State's Crime and Corruption Commission (15 May 2018). More...

Multi-million-dollar island development knocked back near Gladstone
As idyllic islands up and down the Great Barrier Reef sit in ruins, a regional Queensland council knocks back a multi-million-dollar resort development (17 May 2018). More...

Councils' coastal risk: study points to resource shortage
As Queensland councils spearhead programs to mitigate the impact of rising sea levels, new research warns some local authorities lack capacity to manage coastal risks (15 May 2018). More...

In the media – Victoria

Ratepayers concerned they will foot the bill for class action against Wodonga City Council
The costs associated with Wodonga City Council defending itself against a class action could ultimately fall to ratepayers (24 May 2018). More...

'Rotten apple' councillors face lengthy bans in Victoria under harassment laws shake-up
Misbehaving councillors and mayors found guilty of gross misconduct could be removed by the State Government or disqualified from running for up to eight years, under proposed changes to the local government act in Victoria (23 May 2018). More...

New Local Government Act to improve our councils
The Andrews Labor Government will modernise Victoria's local councils with new laws to lift standards of governance and make councillors more accountable to the ratepayers they represent (23 May 2018). More...

In the media – New South Wales

Any Sydney council can now apply to limit housing development
In a bid to quell community anger about overcrowding, all Sydney councils can now ask to be exempt from new building codes that make it easier for homes to be subdivided (18 May 2018). More...

PCA: Halting Sydney's housing supply will push up house prices
Property Council NSW Executive Director Jane Fitzgerald said abandoning the medium density "missing middle" housing code only weeks after it was released was a terrible outcome. Sensible reforms such as the medium density housing code will deliver more homes whilst still maintaining the existing local character of suburbs; it is an approach that will make homes more affordable while still providing Councils with the power to make planning decisions (16 May 2018). More...

In Practice and Courts

Now open: Round 2 Smart Cities and Suburbs Program
Councils are encouraged to apply for Round Two of the Government's Smart Cities and Suburbs Program, which commits $22 million to support local governments to solve local problems. For the full guidelines click here. For more information about the Smart Cities and Suburbs click here. Applications close on 2 July 2018. (17 May 2018).

OAIC Key dates

Australian Government Agencies Privacy Code
Commences 1 July 2018.

Australia 2021 Census – Have your say
The Australian Bureau of Statistics (ABS) is reviewing information in the 2021 Census of Population and Housing to ensure the data collected will meet Australia's needs to inform decisions made by governments, community organisations, businesses and individuals. A public consultation has been launched and councils are encouraged to make a submission before the 30 June closing date.

National General Assembly (NGA) of Local Government 2018
The National General Assembly (NGA) of Local Government is the peak annual event for local government, attracting in excess of 800 mayors and councillors each year. This year's event takes place at the National Convention Centre in Canberra from 17 – 20 June. Registrations are available online. A discussion paper is available to provide guidance to councils for the development of Motions for debate.

LG Professionals Australia's National Congress and Business Expo 2018
The LG Professionals Australia National Congress 2018 will be held in Canberra, 22-24 August, at the Canberra Rex Hotel. Get the details

Local Government Regulation & Compliance Conference
24 - 25 July 2018, Sydney - The national conference will examine strategic approaches to regulatory compliance. Strategies will be evaluated and successes measured. The forum will provide a platform to discuss how the sector as a whole can strive for consistency. High-level strategic themes will be tackled so that lessons can be applied across all compliance divisions within local government. Download the conference program and see who is speaking

Bills

Local Government Bill 2018
Date of second reading speech: 24 May 2018. The bill repeals and replaces the Local Government Act 1989 and will usher in landmark reforms, including:

  • Giving the Minister for Local Government the power to suspend individual councillors who pose a significant threat to the governance of a council for up to a year
  • Clearly defining sexual harassment under the Councillor Code of Conduct and introducing the power to remove councillors for serious sexual harassment
  • Allowing mayors serving two-year terms to be ousted from their roles, following a motion moved by at least three-quarters of all councillors in office
  • New measures to ensure service charges levied by Councils do not exceed the cost of those services.

Queensland

LGAQ: Don't miss out on $1.95 million of funding
Round 2 commenced with a new informal pre-application stage until 1 June 2018 to the Department of State Development, Infrastructure and Planning for consideration and feedback. Following the pre-application stage, round 2 will be open for formal submissions for eight weeks, closing 27 July 2018. Updated funding guidelines are applicable for round 2 and applications can be submitted online (25 May 2018).

LGAQ: Update: New local government legislation
The Belcarra Bill received royal assent on 21 May and has entered into force (except for the property developer donation provisions which will commence by proclamation at a date TBC). The Department has released Guidelines for your assistance. We break down the provisions contained in the new legislation (21 May 2018). More...

