Norman Waterhouse
   
Norman Waterhouse

Normans Briefly

In this issue

Welcome to the July edition of our Local Government Briefly.

We are now just two weeks away from the Norman Waterhouse Annual Local Government Conference. Given the commencement of the legislative regime establishing the Independent Commissioner Against Corruption, all local government employees, especially those with decision making powers, must keep abreast with these changes. Download the program and register NOW!

The annual Normans local government conference is shaping up to be our largest event ever, with three streams running simultaneously at the Adelaide Entertainment Centre.

This will again be a great event for networking with your colleagues from across the sector, with good representation from regional and metropolitan councils.

Thank you to those who have already registered, we look forward to seeing you on the 9th of August.
 

>   Planning and Building – Costs in Section 84 notice appeals
>   Employment – Amendments to the Fair Work Act 2009 (Cth)
>   Environment and Planning – What is “reasonable and expected development” when considering the removal of regulated trees?
>   Local Government – Preachers litigation concludes with upholding of convictions
>   All Decision Makers – Bias in a heritage context

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Planning and Building – Costs in Section 84 notice appeals

We continue to observe growth in the levels of enforcement action taken by councils under the Development Act 1993.

The most common form of enforcement action is the issue of directions under Section 84. 

Consequently, we are also experiencing a rise in the number of appeals against notices issued under Section 84.

These appeals are within a “costs” jurisdiction of the Environment Resources and Development Court, unlike planning appeals.

Very few such appeals actually proceed to a hearing (Amberich Pty Ltd v City of Mount Gambier [2013] SAERDC 12 being a recent notable exception).  Usually, appeals are resolved by the recipient either complying with the direction(s) or regularising the matters complained of.  How costs are dealt with by the Court in such circumstances remains uncertain.

As such, it seems timely to review the principles pertaining to costs, and to pass on some tips as to how councils can best position themselves to achieve certainty in relation to costs.

Costs generally

Where litigation in a costs jurisdiction is finally determined after a contested hearing, the general rule is that the successful party can expect to obtain an order that the unsuccessful party pay its legal costs.  Those costs are then agreed, or “taxed” (assessed) according to the relevant scale of costs.

Costs in appeals settled before trial

When “retrospective” approval is obtained, invariably, the Section 84 notice will have no further work to do, and the directions therein can be withdrawn. Equally, there is no longer any “dispute” for the Court to resolve. 

But what happens about costs in such situations?

Where the subject matter of litigation is removed prior to any trial, the general rule is that each party will bear its own costs, the reason being that the Court is deprived of the opportunity to determine who has been successful and who has not.

However, there are several important exceptions to the general rule.

The first is if it can be said that one party would almost certainly have succeeded if the matter went to trial. These cases will be relatively rare.  It may be that some notices which allege building works without or contrary to approval, and annex photographs of the same, would fall into this rare category.

The second is if it can be said that one party has effectively capitulated or surrendered to the other party.

For example, if – after an appeal is lodged – the council concedes that its notice is invalid and withdraws it (because it was issued by a person who did not hold the appropriate delegation for example, or because there is insufficient evidence of a breach) then the council can expect to pay costs. Conversely, if an appellant admits the relevant breach by voluntarily complying with the direction in the Section 84 notice, then the appellant can expect to pay costs to the council.

Regularisation of the alleged breach by way of “retrospective” approval while maintaining at all times that this is not legally necessary raises a particularly difficult question.  Whether this is a “capitulation” or “surrender” which should ordinarily give rise to a costs order in favour of the relevant council is a difficult question on which there are conflicting judgments.

The third exception is if a party has engaged in “disentitling” conduct. Usually, this will involve consideration about the reasonableness (or unreasonableness) of the party’s actions both before and during, the legal proceedings.

This has particular implications for council litigants, whose actions prior to the issue of the Section 84 notice may come under scrutiny.

For example, if a Section 84 notice is issued without warning – and without giving the person an opportunity to remedy the breach voluntarily – then it may be put that the council has not acted reasonably by issuing the Section 84 notice.  In an appeal scenario, this may be the difference between the council obtaining a costs order and not.

