Local Government - Queensland Parliament...Local Government and Other Legislation Amendment Bill 2013 Report No. 33 Transport, Housing and Local Government Committee October 2013 Parliamentary

Local Government and Other Legislation Amendment Bill 2013

Report No. 33Transport, Housing and Local Government CommitteeOctober 2013

Parliamentary

Local Government and Other Legislation Amendment Bill 2013

Report No. 33 Transport, Housing and Local Government Committee October 2013

Transport, Housing and Local Government Committee

Chair Mr Howard Hobbs MP, Member for Warrego

Deputy Chair* Mrs Desley Scott MP, Member for Woodridge

Members Mr John Grant MP, Member for Springwood

Mr Darren Grimwade MP, Member for Morayfield

Mr Carl Judge MP, Member for Yeerongpilly

Mr Anthony Shorten MP, Member for Algester

Mr Jason Woodforth MP, Member for Nudgee

Secretariat Staff Ms Kate McGuckin, Research Director

Ms Rachelle Stacey, Principal Research Officer

Ms Danielle Cooper, Principal Research Officer

Ms Kelli Longworth, Principal Research Officer

Ms Lisa Van Der Kley, Executive Assistant

Ms Amanda Parker, Executive Assistant

Technical Scrutiny of Ms Renee Easten, Research Director

Legislation secretariat Ms Marissa Ker, Principal Research Officer

Mr Karl Holden, Principal Research Officer

Ms Tamara Vitale, Executive Assistant

Contact details Transport, Housing and Local Government Committee Parliament House George Street Brisbane Qld 4000

Phone +61 7 3406 7486

Fax +61 7 3406 7070

Email [email protected]

Web www.parliament.qld.gov.au/thlgc

Acknowledgements

The committee thanks those who briefed the committee, made submissions, gave evidence and participated in its inquiry. In particular the committee acknowledges the assistance provided by the Department of Department of Local Government, Community Recovery and Resilience; the Department of State Development, Infrastructure and Planning; and the Local Government Association of Queensland.

mailto:[email protected]

http://www.parliament.qld.gov.au/thlgc

Transport, Housing and Local Government Committee iii

Contents

Abbreviations iv

Recommendations vi

1 Introduction 1 1.1 Role of the Committee 1 1.2 Policy objectives of the Local Government and Other Legislation Amendment Bill 2013 1

2 Examination of the Local Government and Other Legislation Amendment Bill 2013 3 2.1 Background 3

2.1.1 Queensland Government’s local government reform program 3 2.1.2 De-amalgamation – new local governments, continuing local governments 3 2.1.3 Purpose of the Bill 3

2.2 Policy issues 5 2.2.1 Sustainable Planning Act 2009 amendments 5 2.2.2 Local Government Act 2009 amendments 14 2.2.3 Local Government Association of Queensland’s proposed amendments to the Local

Government Act 2009 15

3 Fundamental legislative principles 16 3.1 Rights and liberties of individuals 16

3.1.1 Proposed section 952 – Land within continuing and new local government area 16 3.1.2 Transitional Provisions Relating to Proceedings - proposed sections 955 and 957 19 3.1.3 Amendment to definition ‘local government related law’ and ‘Local Government

Act’ 21 3.2 Institution of Parliament 22

3.2.1 Proposed transitional provisions for amendments about State planning policy and regional plans - proposed section 948 – delegation of legislative power 22

3.3 Explanatory Notes 24

Appendices 25

Appendix A – List of Submissions 25

Statement of Reservation 26

Abbreviations Local Government and Other Legislation Amendment Bill 2013

iv Transport, Housing and Local Government Committee

Abbreviations

BA Building Act 1975

CEO Chief Executive Officer

COBA City of Brisbane Act 2010

DCP Development Control Plans

DSDIP Department of State Development, Infrastructure and Planning

JRA Judicial Review Act 1991

Legislative Assembly Queensland Legislative Assembly

LGA Local Government Act 2009

LGOLA12 Local Government and Other Legislation Amendment Act 2012

LGAQ Local Government Association of Queensland

Northbrook Northbrook Pty Ltd

Noosa on Weyba Noosa on Weyba Development Application

SPA Sustainable Planning Act 2009

SPP State planning policy

the Bill Local Government and Other Legislation Amendment Bill 2013

the Committee Transport, Housing and Local Government Committee

the Department

(or DLGCRR)

Department of Local Government, Community Recovery and Resilience

the Minister Minister for Local Government, Community Recovery and Resilience

Local Government and Other Legislation Amendment Bill 2013 Chair’s foreword

Transport, Housing and Local Government Committee v

Chair’s foreword This Report presents a summary of the Committee’s examination of the Local Government and Other Legislation Amendment Bill 2013. The Committee’s task was to consider the policy outcomes to be achieved by the legislation, as well as the application of fundamental legislative principles – that is, whether it has sufficient regard to rights and liberties of individuals and to the institution of Parliament. The public examination process allows the Parliament to hear from the public and stakeholders they may not have otherwise heard from, which should make for better policy and legislation in Queensland. On behalf of the Committee I thank those individuals and organisations who lodged written submissions on the Bill; others who have informed the Committee’s deliberations; the Committee’s secretariat; officials from the Department of Local Government, Community Recovery and Resilience; the Department of State Development, Infrastructure and Planning, the Local Government Association of Queensland; and the Technical Scrutiny of Legislation secretariat. I commend the report to the House.

Mr Howard Hobbs MP Chair October 2013

Recommendations Local Government and Other Legislation Amendment Bill 2013

vi Transport, Housing and Local Government Committee

Recommendations

Recommendation 1 2

The Committee recommends that the Local Government and Other Legislation Amendment Bill 2013 be passed.

Recommendation 2 6

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience amend the Bill’s proposed section 948 of the Sustainable Planning Act 2009 to ensure that, in the interests of procedural fairness, any development application that has been lodged before this amendment comes into effect, is considered by local governments under the same hierarchy of planning instruments that were in place at the date the application was lodged unless the applicant and the Council agree otherwise.

Recommendation 3 10

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience amend the Bill to include appeal provisions for decisions made after the changeover day by either the continuing or new local government where the matter relates to land within both local government areas.

Recommendation 4 13

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience amend section 952 of the Bill to ensure that, in the interests of procedural fairness, any development application that has reached the Information and Referral Stage of the Integrated Development Assessment System at the changeover date of 1 January 2013, remains with the continuing local government unless the applicant and both councils involved agree otherwise.

Recommendation 5 14

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience considers amending Clause 15 of the Bill to reflect the suggested change by the Local Government Association of Queensland to clarify the process for the preliminary assessment of a complaint about the conduct or performance of a councillor so that the Council Chief Executive Officer can respond to a complaint immediately, prior to Council providing written notice of the complaint to the Chief Executive Officer.

Recommendation 6 24

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience ensures, that for future Bills, the Explanatory Notes endeavour to clearly identify and address all applicable fundamental legislative principles.

Local Government and Other Legislation Amendment Bill 2013 Introduction

Transport, Housing and Local Government Committee 1

1 Introduction

1.1 Role of the Committee

The Transport, Housing and Local Government Committee (the Committee) was established by resolution of the Queensland Legislative Assembly (the Legislative Assembly) on 18 May 2012. The Committee comprises both government and non-government members and its primary areas of responsibility include transport, main roads, housing, public works, local government and community recovery and resilience.1

Portfolio committees are responsible for considering: • the policy to be given effect by the Bill • the application of the fundamental legislative principles to the Bill.2

The Legislative Assembly referred the Local Government and Other Legislation Amendment Bill 2013 (the Bill) to the Committee on 20 August 2013 and the Committee was asked to report by 9 October 2013.

Submissions were invited by directly contacting 85 stakeholders on 22 August 2013 and by emailing 600 subscribers on the Committee’s email subscriber list. The Committee received 10 submissions. See Appendix A for a list of submissions.

