Norman Waterhouse
   
Norman Waterhouse

 

 

Normans Briefly

In this issue

Welcome to the July edition of our Local Government Briefly.

>   Norman Waterhouse is exceptionally pleased to reveal the Keynote and Plenary speakers for this year’s Local Government Conference.
>   Employment – Superannuation guarantee now 9.50%
>   Local Government – SACAT to begin absorbing jurisdictions
>   Local Government – Public sector management shakeup – will it affect Local Government?
>   Town Planning & Building and Construction – Demolition of incomplete buildings
>   Regulatory - Revision of the food standards code
>   Town Planning – Privacy and overlooking from balconies

Norman Waterhouse is exceptionally pleased to reveal the Keynote and Plenary speakers for this year’s Local Government Conference.

Keynote: Planning Reform
We warmly welcome back highly regarded Norman Waterhouse alumnus Brian Hayes QC, in his capacity as the Chair of the Expert Panel on Planning Reform.  Mr Hayes will highlight planning reforms which the Expert Panel foresees for South Australia.

Plenary Session: Direction of the South Australian Economy and the impact for Local Government
We are thrilled to be joined by the Hon. Martin Hamilton-Smith MP, Minister for Investment and Trade, Minister for Defence Industries and Minister for Veteran Affairs who will chair the Plenary Session.

Don’t miss this outstanding opportunity, register now.


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Employment – Superannuation guarantee now 9.50%

The second of the superannuation guarantee increases scheduled by the former Labor Government has occurred, with the minimum contribution rising from 9.25% to 9.50% on 1 July 2014.

The Coalition Government’s original intent was to freeze the superannuation guarantee at 9.25%. An attempt was made late last year to implement this freeze – well ahead of 1 July 2014 – but this attempt, which was tied to the original mining tax repeal attempt, was thwarted in March 2014. Now that the 1 July 2014 increase to 9.50% has occurred, the present Coalition Government position is that the superannuation guarantee will be ‘frozen’ at 9.50% for three years, with annual increases resuming on 30 June 2018 (with an increase to 10.00%). However, this proposal is again tied to renewed mining tax repeal effort, which has faced difficulties in Federal Parliament and remains unpassed during the present Parliamentary winter break.

In any event, the bottom line is that, since 1 July 2014, employers must make superannuation contributions of at least 9.50% in respect of all employees. This will be the case for the entirety of the 2014/15 financial year. The position in respect of future financial years remains unclear.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 08 8210 1253 or sdasan@normans.com.au.



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Local Government – SACAT to begin absorbing jurisdictions

The development of the South Australian Civil and Administrative Tribunal (SACAT) will have a significant impact on the way in which complaints and disputes involving councils will be externally adjudicated.

Amongst other matters, we have previously explained that the SACAT will become responsible for managing areas of law that are currently spread around various other Courts and Tribunals. However, while the SACAT has been formally established, no jurisdictions have as yet been absorbed by the SACAT.

This absorption of jurisdictions will be brought about by various pieces of legislation and is presently anticipated to take two years. The first such piece of legislation – the Statutes Amendment (SACAT) Bill 2014 (Amendment Bill) – has been introduced into State Parliament. Relevantly for Local Government, the Amendment Bill seeks (amongst other things) that the SACAT will absorb the functions exercised by the District Court Administrative and Disciplinary Division under the Freedom of Information Act 1991 (SA) (FOI Act).

Currently under the FOI Act, a person who disagrees with an FOI determination of a council may first seek a review from the Ombudsman. Subsequently, the person may then seek permission to appeal to the District Court on a point of law arising from the review by the Ombudsman. The Amendment Bill seeks to entirely transfer the role of the District Court under the FOI Act to the SACAT. If the Amendment Bill is passed, it is likely that the handover of FOI jurisdiction will become effective mid-2015.

Certain other jurisdictions outlined in the Amendment Bill which do not affect Local Government will be transferred to the SACAT, potentially as early as September 2014.