If the opportunity presents, it may also assist to provide a draft Section 84 notice to the intended recipient. If concerns are not raised at the time, that may provide ammunition to argue “unreasonableness” later, particularly if in the course of the appeal the appellant raises technical points or matters which could have been raised earlier.

Above all, it is important to remember that the award of costs is discretionary. Invariably, the Court’s impression of the parties’ conduct will be important. Consideration should be given to actions which may lead to an impression of reasonableness or, conversely, which may put the opposing party in a position where it appears to be acting unreasonably.

Finally, adhering to the above principles will also be useful in the context of negotiation about costs. Usually, it will be much easier to negotiate payment of costs as part of a settlement where there is clear evidence of reasonableness or unreasonableness as the case may be. 

For more specific information on any of the material contained in this article please contact Peter Psaltis on 08 8210 1297 or ppsaltis@normans.com.au.


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Employment – Amendments to the Fair Work Act 2009 (Cth)

On 28 June 2013, the Federal Parliament passed the Fair Work Amendment Act 2013 (Cth), which amends the Fair Work Act 2009 (Cth) (the Act) in various significant ways. While most of the amendments only have implications for ‘national system employers’ and their employees, others affect those employers retained by State industrial relations systems, and their respective employees.

The amendments were vehemently opposed by employer groups, largely because they failed to address various employer concerns identified in the 2012 review of the Act. Some amendments took effect on 1 July 2013, whilst others do not come into force until 1 January 2014.

The more significant changes are summarised below.

Changes to parental leave provisions – Effective 1July 2013

The amendments to the parental leave provisions that took effect on 1 July 2013 relate to concurrent leave, unpaid special maternity leave and transfer of employees to a safe job, as detailed below:

  • Extends the period of unpaid concurrent leave for employee couples from three weeks to eight weeks;
  • Clarifies that an employee who accesses special unpaid maternity leave will not have the 12-month unpaid parental leave period reduced by the number of weeks taken as special unpaid maternity leave;
  • Expands the provisions relating to the transfer of pregnant employees to a safe job to those with less than 12 month’s continuous service, such that a transfer may occur if the opportunity exists and, if an opportunity does not exist, the pregnant employee is entitled to take ‘unpaid no safe job’ leave until the child is born.

Changes to provisions relating to requesting flexible work arrangements – Effective 1 July 2013

The Act now contains an expanded list of circumstances when an employee can request flexible working arrangements from their employer. Previously, such arrangements were only open to employees who were responsible for the care of a child under school age or a disabled child under 18.

Now, any employee with a minimum period of 12 months’ continuous service may request flexible working arrangements for any of the following reasons:

  • Where the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
  • Where the employee is a carer, within in the meaning of the Carer Recognition Act 2010 (Cth);
  • Where the employee has a disability;
  • Where the employee is 55 years of age or older;
  • Where the employee is experiencing violence from a member of the employee’s family; or
  • Where the employee provides care or support to an immediate family or household member because that person is experiencing violence from a member of their family.

Therefore, the provision that was created to assist families with managing work and child care commitments has been expanded to assist a range of other employees with various domestic circumstances.

Employers maintain the discretion to refuse a flexible working arrangement request on ‘reasonable business grounds’. The Act has been amended to include a non-exhaustive list of business grounds that may be considered reasonable, including where the requested working arrangements would:

  • Be too costly for the employer;
  • Result in a need to alter working arrangements for existing employees, for which the employer considers impractical or not capable of implementing;
  • Require the recruitment of new employees;
  • Likely result in a significant loss in efficiency or productivity;
  • Likely have a significant negative impact on customer service.

It is important for ‘national system employers’ to be aware of the expansion of the categories of employees to whom flexible work arrangements now apply, so that prompt and effective consideration can be given to any request made. We can, of course, provide advice in the evaluation of such a request should your business receive one.

Changes to consultation requirements – Effective 1 January 2014

At present, ‘national system employers’ are bound by the Model Consultation Term (the Term). If the Term is not expressly included in a relevant enterprise agreement, the Term is read into the enterprise agreement by the Fair Work Commission (FWC) as part of the approval process. The Term also applies to those ‘national system employers’ that engage staff pursuant to a modern award.

