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Inside track: Local Government

07 May 2019

#Local Government

Inside track: Local Government

In the media

Uniting to create technology partnerships
There is no doubt councils are masters at partnering with communities and a huge amount of effort goes into harnessing community voices. Councils should utilise this innate ‘partnering’ capability to deliver better operational outcomes for themselves (24 April 2019). More...

Megacities the new ‘global economic engines’
Australia needs to embrace urban density if the nation and its cities are to thrive, and boosting the population to 60 million could turn the country into an economic powerhouse, a population forum has heard (23 April 2019). More... 

Loophole used to install digital billboards
The upgrade of 1860 payphones across Sydney, Melbourne, Brisbane and Adelaide are causing Councils concerns. In March the City of Melbourne refused 81 development applications by JCDecaux to upgrade Telstra payphones including new 75 inch (190cm) digital advertising screens (18 April 2019). More...

Queensland's property developer donation ban is valid
The High Court has ruled Queensland laws banning property developers from donating to political parties and candidates are valid. The Palaszczuk Labor government passed laws last year, backdated until before the 2017 Queensland election, banning property developers from donating money to state and local government politicians, candidates and parties (17 April 2019). More...

NSW

Tamworth in energy-cutting smart city trial
Tamworth Council will head up Australia’s first fully integrated IoT smart city trial, using utility-monitoring technology with potentially “endless” benefits to lower the cost of energy (26 April 2019). More... 

'This changes everything': System displays new DAs in real-time
The public will now be able to view a development application less than a day after it is lodged with a local council, rather than having to wait six to 18 months. The government has been trialling a new online tool called ePlanning, which requires homeowners and developers to submit DAs online (22 April 2019). More...

Attacks on council rangers ‘widespread’
A series of violent attacks on council parking officers in western Sydney has sparked calls for tougher penalties, with council saying the latest incident is symptomatic of an industry-wide problem (18 April 2019). More...

Brothers who claimed 'exemption' from law fined $100,000 for contempt
Two brothers linked to a fringe Islamic group in Sydney have been convicted of contempt of court and fined more than $100,000 after claiming they were "exempt" from Australian law. Mustapha Kara-Ali, described as the Imam or spiritual leader of fringe Islamic group Diwan Al Dawla, told the court it was "religiously repugnant and obscene" to be ordered by Hawkesbury City Council to do or not do anything on the land, as it related to "a matter of religious practice" (18 April 2019). More...

Victoria

East Gippsland Shire Council
East Gippsland Shire Council has designed a prototype for e-waste storage and collection, designed by the council’s waste team in response to the impending ban on e-waste being disposed of to landfill from Monday 1 July (26 April 2019). More...

Rates review announced for Victorian councils
The ability of Victoria’s councils to charge rates that reflect local factors will be considered as part of a wider review of the local government rating system. Local Government minister Adem Somyurek says an independent panel will conduct the $112 million review, designed to ensure Victoria’s 79 councils “are held accountable to ratepayers” (18 April 2019). More...

Power to the people: Community-owned renewable energy turned on
A people-powered revolution is taking place in north-east Victoria with the region's first community-led energy network going live (14 April 2019). More... 

In Practice and Courts

NGA Early bird registrations
Don’t miss the early bird registration discount for this year’s National General Assembly of Local Government (NGA), which will be held from 16 to 19 June in Canberra. Early bird registrations are set to close on 10 May. More...

NSW 

ICAC Discussion Paper: Enhancing the democratic role of direct lobbying in NSW
The NSW ICAC is seeking public input as part of a new investigation it is conducting into the regulation of lobbying, access and influence in NSW (Operation Eclipse). The discussion paper is appended to an introductory paper, The regulation of lobbying access and influence in NSW: a chance to have your say, which also explains how to make a submission. The closing date for consultation is 24 May 2019. More...

IPART: Indexation of local infrastructure contribution rates
IPART is seeking stakeholder views on how councils should index contribution rates between the adoption of a local infrastructure contributions plan, and the revision of the contributions plan. In particular, we are seeking feedback on different approaches to indexing contribution rates to account for changing land costs. More...

Developer contributions plans – IPART fact sheet
The fact sheet explains how IPART proposes to assess whether local roads should be included in developer contributions plans and whether the apportionment of the road costs is reasonable. It’s an issue that’s relevant to all councils preparing contributions plans for IPART assessment, as well as developers and other stakeholders. Download the fact sheet from the IPART website (26 April 2019).

Community Participation Plan updated FAQs
The Environmental Planning and Assessment Act 1979 has been updated to make community participation central to the planning system. Supporting this objective is a new measure requiring all public authorities that have planning functions under the EP&A Act, including councils, to develop community participation plan (CPP). CPPs must be finalised and published on the ePlanning portal by 1 December 2019. The link to the FAQs is here.