The Committee was briefed by the Department of Local Government, Community Recovery and Resilience (the Department or DLGCRR); the Department of State Development, Infrastructure and Planning (DSDIP); and the Local Government Association of Queensland (LGAQ) at a Public Briefing held on Wednesday, 11 September 2013. See Appendix B for a list of witnesses. On Tuesday, 1 October 2013, the Committee held a Public Hearing. A list of witnesses who gave evidence at the hearing is at Appendix C.

The transcript of the Public Briefing and the Public Hearing, as well as the submissions received, are available at: http://www.parliament.qld.gov.au/work-of-committees/committees/THLGC.

1.2 Policy objectives of the Local Government and Other Legislation Amendment Bill 2013

The Explanatory Notes states that the objectives of the Bill are to deliver the following key policies of the Queensland Government:

• to ensure the new de-amalgamating local governments of Douglas, Livingstone, Mareeba and Noosa Shire Councils have the power to make budget and rating decisions from 1 January 2014 (changeover day), clarify that the transfer of assets between de-amalgamating local governments will not incur duty under the Duties Act 2001 and provide transitional provisions for development applications affected by de-amalgamation

• to ensure certainty for local communities by providing that only the Minister may apply to the Local Government Change Commission (change commission) to assess a local government change application

• to further ensure that mayors and councillors are clearly in charge of councils by enabling one person to be both a councillor and a director of a local government corporate entity (other than the chairperson or deputy chairperson)

• to ensure the planning and development system is more efficient and effective.3

1 Sch. 6, Portfolio Committees, Standing Rules and Orders of the Legislative Assembly as amended (14/2/13). 2 Section 93 of the Parliament of Queensland Act 2001. 3 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:2.

http://www.parliament.qld.gov.au/work-of-committees/committees/THLGC

Introduction Local Government and Other Legislation Amendment Bill 2013

2 Transport, Housing and Local Government Committee

To achieve this objective, the Bill proposes to amend sections of the following existing Queensland legislation:

• the City of Brisbane Act 2010 (COBA)

• the Local Government Act 2009 (LGA)

• the Local Government and Other Legislation Amendment Act 2012 (LGOLA12)

• the Sustainable Planning Act 2009 (SPA).

Recommendation 1

The Committee recommends that the Local Government and Other Legislation Amendment Bill 2013 be passed.

Local Government and Other Legislation Amendment Bill 2013 Examination of the Bill


2 Examination of the Local Government and Other Legislation Amendment Bill 2013

2.1 Background

2.1.1 Queensland Government’s local government reform program

For the 2012 State election the Queensland Government committed to a program of local government reform (“Six month action plan July-December 2012” and the Empowering Queensland Local Government Election Policy) to revitalise the COBA and the LGA to empower local councils.

In his introductory speech, the Hon David Crisafulli, the Minister for Local Government, Community Recovery and Resilience, said that the first phase of the government’s reform program was implemented in late 2012 with the Local Government and Other Legislation Amendment Act 2012, which gave “local decision makers the legislative freedom and power to make decisions appropriate to local needs without interference from the State government”.4 The first phase is complemented by the new City of Brisbane Regulation 2012 and the new Local Government Regulation 2012.5

The Local Government and Other Legislation Amendment Bill 2013 implemented the final stages of the Queensland Government’s 2012 local government election commitment to empower Queensland local governments, in particular, its Empowering Queensland Local Government Policy 9.4.9. This policy provided that “if any local government boundaries are to be de-amalgamated, appropriate transitional and financial arrangements would be put in place to support the change”.6

2.1.2 De-amalgamation – new local governments, continuing local governments 7

On 9 March 2013, four Queensland communities participated in a poll under the Local Government (De-amalgamation Polls) Regulation 2013 to gauge community interest for de-amalgamation in their respective local government areas. Those four communities - Douglas, Livingstone, Mareeba and Noosa (the new local governments) voted in favour of de-amalgamation from Cairns, Rockhampton, Tablelands and Sunshine Coast Regional Councils respectively (the continuing local governments).

Implementation of the de-amalgamations is being carried out in accordance with the provisions of the LGA and the Local Government (De-amalgamation Implementation) Regulation 2013. Each local government affected by de-amalgamation has been appointed a Transfer Manager who is responsible for the implementation to ensure the four new local governments are independently and effectively operational from the changeover day.

2.1.3 Purpose of the Bill 8

This Bill amends the LGA to give the new local governments the power to set a budget and to levy rates outside of the current prescribed budget cycle and to provide for the transfer of assets from a continuing local government to a new local government, without incurring a duty under the Duties Act 2001. The Bill amends the SPA to provide transitional provisions for development applications affected by de-amalgamation.

4 Hon. David Crisafulli, the Minister for Local Government, Community Recovery and Resilience,

Hansard:2604. 5 Hon. David Crisafulli, the Minister for Local Government, Community Recovery and Resilience,

Hansard:2604. 6 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:1. 7 Unless otherwise stated, De-amalgamation–new local governments, continuing local governments section is

from the Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:1-2. 8 Unless otherwise stated, Purpose of the Bill section is from the Explanatory Notes, Local Government and

Other Legislation Amendment Bill 2013:2.

Examination of the Bill Local Government and Other Legislation Amendment Bill 2013


To ensure certainty for local communities and to minimise the potential for any contradiction of the Government’s policy intent for councils to remain as constituted after de-amalgamation, the Bill amends the LGA to provide that only the Minister for Local Government, Community Recovery and Resilience may apply to the change commission to assess a local government change application.

The Bill further contributes to the implementation of the Government’s Empowering Queensland Local Government Policy 4.4 of ensuring that mayors and local councillors are clearly in charge of councils by amending the LGA to enable one person to be both a councillor and a director of a local government corporate entity (other than the chairperson or deputy chairperson).

The Bill amends the SPA to reverse the current relationship and hierarchy between State planning policies (SPPs) and regional plans, and allow for the continued operation of development control plans (DCPs) that were prepared under the repealed Local Government (Planning and Environment) Act 1990, to allow for inclusion in the SPA planning schemes.

The Bill also makes minor and technical amendments to the COBA and the LGA to further clarify policy intent and to correct minor anomalies.

In its Report No. 23 (tabled on 12 February 2013) the Committee made a recommendation that “the provisions which enable other bribery and integrity offences to be prescribed under a regulation be deleted and should be specified in the Act”.9 In the same Report, the Committee recommended that “a councillor’s failure to give notice if an interest (listed in the register of interests) is no longer correct should not be grounds for dismissal” and, therefore, “section 240 of the City of Brisbane Regulation 2012 and section 253 of the Local Government Regulation 2012 be deleted”.10

Committee comment

The Committee acknowledges that the Bill repeals the power for a regulation to prescribe bribery and integrity offences.

The Committee notes that its recommendation regarding the disqualification of a councillor for failure to update the register of interest has been partially implemented. The Bill proposes to relocate the offence from the regulations to the respective Acts and now distinguishes between intentional and other failure to notify. Intentional failure to notify will result in a penalty of 100 units and will be deemed an integrity offence (subject to the disqualification provisions). Otherwise, failure to notify will result in a penalty of 85 units but will not be deemed an integrity offence. The Committee supports the amendment as proposed in the Bill.

9 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:4. 10 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:4; THLGC, Report No. 23:

Subordinate legislation tabled on 12 February 2013 (SL234-250) (SL9-16), May 2013:6-7.



2.2 Policy issues

2.2.1 Sustainable Planning Act 2009 amendments

During the inquiry process, the Committee considered issues regarding the Bill’s proposed amendments to the Sustainable Planning Act 2009 (SPA) that relates to DCPs; to SPPs; and to local government de-amalgamations.

Development control plans

Clause 30 inserts a new section 86, planning schemes for particular local governments, which provides for existing DCPs prepared under the Local Government (Planning and Environment) Act 1990 to be included in SPA planning schemes.

The Committee notes the broad support for the proposed section from the local governments (Moreton Bay Regional Council, Sunshine Coast Regional Council and Ipswich City Council) who have existing DCPs (Mango Hill, Kawana Waters and Springfield) and are currently preparing SPA planning schemes.