From 1 January 2014, the Act will be amended to note that the Term applies in circumstances involving, first, significant workplace change, and secondly, ‘a change to...regular roster or ordinary hours of work’. Whilst the Act has always referenced workplace change, the amendment will specifically note changes to rosters and ordinary work hours. Therefore, employers will be required to consult employees about proposed changes to their roster or ordinary hours of work, which includes providing relevant information to employees, engaging with employees to obtain their views and consideration of those views.

In practical terms, it is likely that employers would have applied the existing Term in this way. However, it is worth noting that, from 2014, a change in roster or work hours, no matter how insignificant, will trigger the application of the Term.

Increased power to FWC to deal with workplace bullying – Effective 1 January 2014

One of the most significant amendments to the Act will be the power of the FWC to deal with bullying complaints.

The new provisions apply to ‘employees’ and ‘employers’, as distinct from ‘national system employees’ and ‘national system employers’. The Federal Government, in enacting this provision, has relied on its Constitutional ‘external affairs’ power, specifically, Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights. Academics aside, this means that any employee, whether captured by the Act or State industrial relations legislation, may be able to apply to the FWC to have a workplace bullying complaint dealt with, subject to the details below.

Whilst this is a significant change for ‘national system employers’, those employers retained in the State system, such as Local Government entities, must also be mindful of this new avenue available to employees.

Any employee ‘who reasonably believes that he or she has been bullied at work, may apply to the FWC for an order’. There are various points to note, including:

  • The employee must be bullied at work;
  • Bullying is repeated unreasonable behaviour toward an employee or group of employees that creates a risk to health and safety;
  • The workplace must be a ‘constitutionally-covered business’ (which is defined to mean a ‘person conducting a business or undertaking’ within the meaning of the Work Health and Safety Act 2011 (Cth)) and is, among other things, a ‘constitutional corporation’.

The relevance of a business’ constitutional character is an issue that those within the Local Government will be familiar. It is a matter than remains largely unresolved and, we say, one that may ultimately need to be considered by the FWC should an employee of a Local Government or State-run entity request the FWC’s involvement in a bullying matter.

The orders that may be made by the FWC in circumstances where a complaint is lodged are quite broad, as the FWC can ‘make any order it considers appropriate’. The Explanatory Memorandum to the Bill provides a list of suggested orders, such as issuing orders to individuals to cease behaviour, providing additional support/training, and reviewing an employer’s policy and checking compliance with that policy.

It remains to be seen how this new provision will be used by employees.

Other amendments that come into effect from 1 January 2014 impact upon penalty rates in modern awards, union right of entry into workplaces and FWC’s arbitration powers in respect of general protection applications. We will delve into these amendments in our next Briefly.

If you have any queries about the abovementioned amendments, or any other changes arising from the Fair Work Amendment Act 2013 (Cth), we encourage you to contact a member of the Employment Team for further information and assistance.

For more specific information on any of the material contained in this article please contact Amanda Green on 08 8217 1306 or agreen@normans.com.au, or any other member of the Employment and Industrial Relations Team.


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Environment and Planning – What is “reasonable and expected development” when considering the removal of regulated trees?

Savoy Developments Pty Ltd v Town of Gawler [2013] SAERDC 32 concerned a proposal for the removal of two regulated trees (River Red Gums) within a Residential Zone.

The case is the first consideration by the Environment Resources and Development (ERD) Court of the provisions introduced by the Ministerial Regulated Trees DPA which came into interim effect on 17 November 2011.

The trees were located on land which was the subject of an approved but not wholly implemented subdivision. The relevant allotments had originally been designed to accommodate the trees’ retention together with residential use.

Attributes to determine if trees provide aesthetic or environmental benefit

The Court first considered the four “attributes” of Regulated Trees Objective 2 which are relevant in determining whether a regulated tree provides important aesthetic or environmental benefit and should be preserved. It held that the trees demonstrated two of the relevant attributes and concluded that they provided important aesthetic and environmental benefit.

This analysis is interesting for its approach to the “threshold” for protection of regulated trees.  Among other things, the Court appears to have concluded that more than ordinary support for native fauna must be displayed by a regulated tree before it will merit protection on that ground.