This Bill implements 5 out of the 31 recommendations in the Crime and Corruption Commission's (CCC) Belcarra Report (recommendations 20 and 23-26) and introduces additional dismissal and suspension powers. The LGAQ will continue to prosecute the Beyond Belcarra proposals endorsed by the Policy Executive with the Government following the passage of this legislation.
The Department of Local Government, Racing and Multicultural Affairs has issued two bulletins with guidelines to assist elected members comply with the new requirements, particularly in relation to management of conflicts of interest.

CC Prosecutions

Brisbane man charged with money laundering - 18 May 2018
A 61-year-old Eight Mile Plains man has been charged at the Brisbane City Watch house with money laundering following a Crime and Corruption Commission (CCC) investigation related to Ipswich City Council.

Victorian man charged with Official Corruption - 16 May 2018
A 60-year-old man from Victoria has been served with a Notice to Appear in Court following an ongoing Crime and Corruption Commission (CCC) investigation into an Ipswich City Council matter.

Kalinga man charged with forgery - 15 May 2018
A 47-year-old man from Kalinga has been served with a Notice to Appear in Court to face charges of forgery following a Crime and Corruption Commission (CCC) investigation into a Ipswich City Council matter.

OIC Queensland: Compliance audit report – Ipswich City Council
On Thursday, 17 May 2018, the Chair of the Legal Affairs and Community Safety parliamentary committee tabled our audit report of Ipswich City Council's compliance with the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld), making 12 recommendations (17 May 2018). More...

Local Laws

Queensland Government Gazette of 18 May 2018

City of Brisbane Act 2010
Gazettal of making on 8 May 2018 a local called the Animals Local Law 2017. The Law commences on 1 July 2018 and repeals the 2003 local law of the same name and the 2003 Subordinate Local Law.

Local Government Act 2009
Gazettal of Logan City Council (Making of Local Law) Notice (No. 1) 2018 relating to making on 15 May 2018 of Local Law No. 8 (Waste Management) 2018 and an associated amending local law to consolidate rubbish bin requirements.

Sustainable Planning Act 2009
Gazettal of an amendment to an item published in No 46 of the Gazette, published on 27 April 2018, at page 481 relating to Adoption of Amendment No.4 to Schedule 6, Sch 6.6 – Planning Scheme Policy No. 6 – Heritage Places by the Toowoomba Regional Council.

Review of the Product Stewardship Act 2011 (including the National Television and Computer Recycling Scheme)
The Department of Environment and Energy (Commonwealth) is seeking input from industry, governments and the general public to ensure the Product Stewardship Act 2011 is effective and delivering the best outcomes for business and the environment. The framework includes voluntary, co-regulatory and mandatory product stewardship schemes and is of significant relevance to local government. The LGAQ will be making a submission to the Department and is seeking your input into this matter by 8 June 2018. More...

Land Valuations Online
The new land valuation data for 2018 can be accessed online at www.qld.gov.au/landvaluation. More....

New South Wales

ICAC Prosecutions

Operation Dasha public inquiry into allegations concerning former Canterbury City Council starts Monday
The Operation Dasha investigation public inquiry into allegations concerning the former Canterbury City Council is adjourned until Tuesday, 12 June 2018.

More housing options for NSW: Low Rise Medium Density Housing Code
The new Code will allow one and two storey dual occupancies, manor houses and terraces to be built under fast-track complying development approval across NSW and also promotes good design for medium density housing. Low rise medium density housing as complying development is only allowed where medium density development is already permitted under a council's local environmental plan. The Medium Density Housing Code will commence on 6 July 2018.

Greenfield Housing Code
The changes start on 6 July 2018, the new Code will be included in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In essence; it is a simplifying of the development process and aligning the requirements for development across greenfield areas; the planning rules and the code are also presented in plain English to clearly explain planning rules. Note: There will be a three-year transitional period, where applicants can choose whether to use the Greenfield Code, or the new simplified Housing Code or Transitional Code (until 13 July 2019). More...

Victoria

EPA Review of Residential Noise Regulations
EPA Victoria is reviewing the Environment Protection (Residential Noise) Regulations 2008, due to expire on 14 October. EPA is proposing to renew the regulations, with two small changes to the rules regarding air conditioner noise. Councils, other stakeholders and the public are invited to provide feedback on this proposal. The written submissions period runs from 8 May to 18 June.

MAV: Draft State Environment Protection Policy (Waters) for comment
We have prepared a draft submission in response to the draft State Environment Protection Policy (Waters) – SEPP Waters – which is proposed to come into effect following the expiry of the current SEPP (Waters of Victoria). Issues relevant to councils include urban stormwater management, road run-off and onsite domestic wastewater management. A Members Brief will assist councils' understanding of the scope and issues. Council feedback on our proposed response is welcome by 13 June.