The Department advised the Committee that consultation had been undertaken with those affected local governments, and that those councils had indicated that they would like to incorporate the existing DCPs in their new schemes to avoid unnecessary rework.11 One of the local governments, SCRC, stated in its submission that the proposed section will allow for the continued operation of the DCP 1 (Kawana Waters) and the associated master planning and infrastructure arrangements for the development of land within the area. 12

Committee comment

The Committee acknowledges the consultation process undertaken by the Department of Local Government, Community Recovery and Resilience with the Moreton Bay Regional Council, Sunshine Coast Regional Council and Ipswich City Council who have existing development control plans. The Committee notes the support from those affected local governments for the proposed amendments to the Sustainable Planning Act 2009 that will allow for the inclusion of the development control plans in Sustainable Planning Act 2009 planning schemes.

Role of State planning instruments

Clause 31 inserts a new section 948 in the SPA, which applies to the role of State planning instruments in deciding development applications.

• Inconsistencies between a State planning policies and regional plan The Committee sought clarification from the Department on a matter raised by a submitter, P&E Law, who was concerned that any inconsistencies between a SPP and regional plan may result in “wasted time for an applicant when preparing a development application for assessment”.13 The Department responded:

The Bill does not prevent an applicant from seeking a pre-lodgement meeting with the assessment manager to discuss the proposal and come to an agreement on which hierarchy is most suitable – this is the preferred approach in the current system and is a useful strategy where applications are complex or potential issues may arise.

11 DLGCRR, Written Brief – Attachment 1, 13 September 2013: 7; DLGCRR, Written Brief – Attachment 2, 13

September 2013: 2. 12 Sunshine Coast Regional Council, Submission No.7: 2. 13 P&E Law, Submission No. 2:2.



The section provides discretion for the assessment manager or referral agency to apply the relevant provisions (either the current State planning instrument hierarchy, or the new hierarchy introduced with this provision) according to the specific circumstances. In light of the government’s intention for the single State planning policies (SPPs) to prevail to the extent of inconsistencies with older regional plans, the discretion will enable the application of this new hierarchy to resolve any conflicts. A relevant consideration in deciding to apply the new or old hierarchy would include whether the application of the new hierarchy may adversely affect the applicant.

The proposed change in hierarchy is designed to ensure inconsistencies between a SPP and regional plan are addressed appropriately. Over time it is expected that an SPP and regional plan will be consistent. 14

The Committee also sought advice from the Department in regards to P&E Law’s concern that no consideration has been provided for drafting planning schemes prepared to accommodate regional plans and/or the new SPP. 15 The Department responded:

The Department is utilising non-legislative measures to assist local governments appropriately address the new (State planning policy) (which will over-ride regional plans where there is an inconsistency). The new State planning policy is scheduled to be released in late 2013. 16

Committee comment

The Committee is satisfied with the clarification provided by the Department of Local Government, Community Recovery and Resilience that the proposed change in the State planning policy hierarchy is designed to address any inconsistency between a State planning policy and regional plan, and will not adversely affect the time taken by an applicant to prepare a development assessment.

The Committee noted the Department’s advice that it will utilise non-legislative measures to assist local governments to appropriately address the new State planning policy.

The Committee supports the proposed amendment on the proviso, that in the interest of procedural fairness, any development application that has been lodged before this amendment comes into effect, is considered by local governments under the same hierarchy of planning instruments that were in place at the date the application was lodged unless the applicant and the Council agree otherwise.

Recommendation 2

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience amend the Bill’s proposed section 948 of the Sustainable Planning Act 2009 to ensure that, in the interests of procedural fairness, any development application that has been lodged before this amendment comes into effect, is considered by local governments under the same hierarchy of planning instruments that were in place at the date the application was lodged unless the applicant and the Council agree otherwise.

14 DLGCRR, Written Brief – Attachment 4, 13 September 2013: 3-4. 15 P&E Law, Submission No. 2:2. 16 DLGCRR, Written Brief – Attachment 4, 13 September 2013:4.



• Protection of agricultural property Another submitter, Property Rights Australia, questioned the potential impact on the protection of agricultural property as a result of the new hierarchy and the relationship between regional plans and the new SPP.17 The Committee sought clarification from the Department on this matter and was provided with the following response:

In August 2012 the government announced the intention to have a single State planning policy (SPP) expressing the government’s policy position on all matters of State interest. Consequently the intended role of the SPP is intended to sit at the top of the hierarchy of planning instruments and inform the development of all other planning instruments, including regional plans.

The SPP will prevail over regional plans to the extent of any inconsistency. The draft single SPP generated strong interest during the statutory consultation phase between 15 April and 12 June 2013, with regional information sessions, stakeholder meetings, telephone hotline and email enquiries. Feedback received supported elevating the SPP above regional plans in the hierarchy of planning instruments contained in SPA.

Agriculture is a state interest included in the draft SPP and is intended to reduce the potential for conflict between other uses, protect resources from inappropriate development, minimise encroachment to ensure viable tracts of agricultural land are maintained and improve opportunities for increased agricultural production and diversification. 18

Committee comment

The Committee notes the advice provided by the Department of Local Government, Community Recovery and Resilience on the impact of the proposed change in the State planning policy hierarchy on agricultural property. Development applications affected by local government de-amalgamations

The Bill provides for transitional provisions to address a range of circumstances effecting development applications in de-amalgamating council areas to provide consistency, clarity and certainty for applicants and the councils.19

Clause 31 inserts a new section 952 into the SPA, which allows for the continuing local government to decide by the end of 2 January 2014, whether it is to continue to be the decision maker for the application or request in the case where the land is sited within both the continuing and new local government areas.

Several submitters have raised concerns about the proposed section 952, specifically in relation to the Noosa on Weyba Development Application (Noosa on Weyba) by Northbrook Corporation Pty Ltd (Northbrook).20 Noosa on Weyba is located at Noosaville and Weyba Downs on the Sunshine Coast and is sited within both the continuing Sunshine Coast Council and the new Noosa Shire local government areas.

17 Property Rights Australia, Submission No. 10: 1. 18 DLGCRR, Written Brief – Attachment 4, 13 September 2013: 4-5. 19 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:6. 20 Northbrook has marketed the project as a master-planned community for a proposed 876 dwellings made

up of residential and aged-care apartments, plus a boutique tea house and convenience outlet for the public (Retrieved from: http://www.noosaonweyba.com.au/master-plan/).



The concerns raised in submissions mainly relate to the proposal in the Bill that the continuing council is responsible for choosing whether it is to continue to be the decision maker for development applications which straddle both the continuing and the new local government areas and that this decision is not required to be made until 2 January 2014. This approach may cause uncertainty for applicants who have already made significant investment in the development application process and also for the new local governments which are to be established from 1 January 2014 as well as the communities involved.

Submitters have proposed a variety of possible options to resolve these issues.

• Concurrency agency role The SCRC’s position on the Noosa on Weyba development application is articulated in separate submissions from two of its councillors and in a submission from its Chief Executive Officer (CEO). Each Sunshine Coast Regional Council submitter was concerned that the proposed section 952 of the SPA would have significant consequences for the new Noosa Shire local government and its constituents.21 Specifically:

This application is unlikely to be decided prior to changeover day …

The amendments do not provide for any concurrence agency role for the other council [new local government], including only a requirement to consult the other council. It is therefore unlikely that the Sunshine Coast Council, or any continuing Council, will relinquish its decision making powers to the new Council, without a concurrence agency role. This would be unacceptable for the for the new Council and community, as the development effectively represents an extension of Noosa’s urban footprint and will predominantly impact on networks and services in the Noosa area.