Reasonable and expected development

The Court then went on to consider Regulated Trees PDC 2, which establishes a presumption in favour of retention unless “it can be demonstrated that one or more of the specified tests applied”.

The primary dispute related to the tests of whether the retention of the trees (either individually or collectively) would result in circumstances where “development that is reasonable and expected” would “not otherwise be possible”.  It was agreed that a dwelling could be constructed on the proposed allotments affected by the trees. However, the experts differed in their views as to what type of development might be “reasonable and expected” on the subject lots.

The appellant’s main argument was that while there was sufficient land area to build a dwelling on each lot, an “off the shelf” design was unlikely to fit taking into account the requirement to keep the area under the canopies of the trees clear of dwellings so as to minimise risk.  It argued that the cost of a purpose-designed dwelling was significantly greater than an “off the shelf” design and therefore, it was unreasonable to require a future owner to incur the costs associated with a site-specific design solution.

The Court said the question of what is “reasonable” development, must start with what can be achieved “as a right”.  As each lot could support a dwelling which would satisfy the conditions for “complying” development and reasonable standards of residential use and function, “reasonable” development would be possible.

In terms of whether it would be unreasonable to “require” someone to construct a purpose-designed dwelling, the Court held:

“...construction costs resulting from the need to build a site specific design solution having regard to the constraints imposed on the land by the subject trees may, in some circumstances, come into consideration of what is “reasonable and expected”. However, that is not the case in this instance.

The land available for a new dwelling is not so constrained as to require any obviously unusual dwelling shape or form.

I am not satisfied that only a “custom” designed house could be located on the subject lots or that a “project” home could not be modified to suit the available building area.”

In the event that the Court was wrong about the relevance of construction costs, it said it had not heard any evidence of an expert nature regarding market expectations and dwelling costs and what might “reasonable and expected” and what costs might actually be incurred (each party had chosen to rely on the general expertise of town planning experts who, in turn, had made enquiries of certain builders).

The Court concluded that it was unclear what the market might reasonably expect to pay for a dwelling on the lots and what the market might be required to pay for a dwelling.

The case that a development which might be “reasonable and expected” was not possible was found to have not been made out, and that the removal of the two regulated trees was not sufficiently supported by the relevant provisions of the Development Plan.

This case is a valuable precedent on the interpretation of the regulated tree provisions and in particular what is “reasonable and expected” development.

For more specific information on any of the material contained in this article please contact Jacqueline Plant on 08 8210 1230 or jplant@normans.com.au.


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Local Government – Preachers litigation concludes with upholding of convictions

The story of the Adelaide City Council’s proceedings against the Rundle Mall preachers began four-and-a-half years ago, with commencement of prosecution proceedings in the Magistrates Court against four individuals preaching in Rundle Mall without the permission under the Council’s By-law No. 4—Roads (the by-law).

From these humble beginnings, the matter eventually progressed to a High Court challenge, regarding the Constitutional validity of the by-law based around arguments founded in the implied freedom of political communication. Paul Kelly and Dale Mazzachi of Norman Waterhouse represented the Council in all proceedings, and the Council ultimately secured an important win before the High Court which affirmed the validity of by-laws and other legislative instruments throughout the nation.

While the Preachers’ defeat in Canberra was the end of the substantive legal arguments, there still remained one element of the proceedings which required attention — the resolution of the charges levelled against the Preachers arising out of those initial Magistrates Court proceedings. The charges (which, as we reported in our August 2010 briefly, the preachers were found guilty and convicted) were the subject of an appeal which had essentially remained dormant while the question of the validity of the by-law progressed upwards through the courts.

This appeal by the Preachers was recently dismissed by Justice Vanstone in the Supreme Court of South Australia case Bickle & Ors v Corporation of the City of Adelaide [2013] SASC 115. The dismissal occurred due to the fact that all grounds of the appeal (which was devised before the High Court decision) were rendered unarguable by the High Court’s finding that the by-law was valid. Some last-minute arguments proffered by the Preachers after the High Court decision were also emphatically dismissed by the Supreme Court. Ultimately, based on the Council’s success in the High Court, the Supreme Court was prepared to find that the Preachers appeal against their convictions was foredoomed to fail.

