Legislative Update: Key changes for Property, Infrastructure & Asset Management TeamsMAY 2021
This Article provides a Legislative Update: Key changes for Local Government Property, Infrastructure & Asset Management teams.
At a glance:
- Amendments to the Retail and Commercial Leases Regulations 2010 (Regulations) commenced on 22 April 2021 which provide an exemption for certain Council leases to community groups and not-for-profit organisations.
- The Statutes Amendment (Local Government Review) Bill, containing the most significant changes to the functions of Local Government for many years, is slowly making its way through Parliament.
- The Planning, Development and Infrastructure Act 2016 (PDI Act) will amend the Local Government Act 1999 (LGA) and affect the circumstances where Councils issue section 221 authorisations and/or section 222 permits.
Retail and Commercial Leases Regulations 2010
On 1 July 2020, section 4 of the Retail and Commercial Leases Act 1995 (RCLA) was amended to exclude leases from the operation of the RCLA where a Council granted a lease to a ‘prescribed class of lessees’. At the time the amendments came into force, no class of lessees was prescribed.
The Regulations have now been amended to provide that leases to the following classes of lessees will be exempt from the application of the RCLA where the lessor is a Council:
- a body registered under the Australian Charities and Not-for-profits Commission Act 2012; or
- an entity that is not carried on for the purposes of profit or gain to its individual members and that is, by the terms of its constitution, prohibited from making any distribution, whether in money, property or otherwise, to its members; or
- a lessee who uses the leased premises for the provision of health, welfare, community, cultural, sporting or recreational services on a non-commercial basis.
This exemption from the RCLA will relieve some of the financial and administrative burdens previously placed on Councils and community organisations (for example, the requirement for the lessee to obtain an Exclusionary Certificate to exclude the minimum 5 year term).
The exemption does not apply where the rent exceeds $50,000 per annum (exclusive of GST).
The amendments commenced on 22 April 2020.
Statutes Amendment (Local Government Review) Bill
The Statutes Amendment (Local Government Review) Bill (Bill) was introduced into Parliament on 17 June 2020. The Bill follows the Reforming Local Government in South Australia Discussion Paper and proposes to amend many fundamental aspects of Local Government.
Some of the notable proposed reforms include:
- Changes to Council representation including a cap on elected members and a directly elected mayor (abolition of ‘chairperson’);
- Implementation of a new conduct management framework for Council members;
- Introduction of ‘information briefing sessions’ and the removal of ‘informal gatherings’;
- New approach to community engagement with the inclusion of a community engagement charter which, along with a Council adopted community engagement policy, will govern public consultation;
- Removal of the ability for Councils to determine rates based on site value; and
- The repeal of special provisions for food trucks.
The Bill has been subject to numerous amendments during its first passage through Parliament. It was returned to the House of Assembly on 12 May 2021. Some of the most recent amendments include:
- A cap of 13 Council members, rather than the 12 that was initially proposed;
- The annual report is to include the amount of legal costs incurred by a Council in the last financial year; and
- Retaining ministerial oversight to revoke the community land classification for all community land, regardless of the size and use of the land.
Wallmans Lawyers will be following the progress of the Bill and examining the full implications of this broad-ranging reform. We look forward to assisting Councils to adapt to the changes the Bill ultimately brings.
Amendments to sections 221 and 222 of the LGA under the PDI Act
“Is a section 221 authorisation or section 222 permit required where there is a development consent for the relevant activity?” Councils and members of the public have grappled with this question for years. Amendments to the LGA under the PDI Act will clarify what the law requires in such a situation.
Schedule 6, Part 7 of the PDI Act amends section 221 of the LGA to confirm that a section 221 authorisation will not be required for an alteration to a road, if the alteration is approved as part of a development authorisation under the PDI Act.
However, an ‘accredited professional’ (a term which encompasses various experts and includes the role that was previously a ‘private certifier’ under the Development Act 1993), can only grant a development authorisation allowing an alteration to a road ‘with the concurrence of the council’.
Similarly, another relevant authority assessing a development application under the PDI Act may only grant an approval which authorises an alteration to a public road after consultation with the Council.
Amendments will also be made to section 222 of the LGA to clarify that a separate permit under that section is not required to use a public road for a business purpose, where the use is approved as part of a development authorisation under the PDI Act (subject to Council’s involvement in the authorisation process in the same fashion as under the amended section 221).
It should be noted that although Phase 3 of the PDI Act commenced operation on 19 March 2021, these amendments to the LGA have not yet come into force.
Our team at Wallmans will keep Councils updated on the commencement of these amendments. However, Councils should be aware that the amendments are on the way.
If you have any queries or require any advice regarding these changes please contact our Property Team (details below).
We take this opportunity to congratulate our leading Property, Construction and Infrastructure team for their continued recognition in the Doyles Guide 2021 of Leading Property & Real Estate Lawyers and Firms (SA).
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Social media affords Councils an instant channel to engage with local community –promoting events, Council activities and services, discussion on consultation processes, emergency management and the ability to reach demographic sectors who are out of the traditional touch points. Social media is now more relevant than ever to the communities in which Councils service.
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Join our experts, IP & Social Media Partner, Paul Gordon and Local Government Workplace Partner, Michael Kay as they highlight the practical application of these laws within the Local Government context.
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The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.