For such a major development, it is only reasonable that both local governments (in our case the Sunshine Coast Council and the new local government for Noosa) are afforded the opportunity to have a legal basis for input into an application’s decision and any future proceeding…..

the Transfer Committee made up of the Transfer Manager and continuing Chief Executive Officer of the Sunshine Coast has written to the Department expressing the Committee’s preferred position which is that the Sunshine Coast becomes the concurrence agency and the new Noosa Council the decision maker. 22

Another submitter, Paul Summers Planning Strategies, on behalf of the Friends of Lake Weyba and the Noosa Parks Association, stated that it also supports an amendment to the proposed section 952 to enable the continuing Sunshine Coast Regional Council to become a ‘concurrence agency’ and the new Noosa Council to become the decision maker with regards to the Noosa on Weyba development application. 23

The Committee asked the DSDIP at the Departmental Briefing if it was viable for the continuing Sunshine Coast Regional Council to be the concurrence agency and the new Noosa Council to be the decision maker. DSDIP responded:

There have been a number of different views expressed about how the amendments should deal with that. They range from a request for the minister to make a decision about which council should deal with the application, and if I could deal with that in the first instance. That is an interesting suggestion, but it is one that cannot be given effect because the

21 Sunshine Coast Regional Council, Submission Nos. 4, 5 and 6. 22 Sunshine Coast Regional Council, Submission No. 5 (see also Submission Nos 4 and 6). 23 Paul Summers Planning Strategies, Submission No. 3:2.



minister does not have that option now. Only one council exists so he has no choice. He can only direct the council that is currently dealing with it to deal with it, which that council was already doing.

… There has been a request for that provision to go further and to mandate a concurrency requirement for the council that would no longer be assessing the application. ..... if you were the council then being compelled to apply the conditions imposed by another council and those conditions were unreasonable or irrelevant and you have no choice but to impose them, you find yourself in court defending unreasonable and irrelevant conditions that were nothing to do with your decision.

So we have opted for what you would see as a common-sense approach—that the council that would no longer be dealing with it has the right to express their views to provide appropriate conditions, that the council that is legally responsible for determining the application would take those into account in a sensible and common-sense way and proceed with the application along those lines.24

Further advice from the Department states:

The Bill has been drafted as a less regulatory approach where consultation between councils is required prior to a decision being made on the application or request – rather than specifying one as assessment manager and the other as concurrence agency for all cases. 25

The proposal for the Minister to appoint an assessment manager with the other local government being the concurrence agency may result in delays to the development application process to allow time for the Minister to make this decision on every relevant case. Since Noosa Shire Council or any other new local government will not exist until 1 January 2014, a request to the Minister could not be made until after this date. 26

Committee comment

The Committee is satisfied that the only practical solution is for one council to be the decision maker and that no other council should have a concurrency role. See pages 11-14 of this Report for discussion of the issue concerning which council should be the decision-maker in relation to applications which have progressed to the Information and Referral stage of the Integrated Development Assessment System.

• Lack of appeal provisions for the non-decision making council Paul Summers Planning Strategies also raised concern about there being no appeal rights for the non-decision making council that is affected by the decision on the development application. 27

The Department acknowledged this concern and is intending to amend the Bill:

As a result of the submissions that raise concerns about a legal role, the Department of State Development, Infrastructure and Planning will amend the Bill to include appeal provisions which relate to decisions made after changeover day by either the continuing or new local government where the matter relates to land within both local government areas. These provisions would enable the ‘other’ local government to elect to be a party to an appeal. 28

24 Hansard Transcript, Local Government and Other Amendment Bill 2013:6. 25 DLGCRR, Written Brief-Attachment 4, 13 September 2013: 6. 26 DLGCRR, Written Brief Attachment 4, 13 September 2013:10. 27 Paul Summers Planning Strategies, Submission No.3:2 (See also Submissions Nos: 4, 5 and 6). 28 DLGCRR, Written Brief – Attachment 4, 13 September 2013: 5-6.



Committee comment

The Committee notes that the Department of Local Government, Community Recovery and Resilience has considered the concerns of submitters about review rights and intends to amend the Bill to include appeal provisions for decisions made after the changeover day by either the continuing or new local government where the matter relates to land within both local government areas.

The Committee supports the Department’s proposed amendment to the Bill that will enable the ‘other’ local government to elect to be a party to an appeal.

Recommendation 3

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience amend the Bill to include appeal provisions for decisions made after the changeover day by either the continuing or new local government where the matter relates to land within both local government areas.

• Northbrook Pty Ltd - development application The applicant for Noosa on Weyba, Northbrook, would like the Sunshine Coast Regional Council to remain as the decision maker for its development application.29 In its submission, Northbrook argues that the proposed section 952 may adversely affect the Noosa on Weyba’s application process.

The Committee sought advice from the Department on Northbrook’s concerns.

In response to Northbrook’s suggestion that “the amendment does not advance the purpose of the SPA by ensuring decision making processes are accountable, coordinated, effective and efficient”, 30 the Department responded:

The Bill does not introduce a new ‘decision’ process for development applications. The assessment process and decision rules for development applications remain the same. Section 952 merely requires the continuing local government to determine which development applications it will continue to make decisions about – this is only in cases where the land to which the proposed development falls in both the continuing and new local government areas. 31

Northbrook argued that “the amendment does not provide certainty to the applicant and community over the development assessment process”. 32 The Department responded:

The development assessment process and decision rules that are applied in that assessment remain the same. The development assessment process continues between now and 1 January 2014. There are no delays introduced by the Bill unless a development application is handed over to the new local government to be the decision maker after changeover day. They will have an additional 10 business days to complete the step that was ‘in train’ at the time of changeover day.

If the continuing local government hands over a development application to the new local government, they must notify the new local government and the applicant within two business days after 2 January 2014.33

29 Northbrook Corporation Pty Ltd, Submission No. 9:3. 30 Northbrook Corporation Pty Ltd, Submission No. 9:2-3. 31 DLGCRR, Written Brief - Attachment 4, 13 September 2013:12. 32 Northbrook Corporation Pty Ltd, Submission No. 9:2-3. 33 DLGCRR, Written Brief - Attachment 4, 13 September 2013:12-13.



Northbrook questioned if ‘the amendment provided the applicant with procedural fairness”. 34 The Department responded:

There is nothing in the Bill that prevents the continuing local government consulting with the applicant prior to making a choice about which development applications it will continue to be decision maker. 35

Northbrook was concerned that “the amendment will cause delays to the development assessment process”. 36 The Department responded:

The consultation obligations between local governments in the Bill do not add to the timeframes. The consultation obligation is aimed at making the changeover as smooth as possible. All timeframes still need to be adhered to. There are no delays introduced by the Bill unless a development application is handed over to the new local government to be the decision maker after changeover day. They will have an additional 10 business days to complete the step that was ‘in train’ at the time of changeover day. This is to assist the new local government come ‘up to speed’ on the development application and will facilitate the decision making process rather than rushing decisions and perhaps making errors that result in costing time and money. 37

Northbrook also raised concern that “the amendment will likely increase costs to the applicant”.38 The Department responded:

There are no additional decisions related to the assessment of the development application. Consultation between local governments does not result in additional time. The only delay in section 952 is an additional 10 business days to complete the step that was ‘in train’ at the time of changeover day. This is to assist the new local government come ‘up to speed’ on the development application and will facilitate the decision making process rather than rushing decisions and perhaps making errors that result in costing time and money. 39

Based on the concerns that Northbrook raised in its submission, the Committee questioned DSDIP at the Public Briefing about the process to be undertaken by those local governments dealing with development applications affected by de-amalgamation. DSDIP responded:

I do not believe we are in a situation of being able to require a council to deal with a matter unless it has the appropriate information to do so.

… assuming that the council gets the appropriate information which is necessary for it to make its determination, State Planning Act 2009 already compels the council to deal with the matter expeditiously. So, in effect, a council cannot sit on its hands and not deal with a matter.

As I said, in conversations that we have had very recently—I spent some time in the Sunshine Coast with the Sunshine Coast council senior planning staff yesterday; not specifically about this issue but about a range of other things but this issue came up in conversation—they advised that their intention is that, should all the information be available, they have no intention to do anything other than to proceed with the application.