Product Stewardship Act Review:
The State has released a consultation paper for the review of the Product Stewardship Act 2011. The Act outlines ways to manage the environmental, health and safety impacts of products, in particular the impacts associated with the disposal of products and associated waste. We will prepare a submission in consultation with councils. The deadline is 29 June.

Cases

New South Wales

Briscoe-Hough v Tegg [2018] NSWCATAD 108
Local Government – election of councillors –irregularities in nomination forms – need to prove factual basis to find an irregularity – held no relief under s.329 of Local Government Act because failure to prove that result of the election was thereby uncertain – application dismissed as misconceived.

Amos v Central Coast Council [2018] NSWCATAD 101
ADMINISTRATIVE LAW – government information – forms of access – provision of inspection access only – whether provision of copy access would involve an infringement of copyright – whether Tribunal is entitled to consider fair dealing exception under copyright legislation when determining whether there would be a copyright infringement – whether it is agency's purpose or applicants' purpose which is relevant for application of fair dealing exception in context of access application.
Accordingly, I find that the Council copying the documents for the applicants would involve an infringement of copyright within s.72(2)(c) of the GIPA Act and that the Council is therefore entitled to provide access in a different way. For these reasons, the correct and preferable decision as to the form of access is that made by the Council (Administrative Decisions Review Act, s.63(1)).

DBT v DJG [2018] NSWCATAD 102
ADMINISTRATIVE REVIEW – privacy – conduct of agency – whether disclosure of personal information – insufficient evidence to make finding of fact.
This is an application under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The applicant, DBT, is a former employee of a Council in the Sydney region who seeks review of a decision that the Council did not breach the applicant's privacy by disclosing his personal information.
In late 2015 DBT resigned from his position on the staff of the Council. He states that his resignation came after a prolonged period of bullying and victimisation of him by senior staff of the Council.

Hardy v Ku-ring-gai Council [2018] NSWLEC 1245
PROCEDURE: application to reopen case to adduce an amended written request to vary a development standard; application granted; procedural jurisdictional issue only and no prejudice caused to the respondent.

Ingoal Acquisitions Pty Ltd v Burwood Council [2018] NSWLEC 1244
DEVELOPMENT APPLICATION: consent orders; residential flat building; adjacent to a local heritage item; contentions addressed by amendments to the proposal.

Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246
DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling; exceedance of the height of buildings development standard; impact on the heritage significance of the local heritage item; whether an "amber light" approach is appropriate.

Kingsland Developments Australia Pty Ltd v City of Parramatta Council [2018] NSWLEC 1241
DEVELOPMENT APPLICATION: part nine storey and part five storey shop top housing; Non- compliance with height development standard and whether cl.4.6 of local environmental plan is satisfied; Setbacks; Internal apartment amenity.

Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1243
APPEAL: construction certificate; subdivision; stormwater discharge; council reserve; consistency with development consent; flooding; roads works permit. Local Government Act 1993; Wingecarribee Local Environment Plan 2010.

Cachia v Parramatta City Council [2018] NSWLEC 78
PRACTICE AND PROCEDURE – summary dismissal of proceedings – Class 2 proceedings challenging validity of order made under s.124 of the Local Government Act 1993 – order the subject of the proceedings revoked by Respondent Council – Applicant declined to discontinue proceedings – basis for Court's jurisdiction no longer extant – irregularity of proceedings - proceedings dismissed pursuant to r 31.1 of the Land and Environment Court Act 1979 or, in the alternative, r.13.4 of the Uniform Civil Procedure Rules 2005. Local Government Act 1993 ss.7, 21, 124, 125, 153(1), 180.

Canal Aviv Pty Ltd v Roads and Maritime Services [2018] NSWLEC 52
COMPULSORY ACQUISITION - portion of landholding acquired for WestConnex project - agreement on value of acquired land - no agreement on impact on value of residue land - consideration of impacts on residue land - overall negative impact on residue land - extent of impact on value determined - compensation to be ordered MODEL LITIGANT POLICY - applicant complains respondent has not acted in accordance with its obligations imposed by the State's Model Litigant Policy - not a matter for the Court - alternative avenues for complaint lie in the hands of the applicant COMPULSORY ACQUISITION - claim for stamp duty for replacement property - Fitzpatrick basis for considered and rejected - consideration of decision in SNS - SNS provides no alternative basis for claim - stamp duty claim rejected COMPULSORY ACQUISITION - claim for reimbursement for land tax - claim made as either part of market value or as a disturbance claim pursuant to s.59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991 - neither statutory provision provides support for the claim - claim rejected.