Reminder: 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. There will be a number of other changes that will involve further design and consultation from mid to late 2018 outlined. 

Queensland

CCC: Current Prosecutions
The Crime and Corruption Commission (CCC) has determined it is in the public interest to advise it has not identified any corrupt conduct relating to the Gold Coast City Council’s (GCCC) decision to lease council-owned land at Bundall known as Black Swan Lake to the Gold Coast Turf Club and the decision to approve a development on the site. More...

Queensland Councillor social media community guideline
This social media community guideline contains the moderation rules for a councillor to post or link to on their social media sites. It aims to strike a balance between ensuring councillors use of social media is appropriate and open to positive, negative, or neutral electorate feedback, while also supporting councillors to protect themselves against unacceptable online behaviour (April 2019). More...

Safer Buildings combustible cladding checklist ticks over to Part 2
The Part 1 deadline elapsed on 29 March 2019, with some buildings required to continue to Part 2. Buildings that need further assessment following the conclusion of Part 1 will have until 29 May 2019 to file a building industry professional report to the QBCC. More...

Final consultation - Draft approved forms and templates for new plumbing reforms
The Department of Housing and Public Works has launched the final stage of public consultation on the new plumbing law reforms, including the draft approved forms which must be used by industry and local government from 1 July 2019 under the Plumbing and Drainage Act 2018 and the Plumbing and Drainage Regulation 2019 (17 April 2019). More... 

Consultation: Yeronga proposed development scheme for a mixed-use precinct in the Yeronga Priority Development Area (PDA).
The scheme establishes a planning framework to transform the site and sets out intended land uses, development criteria and infrastructure envisaged for the PDA. Submissions can be made between 1 April and 17 May. For further information on the Yeronga PDA. More...

LGAQ reminder: Have your say energy pricing proposals
Have your say on regulatory proposals submitted by Ergon Energy and Energex. The AER invites interested parties to make submissions on Energex's regulatory proposal by the close of business on 16 May 2019. More... 

The Premier’s Outback Events Program: Funding rounds 2019
Each application must be for unique submissions and events must be delivered on or before 31 December 2020. The deadline for round one application is 1 April 2019, with applicants notified in May 2019. More...

Cases

Darebin City Council [2019] FWCA 2587
Fair Work Act 2009 s.185—Enterprise agreement
Application for approval of the Darebin City Council Enterprise Agreement 2018 - 2022.

Spence v State of Queensland [2019] HCATrans 80
KIEFEL CJ: This special case was heard in Canberra on 12, 13, 14 and 15 March 2019 by a Court constituted by Justices Bell, Gageler, Keane, Nettle, Gordon, Edelman and me. By majority, the Court orders that the questions raised by the special case be answered as follows:
Are the amendments made to the Electoral Act 1992 (Qld) by part 3 of the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in part, to what extent) because they impermissibly burden the implied freedom of political communication on governmental and political matters, contrary to the Commonwealth Constitution? Answer: No.

Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438
1. Judgment for the defendant.
LIMITATION PERIODS – negligence – when causes of action first accrued – developer incurred material wasted expense, but only sued for lost profit – wasted expense incurred more than six years before proceedings commenced, at time when profit was prospective – significance of plaintiff confining claim to lost profits – significance of interest sought to be protected by common law – cause of action on first representation statute barred – defendant failed to establish plaintiff incurred material loss from second representation prior to six years before proceedings commenced – cause of action on second representation not statute-barred.
NEGLIGENCE – duty – novel duty of care – pure economic loss to developer from negligent misstatement by statutory authority to council – significance of assumption of responsibility, reliance and vulnerability – whether duty inconsistent with or sat ill with statutory obligations applicable to authority – no duty found in relation to second representation.
NEGLIGENCE – duty – scope of duty – first representation made directly by statutory authority to developer – whether representation went beyond question asked – whether representation outside scope of duty of care – first representation within scope of duty of care.
NEGLIGENCE – breach – whether at time representations were made there was extant proposal to widen or realign road – significance of historical documents – significance of failure to give testimonial evidence – significance of concession that proposal had at some stage been abandoned – breach made out.
NEGLIGENCE – causation – whether developer had established it would have acted differently had there been no breach – causation not established.
NEGLIGENCE – special statutory power – whether statutory authority was exercising special statutory power when responding to council – Civil Liability Act 2002 (NSW) s 43A considered – s 43A inapplicable.

NSW

FLDC Architects v City of Canada Bay Council [2019] NSWLEC 1188
DEVELOPMENT APPLICATION: child care facility – visual impact – overdevelopment.

Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87
PRACTICE AND PROCEDURE – joinder- where 3rd parties object to government agency disclosing information under Government Information (Public Access) Act 2009 – where 3rd parties not parties to first instance decision on jurisdiction – whether applicant for access appealed from first instance decision – whether 3rd parties should be joined to the appeal proceedings.

Tanous v Hunter’s Hill Council [2019] NSWLEC 1175
DEVELOPMENT APPLICATION: landscaped area and height non-compliance – cl 4.6 written request for variation – character – bulk and scale – driveway access.

Coronation (33 Shepherd St) Pty Ltd v Liverpool City Council [2019] NSWLEC 1170
DEVELOPMENT APPLICATION: apartment design guide – residential apartment development – design excellence – Liverpool city centre.

IPM Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1182
DEVELOPMENT APPLICATION: shop top housing development – whether the proposed development is compatible with the desired future character of the area – whether clause 4.4A of Leichhardt LEP 2013 applies – overlooking and overshadowing impacts.

Sixto Properties Pty Ltd v Waverley Council [2019] NSWLEC 1171
DEVELOPMENT APPLICATION: new attached dual occupancies – Torrens title subdivision – variation to minimum lot size – variation to floor space ratio – planning experts agree development warrants approval – appeal upheld.

Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177
DEVELOPMENT APPLICATION: New terraces proposed in the rear of a listed heritage item – whether the proposed terraces will have an adverse impact on the heritage significance of the item – whether the internal and street setbacks are acceptable – amenity impacts – whether the development exhibits design excellence.

Elanor Investors Limited v Sydney Zoo Pty Limited [2019] NSWLEC 1173
CIVIL PROCEDURE: Notices to Produce and Subpoenas – application to set aside.

Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168
DEVELOPMENT APPLICATION: oarding house; breach of LEP height control – whether cl 4.6 written request required –  isolated site –  consideration of local character –  design excellence –  requirements of a Plan of Management –  waste requirements –  gradient of basement ramp –  disputed conditions.

Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53
CONTEMPT: Disobedience of the Court’s orders that certain works carried out without necessary consent be demolished.

Saffioti v Kiama Municipal Council [2019] NSWLEC 57
APPEAL – appeal against Commissioner’s decision on questions of law – development application to enlarge, expand or intensify existing use – proposal to erect new dwelling and decommission existing dwelling – significant adverse impact on terrestrial biodiversity – uncertainty and inconsistency in applicant’s evidence – applicant requested Commissioner give amber light – Commissioner did not give amber light and refused development consent – whether denial of procedural fairness by not giving amber light – Commissioner found development breached DCP controls – whether denial of procedural fairness by not giving opportunity to provide alternative solutions to achieve objects of controls – LEP provision setting factual preconditions before consent can be granted – whether LEP provision derogated from incorporated provisions for existing use – whether misdirection as to derogation test – whether conflation of LEP provisions and DCP controls – error on question of law not established.

Hawkesbury City Council v Kara-Ali (No 3) [2019] NSWLEC 55
CONTEMPT: Disobedience of a series of Court orders – eventual pleas of guilty – contempt found to be contumacious – purging acknowledged by the Court – principle of totality – indemnity costs.

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 4) [2019] NSWLEC 56
COSTS – applicant unsuccessful in judicial review proceedings – whether proceedings brought in the public interest – whether departure from usual costs rule justified – applicant ordered to pay the costs of the first and second respondents.

Weber v Greater Hume Shire Council [2019] NSWCA 74
TORTS — negligence — duty of care — duty of care owed by operator of waste disposal tip — escape of fire – whether class to whom duty owed indeterminate TORTS — negligence — standard of care — whether Council exercising special statutory power under Civil Liability Act 2002 (NSW), s 43A TORTS — negligence — breach of duty — whether adequate precautions taken to prevent escape of fire – allocation of resources by local council — application of Civil Liability Act, s 42 — whether inaction of local council unreasonable — whether financial resources available to take precautions TORTS — negligence — causation — where multiple possible causes of fire — whether probable causes arising from breaches of duty were sufficient to establish causation — whether precautions would have prevented damage to the plaintiff.

Queensland

Alderton v Fraser Coast Regional Council [2019] QIRC 58
INDUSTRIAL LAW – Legal Representation –  Leave granted
Industrial Relations Act 2016 Qld s 530.

Legislation

Queensland

Subordinate legislation as made – 26 April 2019
No 57 Rural and Regional Adjustment (Commonwealth Scheme – North and Far North Queensland Flood Disaster) Amendment Regulation 2019
No 59 Planning (Minor Changes of Use) Amendment Regulation 2019 

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

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

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

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

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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