34 Northbrook Corporation Pty Ltd, Submission No. 9:2-3. 35 DLGCRR, Written Brief - Attachment 4, 13 September 2013:13. 36 Northbrook Corporation Pty Ltd, Submission No. 9:2-3. 37 DLGCRR, Written Brief - Attachment 4, 13 September 2013:13. 38 Northbrook Corporation Pty Ltd, Submission No. 9:2-3. 39 DLGCRR, Written Brief - Attachment 4, 13 September 2013:13-14.



If they are able to do that before de-amalgamation, then that is their intention. So they are aware of their obligation under the act to progress matters. 40

The Committee further asked what would happen if the continuing local government did not make that decision by the changeover date. DSDIP reassured the Committee that:

The implications for the applicant is that the council currently dealing with it is then compelled by these amendments to consider whether they would continue to deal with the application or whether they would sign that application to Noosa in this case. 41

Following the Departmental Briefing, Northbrook wrote to the Committee stating that it has a concern that the proposed section 952 of the SPA may allow for a “well advanced application to be decided by a new local government with substantially changed goalposts for an applicant, including, for example, assessment against different planning schemes” and believes “this is unfair”.42 For this reason, Northbrook has suggested the proposed section 952 of the SPA be amended so that:

development applications remain with the continuing local government if the application has reached the Information and Referral Stage of the Integrated Development Assessment System (IDAS) process for development applications that are substantially progressed.

… Any application only recently made, or which is still to be made, can still be decided by either local government to be agreed between themselves. 43

The Committee asked the Department to provide advice on this matter and the Department responded:

...The suggested amendment is to specifically accommodate this one development application, and the stage in the application assessment process to which it has progressed. As mentioned previously, this application is the only one in train at the moment which straddles both local government areas. Legislation has been drafted to be able to apply to any development application that straddles both areas, regardless of where in the application assessment process it may be at changeover day.

While it would be possible to draft legislation as suggested by Norton Rose Fulbright, to specifically accommodate the Noosa on Weyba development application and its stage in the Integrated Development Assessment System process would leave the Government open to criticism, as well as set an undesirable and detrimental precedent.

In addition, the Information and Referral Stage is still gathering information and referring to other relevant State agencies – some of which may be concurrence agencies, which has the right to either direct the local government to refuse the application, or to apply conditions to the application. The suggested solution does not necessarily gain the outcome desired by Norton Rose Fulbright. Furthermore, the proposed amendment happens to be based on the stage the current application is up to in the assessment process. There is little at this stage that is a useful indicator of which council should deal with the application following de-amalgamation, so the suggested solution by Norton Rose Fulbright is arbitrary and unsubstantiated.

It is also important to note that assessment of the development application would be against planning schemes currently in place. Sunshine Regional Coast Council does not yet have a SPA scheme in place and is using the previous IPA Maroochydore and IPA Noosa planning schemes in the assessment. Accordingly, regardless of which council eventually

40 Hansard Transcript, Local Government and Other Amendment Bill 2013:7. 41 Hansard Transcript, Local Government and Other Amendment Bill 2013:7. 42 Northbrook Corporation Pty Ltd, Correspondence 12 September 2013:1. 43 Northbrook Corporation Pty Ltd, Correspondence 12 September 2013:1.



considers the Noosa on Weyba application, the same schemes will form the basis of assessment. 44

Committee comment

The Committee acknowledges Northbrook Corporation Pty Ltd’s concerns about the uncertainty surrounding the development approval process for the Noosa on Weyba development due to the changes brought about by the de-amalgamation process. This is of particular concern given the late stage (Information and Referral Stage of the Integrated Development Assessment System) of this development application and the considerable investment, in both time and money, that Northbrook has put in the process so far.

The Committee is of the view that in the interests of procedural fairness any development application that has reached the Information and Referral stage of the assessment process at the changeover date of 1 January 2013 should remain with the continuing local government unless the applicant and both councils involved agree otherwise.

Recommendation 4

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience amend section 952 of the Bill to ensure that, in the interests of procedural fairness, any development application that has reached the Information and Referral Stage of the Integrated Development Assessment System at the changeover date of 1 January 2013, remains with the continuing local government unless the applicant and both councils involved agree otherwise.

44 DLGCRR, Correspondence, 26 September 2013:3-4.



2.2.2 Local Government Act 2009 amendments

Preliminary assessments of the complains process about the conduct or performance of a councillor

Clause 15 amends section 176B to make specific reference to the CEO and mayor receiving a complaint about the conduct or performance of a councillor. The amendment clarifies the process for the preliminary assessment of a complaint about the conduct or performance of a councillor if the complaint is made or received by the local government, the department’s chief executive, the CEO or the mayor.45

At the Public Briefing, LGAQ tabled a proposed amendment to Clause 15 for the Committee’s consideration. 46 It informed the Committee that while it agreed with the policy intent of Clause 15, based on legal advice it had received, “the current amendments within the Bill may require some very minor amendment to clarify the policy intent, namely, that the council CEO can deal with the complaint immediately rather than council be required to give written notice of the complaint to the CEO”.47

Committee comment

The Committee notes the request by Local Government Association Queensland to make a minor amendment to Clause 15 to clarify the process for the preliminary assessment of a complaint about the conduct or performance of a councillor so that the Council Chief Executive Officer can respond to a complaint immediately, prior to Council providing written notice of the complaint to the Chief Executive Officer.

Recommendation 5

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience considers amending Clause 15 of the Bill to reflect the suggested change by the Local Government Association of Queensland to clarify the process for the preliminary assessment of a complaint about the conduct or performance of a councillor so that the Council Chief Executive Officer can respond to a complaint immediately, prior to Council providing written notice of the complaint to the Chief Executive Officer.

One councillor may be a director of a corporate entity

The Bill articulates the Queensland Government’s Empowering Queensland Local Government Policy 4.4 to ensure that mayors and local councillors are clearly in charge of councils by amending the LGA to enable one person to be both a councillor and a director of a local government corporate entity (other than the chairperson or deputy chairperson).48

Clause 19 inserts new section 302 to allow one director of a local government corporate entity to also be a councillor of the owner local government. A person who is both a director of the corporate entity and a councillor cannot be the chairperson or deputy chairperson of the board of the corporate entity.

Fraser Coast Regional Council as sole shareholder and parent entity of Wide Bay Water Corporation requested in its submission “that in keeping with the currency of other corporate models that no legislative restrictions should be placed on the appointment to an LGOC of Councillors, and that the

45 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:16. 46 Hansard Transcript, Public Briefing, 11 September 2013:10. 47 Hansard Transcript, Public Briefing, 11 September 2013:10. 48 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013:2.



determination of the appropriate mix and skills of the Board is best placed with the shareholder”. 49 The Department responded:

The restriction is a policy decision of the government. This is consistent with government policy to allow only one councillor representative from each participating local government to hold a board position under the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009. 50

Committee comment

The Committee is satisfied with the advice provided by the Department of Local Government, Community Recovery and Resilience regarding the amendment which will allow one director of a local government corporate entity to also be a councillor of the owner local government.

2.2.3 Local Government Association of Queensland’s proposed amendments to the Local

Government Act 2009

In its submission, the LGAQ raised the following two issues in relation to the LGA for the Committee’s consideration:

Request for a natural hazard indemnity to be included in the LGA to relieve local governments from liability for reasonably based decision making and actions, similar to that found in section 733 of the New South Wales Local Government Act 1993.

Request for a clarifying amendment to section 259 in relation to the power of the CEO to delegate his or her powers. The LGAQ submit that under the current wording it is arguable that the CEO’s delegation power could be construed as confined, or limited, to the CEO’s powers under the LGA and not include powers under another Act. 51

The Committee understands that these issues were outside the scope of the Bill, however, it asked the Department for advice on these issues. The Department responded:

As the Bill does not contemplate a natural hazard indemnity for local governments or the delegation of Chief Executive Officer powers, the issues are outside of the scope of the Bill. The issues submitted by the Local Government Association of Queensland will be considered further by the Department, separate to the Bill.52

Committee comment

The Committee notes the advice by the Department of Local Government, Community Recovery and Resilience that those issues submitted by the Local Government Association of Queensland will be considered further by the Department, separate to the Bill.