The series of Preachers-related litigation has now concluded, with all avenues in respect of all elements of the proceedings having been exhausted. The result is that Local Government now has an important High Court precedent affirming the extent of council by-law making powers.  This recent judgment again confirms the importance of Section 667(1)(9)(XVI) of the Local Government Act 1934, the ‘convenience, comfort and safety power’, as an invaluable by-law making tool for South Australian councils.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on 08 8210 1221 or dmazzachi@normans.com.au.


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All Decision Makers – Bias in a heritage context

All decision-makers, both judicial and administrative, must follow certain rules or their decisions will be susceptible to challenge.  The content and scope of such rules differs according to the circumstances, but one fundamental rule is the rule against bias.

This requires that a decision-maker must not be biased or perceived to be biased when making a decision. The recent case of Hamilton Hill Pty Ltd v Minister for Environment & Conservation (No 2) [2013] SAERDC 29 concerned an allegation of perceived bias.

Background

In our October 2012 Briefly we discussed the case of Hamilton Hill Pty Ltd v Minister for Environment & Conservation [2012] SAERDC 56 (see here), in which the owners of a dilapidated State Heritage listed property known as Bells’ Plumbers Shop appealed against a protection order under the Heritage Places Act 1993.

The earlier decision was concerned with whether the protection order should be set aside because the appellants (the recipients of the order) were unable to comply with the order at that time.  The appellants claimed that the property had been sold to a Panamanian company and that they had no right of entry. No evidence was given as to the sale, nor whether the appellants could lawfully comply with the protection order despite the sale.

Judge Cole declined to quash the order. In her judgment Her Honour stated that:

“The appellants cannot benefit from their deliberate and dishonourable action in seeking either to place the ability to comply with the protection order out of their power, or to give the appearance of having done so.”

[underlining added]

At that time, only two of twelve grounds of appeal had been heard.  The matter had (and has) some way to go.

The appellants subsequently made an application for Judge Cole to recuse (that is, remove) herself from further hearing of the action.  They argued that Her Honour’s judgment gave rise to the perception of bias, particularly by use of the word “dishonourable.” 

What is perceived bias?

Perceived bias arises, in the case of a judge, when a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question they are required to decide.

Did Her Honour demonstrate a perceived bias?

Judge Cole held that no fair-minded lay observer would consider her judgment to demonstrate perceived bias.

Her Honour held that use of the word “dishonourable” applied only to the sale and transfer of the land.  It did not extend to the second appellant, Mr March, personally nor affect his credit as a witness in any future hearing.

Her Honour further observed that, in any event, the matters described as “dishonourable” would not have any further bearing on the hearing.  The grounds of appeal yet to be heard would not revisit the sale and transfer.

Application to councils and their officers

As noted earlier, the rule against bias also applies to non-judicial decision makers. Perceived bias is an often utilised ground of appeal in challenging government decisions, whether at the local, State or federal level.

This case serves as a timely reminder to all councils and their officers.  Challenges on the basis of perceived bias are inevitably lengthy and costly, and will often involve the person alleged to be biased giving evidence in court. It also goes without saying that the decision-maker’s reputation is likely to suffer if a claim is successful.

A strategy commonly adopted in larger councils is “when in doubt, get out”.  If there is another person who is insulated from any possible perception of bias who can make the decision, perhaps the decision should be left to them.

This is more difficult to implement in smaller councils.  The local community is smaller and councillors and staff often have diverse roles within the community quite separate from their council employment (thus giving greater scope for biases to be perceived).  Further, the pool of other decision-makers can be quite small and resource-poor.

When you are in doubt, but cannot readily get out, it may well be prudent to seek legal advice.

This case also emphasises the fact that perceptions of bias can arise from pre-decision conduct on the part of the decision-maker. Decision-makers should take care to conduct themselves in a diplomatic, respectful and measured manner. It is prudent to avoid using inflammatory language or make value judgments of individual applicants or third parties, and to refrain from being unnecessarily critical.

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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