Future legislation is likely to bring other functions of the District Court Administrative and Disciplinary Division into the remit of the SACAT. We will keep Local Government up to date with all progress regarding the development of this important tribunal.

For more specific information on any of the material contained in this article please contact Paul Kelly on 8201 1248 or pkelly@normans.com.au.



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Local Government – Public sector management shakeup – will it affect Local Government?

In a policy document entitled Building a Stronger South Australia: A Modern Public Service, the State Government has outlined proposed changes to the way the State public sector is governed and structured. One key element of the proposals is the disbandment of all State Government boards and committees, excepting those that can demonstrate they have an essential purpose that cannot be achieved through other means. The stated purposes of this change include cutting ‘red tape’, and improving public input in State Government policy and decision-making.

The abolition of boards and committees would need to be replaced with new means of interacting with the State Government. It is envisaged that more direct consultation (including by electronic means) will replace the roles performed by many boards and committees. The proposal is presently in its infancy, and its full realisation will require legislation to remove statutorily required boards and committees.

Councils interface with the State Government on a number of issues through boards and committees. Many entities with which councils have regular dealings are comprised of boards and/or committees. These include the Local Government Finance Authority, the Dog and Cat Management Board, Natural Resource Management Boards, the South Australian Heritage Council, the Adelaide Park Lands Authority, Zero Waste SA, the Building Advisory Committee, the Coast Protection Board and others.

However, details of the proposal are presently very few. In addition, it seems that the predominant purpose of the reforms is to reorganise public interaction with State Government (as opposed to Local Government interaction with State Government).

At this very early stage of the proposal, it is unclear whether any boards or committees which interact with Local Government will be abolished, nor is it clear whether replacement avenues will be more or less effective than the boards and committees model. Norman Waterhouse will keep the sector informed if and when legislative measures are advanced which may affect Local Government in this regard.

For more specific information on any of the material contained in this article please contact Felice D’Agostino on 8210 1202 or fdagostino@normans.com.au.



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Town Planning & Building and Construction – Demolition of incomplete buildings

In City of Playford v Benke [2014] SAERDC 21 Norman Waterhouse successfully sought orders under Section 55 of the Development Act 1993 (Act) that an incomplete detached dwelling be demolished. 

Development approval was obtained for the two-storey dwelling in January 2007, and construction commenced in January 2008.  As at the time of hearing (mid 2014, some six years later), the following works were outstanding:

  • weather-damaged particle board flooring needed to be removed and replaced;
  • damaged eaves linings needed to be removed and replaced;
  • missing lintels needed to be installed;
  • termite protection needed to be applied and installed;
  • substantial rectification work identified by consulting engineers, including the replacement of some of the framework and joists, needed to be implemented;
  • existing external cladding needed to be checked and in some cases re-nailed or replaced, where damaged;
  • external cladding needed to be completed;
  • once completed, external cladding needed to be texture coated;
  • roofing needed to be completed, including flushing;
  • windows and doors needed to be installed;
  • first fix electrical and plumbing needed to be done;
  • walls needed to be insulated;
  • internal linings needed to be installed;
  • second fix electrical and plumbing, and cabinetry work, needed to be done;
  • internal painting needed to be done;
  • floor coverings needed to be installed; and
  • landscaping needed to be done.

In short, a slab had been poured and most if not all wall and roof framing had been constructed.  Most roof sheeting had been installed, as had most “blue board” external cladding.

Complicating the matter were the following factors:

  • the 2007 approval was for a steel-framed dwelling, whereas the as-constructed dwelling was timber-framed;
  • the as-constructed dwelling did not comply with the timber framing code (Australian Standard for Residential Timber Framed Construction AS 1684) nor with other parts of the National Construction Code;
  • the as-constructed dwelling did not match the plans and elevations approved in 2007;
  • although a later planning consent was obtained in November 2012 for essentially what was built, and a later building rules consent shortly prior to the hearing in 2014, the two consents were not consistent with either each other nor, in some respects, with the as-built dwelling, and no development approval was issued.