49 Fraser Council Regional Council, Submission No. 1:4. 50 DLGCRR, Written Brief – Attachment 4, 13 September 2013: 1. 51 LGAQ, Submission No. 8:1. 52 DLGCRR, Written Brief – Attachment 4, 13 September 2013: 2.

Fundamental legislative principles Local Government and Other Legislation Amendment Bill 2013


3 Fundamental legislative principles

Section 4 of the Legislative Standards Act 1992 states that ‘fundamental legislative principles’ are the ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’. The principles include that legislation has sufficient regard to:

the rights and liberties of individuals the institution of parliament.

The Committee has examined the application of the fundamental legislative principles to the Bill and brings the following issues to the attention of the Legislative Assembly. The Committee has separated issues by the relevant component of the Bill rather than by the individual principles themselves.

The Explanatory Notes raise six issues concerning fundamental legal principles which relate to the following topics:

Qualifications for councillors Integrity offence if a councillor intentionally fails to update register of interests Minister to apply to the Local Government Change Commission to assess a local government

change Proposed transitional provisions for new de-amalgamating local governments for the remainder

of the 2013-14 financial year Proposed transitional provisions for amendments about State planning policy and regional plans Proposed transitional provisions relating to proceedings.

Of these, the Committee was satisfied with the explanation in the Explanatory Notes53 in relation to the first four of the issues listed above but considered that the last two issues listed above warranted further analysis. Accordingly, these latter two issues are discussed below. The Committee also noted some additional issues relating to fundamental legal principles, which are also discussed below.

3.1 Rights and liberties of individuals

3.1.1 Proposed section 952 – Land within continuing and new local government area

Discretion to continue as decision maker

The Committee understands that the proposed section 952 is intended to apply when an application or request made under the SPA is before a continuing local government but has not been decided and the land is partly within a continuing local government area and partly within a new local government area. The continuing local government is required to decide whether it is to continue to be the decision maker for the application or request by 2 January 2014.

There is potential for the application of this section to create issues of fundamental legislative principle. The main issue with section 952 is that the continuing local government has discretion about whether to continue as decision maker.

This matter of fundamental legislative principle is not identified or addressed by the Explanatory Notes.

The Committee understands from the Public Briefing on 11 September 2013 and Submission No. 8 from Northbrook that there is at least one application under the SPA that, after de-amalgamation, will be partly within the Sunshine Coast Regional Council area and partly within the Noosa Shire Council area. 53 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013: 6-9.

Local Government and Other Legislation Amendment Bill 2013 Fundamental legislative principles


The Committee sought advice from the Department regarding this potential breach of fundamental legal principles. The Department responded:

While there is only one development application at this time that this would apply to (straddling both continuing and new local government areas), the legislation has been drafted to be able to apply to any similar situation in train at time of commencement.

It is not considered appropriate to draft legislation for one specific development application. As stated in consultation, the Department of State Development, Infrastructure and Planning has liaised with councils to clarify the arrangements needed to apply to the development assessment processes and these councils supported the proposed approach. 54

Committee comment

The Committee notes the advice from the Department in relation to the issue of the continuing local government having discretion to continue as decision maker. The Committee has made recommendations to amend the Bill’s proposed sections 948 and 952 of the Sustainable Planning Act 2009 in the interests of procedural fairness. (See Recommendation Nos 2 and 4).

Lack of criteria for decision to continue as decision-maker

As noted above the Committee has recommended changes to sections 948 and 952 of the SPA, which, if accepted, would make the issues detailed below only apply to those applications that have not reached the Information and Referral stage of the Integrated Development Assessment System.

The Committee noted that proposed section 952 does not set out the criteria to be used by a continuing local government in making the decision under section 952(2) about whether to continue as decision maker. Further, no detail is provided about how the decision is to be made, for example, whether a decision by a majority of councillors is required.

Proposed section 952 gives the continuing local government a very broad discretion which is not sufficiently defined. With this comes the potential for irrelevant considerations, such as political expediency, or support or opposition for the application or request, to influence the decision about who will decide the application or request. Instead of giving the continuing local government such a broad discretion, the Committee considered that it would be preferable for legislation to determine the identity of the continuing decision maker objectively, for example, by stating that the local government to whom the original application was made continues as decision maker; or the local government which controls more than 50 per cent of the relevant land is the decision maker. Another less objective option would be to give the applicant the choice which local government body is the decision maker.

The Committee sought advice from the Department concerning this potential breach of fundamental legal principles and also suggested the alternative approaches outlined above. The Department responded:

It is a government commitment to empower local government and enable them to make decisions suitable for their communities without State intervention or unnecessary prescription. The Bill achieves this through allowing the continuing local government the discretion to choose which development applications [in respect of which] it continues to be the decision maker. In addition, as a result of the submissions, DSDIP proposes to make amendments during consideration in detail, subject to the Premier’s approval, which will provide an opportunity for a legal role for both local governments.

54 DLGCRR, Correspondence, 23 September 2013.



In response to the alternatives raised by the Committee:

If the continuing local government remains as assessment manager, this may also adversely impact the new local government and is a more regulatory approach.

By stating that the local government which controls more than 50 per cent of the relevant land should be the decision maker does not necessarily mean it would correlate to more than 50 per cent of potential impact – this would depend on the particular development proposal. For example, the structure of the development may be located on one corner of the land in the other local government area.

Providing the applicant the choice may also seem to be subjective and potentially open to political expediency or influence, or support for the application. This option also has the potential to adversely impact the community in which the proposed development would be located, as well as the ‘other’ local government.

None of the above options will be ‘equally fair’ to all parties, for any situation in train at commencement. The DSDIP proposal for amendments during consideration in detail is considered to be the best solution, providing opportunity for either local government to have a legal role in any proceeding.55

Committee comment

The Committee is satisfied with the response from the Department in relation to the issue of the lack of criteria for the decision to continue as decision-maker. However, the Committee has made recommendations to amend the Bill’s proposed sections 948 and 952 of the Sustainable Planning Act 2009 in the interests of procedural fairness which would make the issue regarding lack of criteria redundant for those applications that have reached the Information and Referral stage of the Integrated Development Assessment System. (See Recommendation Nos 2 and 4).

Lack of internal review

The Committee also noted that there does not appear to be provision in the SPA for a decision by a continuing local government under proposed section 952 to be reviewed internally within the relevant Department.

The Committee understands that the SPA, section 757, would apply to a decision of a continuing local government under section 952. Therefore, statutory orders of review under the Judicial Review Act 1991 (JRA), part 3 and prerogative orders and injunctions under part 5 of the JRA are not available. The only review mechanism available is an application for a statement of reasons under the JRA, part 4. Therefore, it appears that the decision of a continuing local government under section 952 is not subject to appropriate review.

Accordingly, proposed section 952 appears to make rights, liberties and obligations of individuals dependent on administrative power, where administrative power is not sufficiently defined or subject to appropriate review. Therefore, it is the Committee’s view that section 952 does not appear to have sufficient regard to the rights and liberties of individuals.

The Committee sought advice from the Department which responded as follows:

In regard to an internal review mechanism for a decision made by a continuing local government under proposed section 952 - development applications are primarily a local government responsibility – not State, unless the State is either the assessment manager or referral agency. Review by DSDIP of the local government decision is unnecessary intervention by the State and not considered appropriate. In addition, a State interest basis




is required in order for the Minister to use the call-in powers under SPA to decide the application.

However, section 456 of SPA enables any person to bring a proceeding in the Planning and Environment Court (the Court) for a declaration about a matter done for the SPA. This provision would enable an applicant to seek a declaration about the decision of a continuing local government to retain or give away decision making powers under the proposed section 952.56

Committee comment

The Committee is satisfied with the response from the Department regarding the lack of internal review under proposed section 952.