Faseas v Coffs Harbour City Council [2018] NSWLEC 1249
DEVELOPMENT APPLICATION: whether time to appeal had lapsed; dual occupancy; minimum lot size; adequacy of information.

Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73
APPEAL - proposed additions and alterations to an aged care facility - application reliant on State Environmental Planning Policy (Housing for seniors and people with a disability) 2004 – s.56A appeal against decision of Commissioner to approve development - four grounds of appeal – Ground 1 alleges proposed development prohibited on the basis that State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 was not available to approve proposed development - Ground 1 not raised before the Commissioner - whether jurisdiction to raise on appeal - within jurisdiction - merit – Ground 1 not established - however, if Ground 1 established, proper course to remit the matter to a Commissioner as Ground 1 not necessarily a complete bar to the proposed development – Grounds 2 to 4 pleaded defects in Commissioner's reasoning to approve proposed development - no defects in Commissioner's approach - appeal dismissed COSTS - no reason why costs should not follow the event - Appellant ordered to pay Respondent's costs as agreed or assessed.

Ku-ring-gai Council v John David Chia (No 4) [2018] NSWLEC 75
PRACTICE AND PROCEDURE – interlocutory application – evidence – criminal trial – application by defendant to exclude evidence under s.138 of the Evidence Act – interview given by defendant against his objection – transcript of interview provided to investigator – transcript referenced by investigator whilst interviewing material witnesses – whether witnesses should be precluded from giving evidence – whether evidence improperly obtained STATUTORY INTERPRETATION – statute conferring the power to compulsorily interview – privilege against self-incrimination – whether fundamental right abrogated in the context of the statute – principles of construction – principle of legality – whether use of plain words or necessary implication.

Prilis v Inner West Council [2018] NSWLEC 1227
APPEAL – modification application – role of the Court in considering a modification application – modification sought change from shared facilities to self-contained boarding rooms – whether substantially the same – whether the change creates additional parking demand – whether a condition limiting occupancy numbers can be modified – relevance of change to contributions plan.

Kamenev v Woollahra Municipal Council (No 2) [2018] NSWLEC 1228
DEVELOPMENT APPLICATION: construction of a new dwelling; impacts on harbour views from neighbouring properties and the public domain; whether a current development consent for the site is a relevant matter for consideration.

Redman v McSwiney and Maclure [2018] NSWLEC 1230
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree has caused damage – whether further damage is likely – tree removal would be disproportionate.

Knight v Simmons [2018] NSWLEC 1231
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property including sewer pipes – terracotta sewer pipes – root identification – one of two trees has been removed – whether the remaining tree has caused damage – compensation sought for past pruning costs – compensation sought for sewer repair – reasonable attempt to reach agreement required at s.10(1) – notice of the application required at s.8 – self-represented litigant – could the respondents have prevented the damage.

Inner West Council v Prilis [2018] NSWLEC 72
ENVIRONMENTAL OFFENCES: Use of land without consent – plea of guilty – sentencing principles – environmental harm – aggravating and mitigating factors – agreement to pay costs, but amount not settled – fine proposed.

Legislation

Queensland

Bills Updated

Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill
Stage reached: Consideration in detail on 16/05/2018 royal assent 21/05/2018 and has entered into force (except for the property developer donation provisions which will commence by proclamation at a date TBC).

Ministerial and Other Office Holder Staff and Other Legislation Amendment Bill 2018
Introduced on 15/05/2018 Stage reached: Referred to Committee on 15/05/2018.

Electoral Legislation (Political Donations) Amendment Bill 2018
Introduced on 16/05/2018 Stage reached: Referred to Committee on 16/05/2018.

Local Government (Councillor Complaints) and Other Legislation Amendment Bill 2018
Stage reached: Consideration in detail on 16/05/2018; Assent 17/05/2018.

Queensland Parliament has passed the Bill (17/05/2018) aimed at providing a streamlined system for making, investigating and determining complaints about councillor conduct. Amendments made to the Local Government Act 2009 and Public Service Act 2008 will have the effect of providing the State Government greater powers to suspend or dismiss a council or councillor where it is deemed in the public interest. Among other changes, the Bill also:

  • Establishes an Independent Assessor to investigate and deal with conduct complaints related to councillors,
  • Reallocates the functions of the current Local Government Remuneration and Discipline Tribunal and the Regional Conduct Review Panels to a new Councillor Conduct Tribunal and Local Government Remuneration Commission,
  • Allows certain review rights for decisions about councillor conduct and judicial review of an administrative decision of a local government,
  • Mandates a code of conduct (made by the Minister) to set appropriate standards of behaviour for councillors in performing their functions ,
  • Provides greater protection for local government employees and councillors who make complaints against councillors.

The provisions of the Bill apply to all local governments other than Brisbane City Council.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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