Australia: Inside track: Local Government - In the media, in practice and courts, cases and legislation

Last Updated: 2 August 2019
Most Read Contributor in Australia, August 2019

In the media

ALGA, LGAQ and MAV respond to Productivity Commission's national transport inquiry
The Australian Local Government Association has told a Productivity Commission inquiry that an Australian Government investment of $200m per annum would help local councils play their role in building a national transport network that boosts the economy, creates thousands of jobs, and handles future freight growth (19 July 2019). More...

Prime Minister unveils new regional parliamentary committee and statement
The Coalition will establish a House of Representatives Select Committee to examine the future of rural and regional Australia, and make it a permanent office within the Department of Prime Minister and Cabinet (19 July 2019). More...

Local government's child safety obligations
The Federal Government has reminded local councils of their obligations to ensure safe environments for children following the Royal Commission into Institutional Responses to Child Sexual Abuse (19 July 2019). More...

New AUS-SPEC Rural Roads specification
A new specification for rural roads has been released that aims to significantly improve the structural integrity, safety and performance of sealed and unsealed roads, thereby helping local councils better serve their communities (19 July 2019). More...

Ministers agree to national approach on Building Confidence report
Building Ministers from the federal, state and territory governments have agreed on a national approach to enacting recommendations in the 2018 Building Confidence report which aimed to improve compliance and enforcement systems for the building and construction industry. Two resolutions about cladding, which passed the National General Assembly last month, will shortly be considered by the ALGA Board - (57), by City of Melbourne and (57.1) by Blacktown City Council (NSW) (19 July 2019). More...

Fluoridation of Public Water Supplies
The TGA has clarified that state and territory governments will continue to be responsible for regulating fluoride in reticulated drinking water. Legislative amendments made on 11 July 2019 put an end to any uncertainties about regulatory responsibility by explicitly excluding fluoridated drinking water from the scope of Australia's therapeutic goods legislation (17 July 2019). More...

Public housing shifts to community sector
The supply of social housing has failed to keep pace with the growth of households in need of housing assistance, with government-provided housing increasingly being transferred to the community sector (18 July 2019). More...

Local councils vote for a referendum
Australia's councils have voted to demand a referendum giving local government constitutional recognition. The motion, calling for the government to initiate a referendum "at the earliest opportunity", was carried 201 votes to three at the National General Assembly of the Australian Local Government Association in Canberra (17 July 2019). More...

Public sector fraud cost Commonwealth $42m
The Commonwealth fraud investigations 2016-17 report published this month by the Australian Institute of Criminology says there has been an 86 per cent increase in internal Commonwealth fraud investigations, with the most common forms of internal fraud related to misuse of government credit cards, misuse of procurement payments and misuse of cash (12 July 2019). More...

Queensland

LGAQ: Making the Waste Levy work for councils
There has been considerable debate surrounded the introduction of the Queensland waste levy, it's amount, its timing, the levy zone and the impact on ratepayers (19 July 2019). More...

More than 900 councillor conduct complaints made in last financial year
A record 917 complaints were made about councillor conduct in the past financial year with the Office of the Independent Assessor receiving 824 complaints in just over six months, and 240 in the last quarter. This is a 466% increase in the number of complaints received and raised 1,200 separate issues or allegations (16 July 2019). More...

Professional indemnity insurance and private building certification update
In a win for Queensland councils, the risks, costs and workload for building certification will not be shifted onto local governments and steps have been taken to protect the private building certification industry in Queensland (18 July 2019). More...

Victoria

Cladding Taskforce report released
The Victorian Government this week announced a significant assistance package for rectification of buildings identified as higher-risk through the cladding audit. The Victorian Cladding Taskforce also released its final report. Included in its recommendations is the development of a protocol for relationships between the Victorian Building Authority and councils (18 July 2019). More...

Reiterating the roadmap to rescue our recycling system
In March the Municipal Association of Victoria released a Rescue Our Recycling Action Plan identifying solutions and actions needed by all three levels of government. At the Federal level, we need the introduction of mandatory product stewardship for all products that generate waste – to influence and encourage designers and manufacturers to create products that generate no or minimal waste (15 July 2019). More...

Fears Victorian plan to boost local council diversity will see fewer minorities elected
There are fears a Victorian Government plan to boost diversity in local council ranks will instead reduce the chances of women and minor parties being elected into local government (14 July 2019). More...

NSW

Why NSW needs a revised medium density housing code
The Low Rise Medium Density Housing Code has attracted criticism from those concerned with suburban over-development, amenity and the role of state government in local planning. The planning institute asserts that the application of the code should be able to be tailored based on the character, accessibility and heritage factors substantiated in a local housing strategy (09 July 2019). More...