3.1.2 Transitional Provisions Relating to Proceedings - proposed sections 955 and 957

As noted previously the Committee has recommended changes to sections 948 and 952 of the SPA, which, if accepted, would make the issues detailed below only apply to those applications that have not reached the Information and Referral stage of the Integrated Development Assessment System.

The Committee has considered proposed sections 955 and 957 and noted that they apply to existing proceedings under the SPA started before the changeover day to which the continuing local government is a party and the land to which the proceeding relates is partly within a continuing local government area and partly within a new local government area.

These provisions mean that, if the Minister decides that the continuing council is not to be a party to the proceeding under section 955(3) or 957(4), the person bringing the proceeding will lose the ability to proceed against that continuing local government.

The Explanatory Notes raised this issue of fundamental legislative principle under the heading “Proposed transitional provisions relating to proceedings” and stated the following by way of justification:

These amendments are necessary to deal with the complexities of the de-amalgamations.

While it is possible that an individual may be inconvenienced by a change in the parties to a proceeding, it is equally possible they may be benefited by such a change. The court has discretion to award costs and is likely to consider this factor in such a decision. The Department of Justice and Attorney-General was consulted on these provisions and did not raise any issues.57

Despite the explanation in the Explanatory Notes, the Committee had the following additional concerns which it raised with the Department:

Proposed sections 955 and 957 authorise the Minister to decide a fundamental aspect of the judicial process, that is, the parties to a proceeding. There are very practical consequences of this outcome. For example, if judgment is given, these provisions will impact which entity is found liable. It would not appear appropriate for the Minister, as part of the executive arm of government, to be involved in the judicial process in this manner. If the legislature passed these clauses in the Bill, this could be interpreted as interference by the legislature with the judicial process.

Proposed new sections 955 and 957 appear to be contrary to the separation of powers. This is a cornerstone of a parliamentary democracy based on the rule of law.

56 DLGCRR, Correspondence, 23 September 2013. 57 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013: 9.



Further, the Committee is concerned that the actions by the Minister are not appropriately defined as the Bill does not set out any criteria for a Minister’s decision under section 955(3) or 957(4).

The SPA, section 757, would apply to a decision of the Minister under section 955(3) or 957(4). Therefore, statutory orders of review under the JRA, part 3 and prerogative orders and injunctions under part 5 of the JRA are not available. The only review mechanism available appears to be an application for a statement of reasons under the JRA, part 4.

Therefore, it appears that proposed new sections 955 and 957 make rights, liberties and obligations of individuals dependent on administrative power and that administrative power is not sufficiently defined or subject to appropriate review.

The Department responded:

In response to “the person bringing the proceeding will lose the ability to proceed against that continuing local government.”

In these circumstances, the person will bring the proceeding against the new local government instead of the continuing local government – the person will not lose their right to argue the decision made.

As previously stated, the person bringing the proceeding may be inconvenienced by a change in the parties to the proceeding. However, it is also equally possible they may be benefited by such a change.

It should also be noted that appeals in the Court are by way of hearing anew (s.495 of SPA). This means that the Court ‘stands in the shoes of’ the relevant authority and remakes the decision being appealed against. In addition, the Court appeals do not involve questions about the liability of local governments. Rather, they involve re-deciding matters such as decisions made by local governments on development applications.

While it is correct that decisions under the SPA cannot be reviewed under the Judicial Review Act 1991, section 456 of SPA enables any person to bring a proceeding in the Court for a declaration about a matter done for the SPA. This provision would enable an applicant to seek a declaration about a decision made by the Minister under sections 955 and 957.

Further, the principle underlying the proposed amendments is consistent with the Uniform Civil Procedure Rules 1999, section 69 (the court may include, substitute or remove a party) and by inclusion in SPA ensures no gap in interpretation. 58

Relevantly in this context, the Committee also notes the following comments from the Department in its written brief to the Committee:

The Bill provides for instances where a decision has been made by the continuing local government prior to changeover day and where a person could have (but has not) commenced proceedings in relation to the decision. Section 957 provides that the person can only commence a proceeding against both the continuing and new local government where the matter relates to land within both local government areas. Within 5 business days after service of a proceeding, the continuing local government must ask the Minister to determine either which one, or both, local governments is to be party to the proceeding.

As a result of the submissions that raise concerns about a legal role, the Department of State Development, Infrastructure and Planning will amend the Bill to include appeal provisions which relate to decisions made after changeover day by either the continuing or new local government where the matter relates to land within both local government areas.




These provisions would enable the ‘other’ local government to elect to be a party to an appeal.59

Committee comment

In light of the explanation provided by the Department, together with the proposed appeal provisions foreshadowed by the Department, the Committee is satisfied with the Department’s response in terms of the transitional provisions relating to proceedings.

However, the Committee has made recommendations to amend the Bill’s proposed sections 948 and 952 of the Sustainable Planning Act 2009 in the interests of procedural fairness which would make proposed sections 955 and 957 redundant for those applications that have reached the Information and Referral stage of the Integrated Development Assessment System. (See Recommendation Nos 2 and 4).

3.1.3 Amendment to definition ‘local government related law’ and ‘Local Government Act’

The Committee noted that clause 8 amends the definition of the term ‘local government related law’ for the COBA, while clause 20 amends the definition of the term ‘Local Government Act’ for the LGA to include the Building Act 1975 (BA). The Explanatory Notes at pages 13 and 19 indicate that this amendment was made for the sake of completeness because the BA was inadvertently not included in the definition. The Plumbing and Drainage Act 2002, for example, is already included in the definition.

‘Local government related law’ and ‘Local Government Act’ are terms used to describe laws under which a council or local government performs its responsibilities. An authorised person is appointed under the LGA or COBA to ensure compliance with Local Government Acts and local government related laws respectively.

The Committee raised a concern about the potentially broad consequences of these amendments in its correspondence with the Department. The amendments will permit an authorised person appointed under the LGA or COBA to take action to ensure compliance with the BA. An authorised person has broad powers, for example, under the COBA as an authorised person has the power to enter private property (section 114).

Clause 8 will also permit council to fix a cost-recovery fee for seizing property or animals under a local government related law (COBA, section 99).

As a result of these amendments, administrative power may impact the rights and liberties of individuals. However, it cannot be said that clauses 8 and 20 are sufficiently defined and subject to appropriate review. The Explanatory Notes do not offer any specific reason for these amendments.

In the interests of best-practice public policy development, the Committee is of the view that it is preferable for legislation to be relevant and proportional60 to the problem it seeks to address and for the Explanatory Notes to outline this problem. As currently drafted, it is possible to conclude that these amendments potentially adversely impact on the rights and liberties of individuals.

The Committee sought advice on this issue from the Department, which responded:

Inclusion of the Building Act 1975 (BA) in the list of laws under which a local government performs its responsibilities is proposed simply to make it visible to those referring to the legislation. This is because it is considered an important piece of legislation that contains key responsibilities for local governments.

59 DLGCRR, Correspondence – Attachment 4, 13 September 2013: 5-6. 60 Office of the Queensland Parliamentary Counsel, ‘Fundamental Legislative Principles: The OQPC Notebook’,

2008: 120.



The laws referenced in the definition of ‘local government related law’ and ‘Local Government Act’ are not exhaustive and were never intended to be. The list is only an example of laws under which a local government performs its responsibilities and this is evidenced by use of the words ‘including for example-’ in the definitions.

As the Committee states, the explanatory notes do not provide any specific reasons for the amendments other than for the sake of completeness and that is because there is no underlying problem that needs to be addressed.

Further, the Committee suggests that the amendments have potentially broad consequences in that they will permit an authorised person appointed under the Local Government Act 2009 or City of Brisbane Act 2010 to take action to ensure compliance with the BA. This is in fact already the case and the proposed amendments do not alter current practices.

Please note that the definition of ‘authorised officer’ under the BA means-

(a) a fire service officer under the Fire and Rescue Service Act 1990; or

(b) an authorised person under the Local Government Act 2009 carrying out functions relating to this Act.