After two years of trying to negotiate a satisfactory completion of the dwelling (between July 2011 and July 2013), the City of Playford initiated Section 55 proceedings.

What does Section 55 do?

Section 55 enables a ‘relevant authority’ (which includes a council) to seek orders from the ERD Court in instances where an approved development has been substantially commenced but not substantially completed.

Those orders include:

  • removing or demolishing any building;
  • reinstating, so far as is practicable, any land or building to the state or condition that it was in immediately before the commencement of the development;
  • extending the period within which the development may be completed;
  • the performance of any work; and
  • the making of any application for an appropriate development authorisation.

Section 55 confers ‘step-in’ rights upon a successful authority to perform any works ordered by the Court, if the order is not complied with. The authority can then recover the costs of performing these works from the defaulting party.

The Court’s decision

Her Honour Senior Judge Cole ordered that, under the circumstances, the dwelling should be demolished. This was based on:

  1. the length of time that had passed since the original approval for the Dwelling had lapsed (i.e. January 2010);
  2. previous warnings from the Council that demolition was a possible outcome;
  3. a substantial lack of progress in undertaking the remaining works to complete the dwelling;
  4. a lack of any current development approval;
  5. demonstrated failures of the relevant builder and supervisor to adhere to comply with the Act; and
  6. concerns for public safety and amenity.

Her Honour recognised the severity of such orders, particularly with respect to the likely financial detriment to the respondents.

Thoughts for councils

Section 55 proceedings are a useful device to encourage the completion of an unfinished building. 

Usually, the mere threat of being sued is sufficient to cajole tardy developers into undertaking the outstanding works.  That said, there was a general perception that demolition was never a real possibility. Now, the Court’s recent decision makes it plain that there are circumstances where demolition will be ordered.

For more specific information on any of the material contained in this article please contact David Billington on 8210 1263 or dbillington@normans.com.au.



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Regulatory - Revision of the food standards code

Food Standards Australia New Zealand (FSANZ) is a bi-national government agency that operates under the Food Standards Australia New Zealand Act 1991. FSANZ develops and administers the Australia New Zealand Food Standards Code (the Code). Relevantly for councils, the Code sets the standards that proprietors of food businesses and foodhandlers must comply with when operating food businesses in South Australia.

In 2008, the case of Christine Tumney (NSW Food Authority) v Nutricia Australia Limited [2008] NSWSC 1382 (Nutricia case) highlighted problems with the Code related to enforcement and applicability. The judgment also brought to light some problems with the drafting of the Code (which existed at the time) which have implications for the food regulatory system, particularly in New South Wales. 

In light of the Nutricia Case, FSANZ released Proposal P1025 and a revised draft of the Code (Draft Code). The revision is aimed at clarifying the primary role of food laws as well as the application and enforcement of the Code in different states and territories. The Draft Code also contains less significant changes, including the structure of the Code and the modification or addition of definitions.

The FSANZ proposes a modernisation of the Code’s presentation without making substantial changes to provisions that impose requirements or obligations. This is to be done by:

  • presenting the Code as a single instrument;
  • providing clear requirements that impose an obligation in relation to the conduct of food business, or relating to the composition of food or labelling; and
  • providing for greater reliance on definitions already present in the relevant legislations.

We note that some of the proposed changes are arguably unnecessary in South Australia, given the way in which the Code has been adopted in this State under the Food Regulations 2002, but the additional simplification, consolidation and clarity will no doubt be welcomed by both councils and food businesses alike.

Councils should note that the main operative provisions in Chapter 3 of the Code, incorporating the food safety standards, have not been revised and are incorporated in their current form.