NSW planning chief declares end to silo wars
The NSW planning system is in need of cultural reform, the new department head says. The new mega-cluster Mr Betts heads includes six ministers and a staff of 11,000, and covers a broad policy portfolio of environmental regulation, local government, primary industries, agriculture, fisheries, forestry, food, farms and energy (09 July 2019). More...

In Practice and Courts

Current Senate Inquiries - Legal and Constitutional Affairs Legislation Committee

Criminal Code Amendment (Agricultural Protection) Bill 2019 [Provisions]
The Bill would amend the Criminal Code Act 1995 to introduce two new offences relating to the use of a carriage service to incite trespass, property offences, or other offences on agricultural land. On 4 July 2019 the Senate referred the provisions of the Criminal Code Amendment (Agricultural Protection) Bill 2019 to the Legal and Constitutional Affairs Legislation Committee for inquiry. The deadline for submission to the inquiry was 31 July 2019. More...

Model Work Health and Safety Laws
Safe Work Australia is inviting councils to comment on the recommendations of the 2018 Review of the model Work Health and Safety (WHS) laws. The Consultation RIS was prepared in accordance with the Council of Australian Governments' Best Practice Regulation: A guide for ministerial councils and national standard setting bodies. More...

National Heavy Vehicle Law Review Issues Paper 3
The NTC has published information outlining its approach to the current review of National Heavy Vehicle Law. The NTC is inviting stakeholders to provide feedback between February 2019 and February 2020. The third issues paper – Easy Access to Suitable Routes - has now been published, focussing on making access for heavy vehicles to local road networks easier. Feedback on this paper closes on 16 August 2019.

National Local Roads and Transport Congress, 18-20 November 2019
This year's theme is 'breaking through for modern transport'. Topics to be covered include the future of transport and how local government can benefit, and an update on the state of the country's infrastructure by Infrastructure Australia CEO, Romily Madew. More...

Queensland

QLD councils - a free resource for a plastic free community
The Boomerang Alliance, through the Plastic Free Places program has developed a set of guidelines for councils to help transition communities to plastic free environments (19 July 2019). More...

LGAQ: Commitment to mine and quarry safety
Update for councils involved in quarry operations (16 July 2019). More...

State Archives consultation on record keeping - for the safety and wellbeing of children
Implementation of a new disposal authorisation and guideline will have implications for the management of records within councils (16 July 2019). More...

OIA's Insight
The OIA's Insight examines councillor conduct complaints and delivers on the Independent Assessor's commitment to transparent and accountable complaints management. As at 30 June, 79 investigations were on hold or pending outcomes in other jurisdictions (16 July 2019). More...

Commissioners corner: Conflicts between duties and dual responsibilities
An emerging issue is that of Council owned corporations or entities and potential conflicts between duties arising for councillors appointed to these entities (as Board Directors). This dual role situation can give rise to complex conflict of interest issues (12 July 2019). More...
NOTE: The OIC has recently developed a framework and meeting aid for multi-member decision-making bodies, including Boards and entities, to assist in identifying and managing conflicts. More...

Department of Transport and Main Roads Consultation: Draft transport noise corridor modelling
The new released draft transport noise corridors (TNCs) for state-controlled roads and railways now take into account additional factors known to influence the extent of noise impacts such as terrain and buildings. This means the new TNCs more accurately represent noise impacts on residential properties adjacent to state-controlled roads and railways.
Building and Plumbing Newsflash—Latest editions
No 566 Redland City Council designates transport noise corridors (11 July 2019)

Energy from Waste policy discussion paper: Have your say
It is expected that this policy will provide greater certainty for the waste sector and local council. Provide your feedback for the LGAQ submission by Monday 19th August 2019 (10 July 2019). More...

LGAQ: Local Government Legislation Amendment Regulation 2019 - Committee Report
The committee identified no issues regarding the subordinate legislation's consistency with FLPs, or its lawfulness. The explanatory notes comply with the part 4 requirements of the LSA. There are no changes to the legislation (10 July 2019). More...

Draft North West Queensland Economic Diversification Strategy: Consultation
The draft outlines a number of diversification initiatives to create jobs across the key economic drivers of resources, agriculture, tourism, and broader business and industry. More...

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows:
Part 2: extended from 29 May 2019 to 31 July 2019
Part 3a: extended from 27 August 2019 to 31 October 2019
More...