In conclusion, it is considered that the proposed amendments do not adversely impact on the rights and liberties of individuals. Amendment of the definitions in this way is considered ‘machinery in nature’ and does not affect stakeholders.

It should be noted there are no new sections of the BA that will be enforced by local government authorised officers as a result of the proposed amendments. 61

Committee comment

The Committee is satisfied with the response from the Department in relation to the proposed amendments to the definition of “local government related law” and “Local Government Act”.

3.2 Institution of Parliament

3.2.1 Proposed transitional provisions for amendments about State planning policy and regional plans - proposed section 948 – delegation of legislative power

The Committee noted that proposed section 948 applies to a development application made but not decided before the section commences. When assessing or deciding the application, an assessment manager or referral agency may apply the sections amended by the Local Government and Other Legislation Amendment Act 2013 (‘the amending Act’) to the extent it considers appropriate.

An assessment manager is an entity prescribed under a regulation for an application (SPA, section 246, Sustainable Planning Regulation 2009, schedule 6). A referral agency is an advice agency or a concurrence agency (SPA, section 252), with the jurisdiction prescribed under the Sustainable Planning Regulation 2009, schedule 7. For example, an assessment manager may be local government, a port authority or the chief executive, while a referral agency may be the Queensland Fire and Rescue Service, the Regulator under the Work Health and Safety Act 2011 or Safe Food Queensland.

Therefore, the assessment manager or referral agency can effectively pick and choose which provisions of the amending Act to apply. In practice, this would appear to be a delegation of legislative power from the Legislative Assembly to an assessment manager or referral agency. This would not appear to be an appropriate delegation of legislative power to an appropriate person.




Another consequence of proposed section 948 is that there is potential for confusion about whether a state planning policy, regional plan or local planning instrument prevails in the event of an inconsistency.

This potential issue of fundamental legislative principle is identified in the Explanatory Notes to the Bill under the heading “Proposed transitional provisions for amendments about State planning policy and regional plans”:

These amendments are proposed and are necessary in order to implement the Government commitments to empower local government, and to have a single, coordinated State ‘voice’ in relation to planning instruments, which enable development and contribute to a ‘four pillar economy’. While it is possible that an applicant may have submitted a development application based on the current hierarchy, an assessment manager should consider the potential impact on an applicant before choosing which hierarchy to apply in development assessment. In practice, it may also benefit the applicant.62

The Committee raised with the Department the potential fundamental legislative principle issue regarding whether it is appropriate for an assessment manager or referral agency to be able to decide what provisions of the amending Act may be applied, and to what extent. The Department responded:

The Bill provides for the single State planning policy (SPP) to prevail over a regional plan, and a regional plan to prevail over a planning scheme, to the extent of any inconsistency.

It also provides discretion for the assessment manager or referral agency to apply either the assessment provisions in place prior to the amendment, or those reflecting the new hierarchy.

In response to the Committee’s concern that “it is not considered appropriate for an assessment manager or referral agency to be able to decide what provisions of the amending Act may be applied, and to what extent. This appears to be a relatively serious issue of fundamental legislative principle”.

Section 317 of SPA enables an assessment manager to give the weight it is satisfied is appropriate to a planning instrument, code, law or policy that came into effect after the application was made but before the decision stage was started. In addition, section 326 enables an assessment manager’s decision to conflict with a relevant instrument if there are sufficient grounds to justify the decision, despite the conflict. This in effect allows the assessment manager to consider other laws and changed circumstances – there is existing flexibility in the decision making process for more weight to be given to one law or policy or planning instrument over another.

The principle behind the Bill’s section 948 is consistent with these existing provisions of SPA.

In addition, this decision is reviewable (either if the decision on a development application is appealed, or through declaration proceedings under s. 456 mentioned above). 63

Committee comment

The Committee has made a recommendation to amend the Bill’s proposed section 948 of the Sustainable Planning Act 2009 in the interests of procedural fairness so that any development application that has been lodged before this amendment comes into effect, is considered by local governments under the same hierarchy of planning instruments that were in place at the date of the application unless the applicant and the council agree otherwise.

62 Explanatory Notes, Local Government and Other Legislation Amendment Bill 2013: 9. 63 DLGCRR, Correspondence, 23 September 2013.



3.3 Explanatory Notes

Part 4 of the Legislative Standards Act 1992 relates to Explanatory Notes. It requires that an explanatory note be circulated when a Bill is introduced into the Legislative Assembly, and sets out the information an explanatory note should contain.

Committee comment

The Committee considers that the provisions in the Legislative Standards Act 1992 have not been met in a clear and precise way in the Explanatory Notes.

In particular, the Committee considers that the Fundamental Legislative Principles section of the explanatory notes does not adequately identify or address all of the major issues concerning fundamental legislative principles in relation to the Bill.

Recommendation 6

The Committee recommends that the Minister for Local Government, Community Recovery and Resilience ensures, that for future Bills, the Explanatory Notes endeavour to clearly identify and address all applicable fundamental legislative principles.

Local Government and Other Legislation Amendment Bill 2013 Appendices


Appendices Appendix A – List of Submissions

Sub # Submitter

1 Fraser Coast Regional Council 2 P&E Law 3 Paul Summers Planning Strategies 4 Sunshine Coast Regional Council – Councillor Green 5 Sunshine Coast Regional Council – Chief Executive 0fficer 6 Sunshine Coast Regional Council – Councillor Wellington 7 Sunshine Coast Regional Council – Strategic Land Use Planning 8 Northbrook Corporation Pty Ltd 9 Local Government Association of Queensland

10 Property Rights Australia

Appendix B – Witnesses appearing at the public briefing held on Wednesday, 11 September 2013

Witnesses

Mr Craig Evans, AM Director-General Department of Local Government, Community Recovery and Resilience

Ms Bronwyn Blagoev Director Policy, Legal and Corporate Support Department of Local Government Community Recovery and Resilience

Mr James Coutts Executive Director Planning Group Department of State Development, Infrastructure and Planning

Mr Stephen Johnston Deputy Director-General Department of Local Government, Community Recovery and Resilience

Ms Natalie Wilde Director Policy and Legislation, Planning Group Department of State Development, Infrastructure and Planning

Mr Logan Timms Team Leader Advocacy Strategic Policy and Intergovernmental Relations Local Government Association of Queensland

Appendix C – Witness appearing at the public hearing held on Tuesday, 1 October 2013

Witness

Mr Godfrey Mantle Managing Director Mantle Group

Statement of Reservation Local Government and Other Legislation Amendment Bill 2013


Statement of Reservation

DESLEY SCOTT MP

SHADOW MINISTER FOR COMMUNITIES, CHILD SAFETY, DISABILITY SERVICES AND MENTAL HEALTH

MEMBER FOR WOODRIDGE

PO Box 15057, City East QLD 4002

[email protected] (07) 3838 6767

Mr Howard Hobbs Chair Transport, Housing and Local Government Committee Parliament House George St Brisbane QLD 4000 Dear Chair, I write to lodge a statement of reservations regarding the Local Government and Other Legislation Amendment Bill 2013. The Opposition is concerned at the lack of any guidelines or criteria upon which the Minister would make a determination as to whether an application for a change to a Local Government boundary can proceed to the Change Commission. There is a lack of clarity in this bill about how a Minister’s determination in this regard would work in practice with the Change Commission also responsible under the Local Government Act 2009 for determining whether an application would be in the public interest. Considering these issues, the Opposition has concerns about some aspects of the bill. However, the Opposition is supportive of the Committee’s efforts to try and resolve the remaining issues around a development application in the Noosa and Sunshine Coast Council areas. Yours sincerely

Desley Scott MP Member for Woodridge

mailto:[email protected]

Documents

Local Government - Queensland Parliament...Local Government and Other Legislation Amendment Bill 2013 Report No. 33 Transport, Housing and Local Government Committee October 2013 Parliamentary