The initial call for submission was released in 2013. From the first round of public consultation, a significant number of submissions identified the technical issues associated with the Draft Code. In July 2014, FSANZ released a second call for submissions closing on 12 September 2014. The relevant documents are available online at http://www.foodstandards.gov.au.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au.



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Town Planning – Privacy and overlooking from balconies

One of the difficult tasks facing planning authorities (including councils) when considering residential development proposals is assessing the impact of overlooking into adjoining properties. How much overlooking, if any, is acceptable?

The recent case of Lelliott v City of Holdfast Bay [2014] SAERDC 14 provides an opportunity to recap the relevant principles.

The facts in Lelliott

Mr Lelliott sought approval from the City of Holdfast Bay (Council) to vary a planning condition attached to his approval for a two-storey dwelling. The condition required 1.7 metre high louvered screens along the upper and lower level balconies. 

The balconies had a north-westerly aspect (designed to take in ocean views) and overlooked adjoining properties to the north and west. This was due to the sloping topography of the locality and the proximity of neighbouring dwellings. The louvered screens would have blocked not only views of the neighbours, but also the ocean views.

Mr Lelliott’s variation application sought to replace the louvered screens with a horizontal screen 600 mm wide at a height of 700 mm above the balcony floor level. The horizontal screens extended beyond the associated balconies for distances between 150 mm to 1.3 metres. Two screens were proposed for the upper balcony, and one for the lower.

The horizontal screens facilitated the ocean views, and reduced overlooking for people seated on the balcony. However, some direct overlooking would remain possible if people stood against the balustrade.

The Council’s development plan sought the minimisation of direct overlooking from upper level habitable rooms and balconies.

The Council’s DAP refused Mr Lelliott’s variation application on the basis it would result in ‘unacceptable levels overlooking with respect to adjoining properties’. Mr Lelliott appealed to the ERD Court.  A number of neighbours were joined to the appeal, and ended up being the main protagonists after Mr Lelliott proposed an amended scheme which was acceptable to the Council.

‘An unreasonable degree of overlooking’

The Court adopted the approach applied in Mathwin v City of Holdfast Bay [2009] SAERDC 77, namely:
 

  • a qualitative planning assessment is required as to whether the degree of overlooking is unreasonable, having regard to the context and specific circumstances of a particular case;
  • one must balance the legitimate desire to enjoy panoramic views against the rights of neighbours not to have their private open space overlooked to an unreasonable extent; and
  • where a development plan seeks to ‘minimise’ overlooking, overlooking needs to be reduced to “an acceptable level, having regard to the relevant objectives and principles of the plan”.  That acceptable level need not be, and often will not be, the absolute minimum level (see also City of Burnside v City Apartments Pty Ltd [2004] SASC 294).

The Court upheld Mr Lelliott’s appeal. It held that the proposed screens would minimise overlooking to a reasonable and acceptable level.  Overlooking of neighbouring rooms and open space would be almost eliminated when people were sitting on the balcony.

Although some overlooking from people standing against the balustrade would still arise, it was considered acceptable in this case.

Points to remember from Lelliott

If a development plan seeks to minimise overlooking (and the majority of development plans do), the planning assessment will usually be limited to reducing unreasonable overlooking to an acceptable level.

This assessment requires:

  1. consideration of the development plan as a whole (policies which seek the maintenance of natural views from private land will need to be carefully balanced against policies which address overlooking); and
  2. a qualitative planning assessment based on the existing circumstances and context of the subject land in the locality.

Each case of overlooking will be different. The expectation of what constitutes reasonable privacy in foothills or seaside localities with sloping topography and multi-level buildings taking advantage of views will be considerably different to what is reasonable in ‘traditional’ residential areas with flat land, predominant single storey built form, and large backyards.

Furthermore, this assessment also requires an understanding of how the space or area from which the overlooking occurs is intended to be used.

For more specific information on any of the material contained in this article please contact John Watson on 8210 1245 or jwatson@normans.com.au.



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