Victoria

Victoria Parliament Consultations

Inquiry into the Conduct of the 2018 Victorian State Election
The Committee is inviting people to submit their views on how the election was conducted and suggestions on how things could be improved. Issues to be examined include enrolling, being a candidate and voting. Submissions close on 30 August 2019. More...

Recycled Material in Roads
To assist councils in achieving sustainability in road design, the Office of Projects Victoria, NATSPEC, Sustainability Victoria, IPWEA Victoria, and the Civil Contractors Federation are reviewing engineering standards to increase the use of recycled materials in the construction of local roads. More...

Victorian Local Government Rating System Review
The Victorian Government is conducting a full review into the Victorian Local Government Rating System. The review will conclude in March 2020, when the Panel provides their recommendations to the Minister. More...
NSW

New ICAC public inquiry into lobbying to start 5 August
Commencing on Monday 5 August 2019, the ICAC will hold a public inquiry as part of a new investigation it is conducting into the regulation of lobbying, access and influence in NSW (Operation Eclipse) (18 July 2019). More...

The Low Rise Medium Density Housing Code has been deferred to allow for an independent review
The existing one-year deferral of the Low Rise Medium Density Housing Code in 49 council areas expired on 1 July 2019. The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) has been amended to extend this deferral for 45 councils for a further short period, until 31 October 2019, to allow for an independent review to be undertaken of the Code. More...

New dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. CPPs must be finalised and published on the ePlanning portal by 1 December 2019.

Plain English Guide to the Planning System
The NSW Department of Planning, Industry and Environment is developing a plain English guide to the planning system, in response to a recommendation in the Kaldas review. The department is seeking input on what should be covered in the guide, including frequently asked questions about the planning system and any specific needs you might have. Submit your feedback via email to the department (12 July 2019)

Cases

Queensland

In the making of the Rockhampton Regional Council Certified Agreement 2018 – Internal Employees [2019] QIRC 103
INDUSTRIAL LAW – COLLECTIVE BARGAINING – Application for certification of an agreement – Requirements for certification – Agreement certified

Ertech (Queensland) Pty Ltd v Brisbane City Council 12/07/2019
Allocation of costs

Ipswich City Council v BWP Management Limited & Anor (No 2) [2019] QLAC 2
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where s 57A of the Land Court Act 2000 provides the Land Appeal Court may order costs for an appeal as it considers appropriate, including the costs of the proceedings below – where the decision appealed against concerned the interpretation of the Ipswich City Council's budget – where the appellant succeeded – where the respondent in the appeal argued, inter alia, that the case involved novel circumstances, was arguable, and served a public interest – where the Court ordered that the respondent pay the appellant's costs below and on appeal. Land Court Act 2000 Qld s 57A

NSW

Wollongong City Council v Papadopoulos [2019] NSWCA 178
DAMAGES – breach of contract – calculation of economic loss – respondent operated kiosk on premises licensed from appellant – appellant breached licence agreement – no evidence of damages – primary judge used ATO "benchmarks" for restaurant businesses to derive likely lost profits – whether primary judge could take judicial notice of benchmarks – whether benchmarks capable of sustaining damages calculated by primary judge – whether nominal damages should be awarded or the matter remitted TRIAL – procedural fairness – court invited appellant's counsel to attend to make further submissions on damages after judgment reserved – no response from counsel – invitation repeated by court – appellant's counsel supplied written submission opposing further hearing – court proceeded to assess damages against appellant without further hearing – whether course adopted by court procedurally unfair

Affidavit under Part IV of the Trustee Act by Tenterfield Shire Council [2019] NSWSC 894
LAND LAW – property sold by Council under Ch 17 Pt 2 Div 5 of the Local Government Act 1993 (NSW) – net proceeds of sale paid into Court under Div 4 Pt 70 of Supreme Court Rules 1970 and Pt 4 of the Trustee Act 1925 (NSW) – entitlement to net proceeds of sale in Court LAND LAW – whether at time of sale, the Property was owned solely by Lucille Walsh, solely by the estate of the late Jeanette Walsh, or jointly by the estate of Jeanette and Lucille as tenants in common – whether joint tenancy between Jeanette and Lucille had been severed – whether prior to the sale of the Property, Mr Sean

Georges River Council v WK Strong Pty Limited;Georges River Council v Awada [2019] NSWLEC 97
OFFENCES AND PENALTIES – sentence – cutting trees without development consent – breaching condition of development consent to retain and protect trees – individual offender and his company – objective seriousness – low environmental harm – foreseeable risk of harm – practical measures to prevent harm – control over causes – offences of low objective seriousness – subjective circumstances of offenders – no prior convictions – prior good character – early guilty pleas – genuine remorse – assistance to authority – totality principle – adjustment of fines for multiple offences – s 10 order dismissing charge against individual offender – costs ordered

Landmark Group Australia Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1338
DEVELOPMENT AND MODIFICATION APPLICATIONS – mixed use development across three building envelopes approved by Stage 1 concept consent – detailed design seeks modification to approved concept consent including to conditions – Court approved Stage 1 on basis of s 34 agreement – whether design achieves design excellence – height non-compliance – adequacy of clause 4.6 – adjoining heritage item – solar access – natural cross ventilation – future amenity of apartments – neighbour objections

Alexandria Landfill Pty Ltd v Roads and Maritime Services;Boiling Pty Limited v Roads and Maritime Services (No 6) [2019] NSWLEC 98
COMPULSORY ACQUISITION – compensation payable for acquisition of two lots in St Peters – site used for landfilling and waste operations – hypothetical development concepts for highest and best use of Lot 2 – Discounted Cash Flow valuation methodology employed – claims for losses attributable to disturbance – claims for special value – claims based on agency – construction of s 59(1) Land Acquisition (Just Terms Compensation) Act.

Pluteus (No 81) Pty Ltd v O'Neil [2019] NSWSC 923
RESIDENTIAL TENANCIES – claim for possession – whether residents in possession pursuant to lease or licence – where notice of termination purportedly given – where residents in occupation of property for several months after notice of termination purportedly given – writ of possession granted

Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331
JOINDER – application for joinder – Crown's right to appear

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
ENVIRONMENTAL OFFENCE – pollution of waters – breach of environment protection license – plea of guilty – discharge of sewage effluent – sentencing principles – determination of the objective seriousness of the offence – extent of environmental harm – application of De Simoni principle – test for criminal negligence – whether criminally negligent – subjective circumstances of the defendant – prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs orders made

Kidd v Georges River Council [2019] NSWLEC 1296
DEVELOPMENT APPLICATION – subdivision of land – one lot into two Torrens title lots – is the Applicant's written request under cl 4.6 of Kogarah LEP well founded – is compliance with the standard unreasonable or unnecessary – whether the Applicant's environmental planning grounds are sufficient

Antoine Street Holdings Pty Ltd v Parramatta City Council [2019] NSWLEC 1317
DEVELOPMENT APPLICATION – childcare centre – retro fit of partly constructed shop top housing development – suitability of the site for a childcare centre – acoustic impacts on adjoining residential uses – location of childcare playroom above existing subfloor OSD system

Kennard v Fite [2019] NSWLEC 1327
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy

Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust v Inner West Council [2019] NSWLEC 1320
ENVIRONMENT AND PLANNING – consent - boarding house – modification application – power to grant modification – change in occupancy numbers – whether a correction of a minor error, misdescription or miscalculation – removal of a condition requiring a covenant limiting occupants by their income and limiting rent to be charged – whether removal of condition results in substantially the same development – whether condition required to be imposed by the State Environmental Planning Policy (Affordable Rental Housing) 2009 – whether removal will have adverse impact on access to affordable housing – whether removal will reduce social inclusion – whether there is an impact on car parking

Georges River Council v WK Strong Pty Limited;Georges River Council v Awada [2019] NSWLEC 97
OFFENCES AND PENALTIES – sentence – cutting trees without development consent – breaching condition of development consent to retain and protect trees – individual offender and his company – objective seriousness – low environmental harm – foreseeable risk of harm – practical measures to prevent harm – control over causes – offences of low objective seriousness – subjective circumstances of offenders – no prior convictions – prior good character – early guilty pleas – genuine remorse – assistance to authority – totality principle – adjustment of fines for multiple offences – s 10 order dismissing charge against individual offender – costs ordered

Legislation

Queensland

Subordinate legislation as made – 12 July 2019

No 134 Proclamation No. 1—Queensland Civil and Administrative Tribunal and Other Legislation Amendment Act 2019 (commencing certain provisions)



No 135 Uniform Civil Procedure (Referees) Amendment Rule 2019



No 136 Water (Border Rivers and Moonie and Condamine and Balonne) Amendment Regulation 2019



No 137 Nature Conservation (Protected Areas Management) (Woondum National Park) Amendment Regulation 2019



Victoria

Local Government Bill 2019 Consultation
The Local Government Bill 2019 will introduce a new, contemporary framework to support Victoria's councils and the communities they serve. The Local Government Bill Reform Paper describes why the new reforms are being proposed and how they will work.

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