Norman Waterhouse
   
Norman Waterhouse

Normans Briefly

In this issue

Welcome to the June edition of our Local Government Briefly.

We are pleased to announce the firm's most recent promotions which have taken place as a result of strategic planning and reflect the expertise of these key practitioners from within the Local Government team. Congratulations to:

David Billington – Partner, Environment and Planning
Lisa Hubbard – Senior Associate, Property Infrastructure and Development
Dale Mazzachi – Senior Associate, Governance and Regulatory Services
James Nicolson – Associate, Environment and Planning
Peter Varacalli – Associate, Property Infrastructure and Development

The promotions come at the same time as our launch of the full program for the Norman Waterhouse Annual Local Government Conference.

Join us on Friday, 9 August 2013 at the Adelaide Entertainment Centre.

Don't miss the opportunity to develop your knowledge at the Norman Waterhouse Local Government Conference, where you'll hear the latest updates on the most important legal issues for councils.

Click here to view the program.

Click here to register.

>   Employment – Increased superannuation contributions: Are you ready?
>   Construction – The South Australian Supreme Court hands down its first decision on the Building and Construction Industry (Security of Payment) Act 2009 (SA)
>   Local Government – Landmark $200,000 fine for Food Act breaches
>   Construction - Are your contractors licensed?
>   Local Government – Burial and Cremation Act 2013 – What everyone is dying to know!
>   Local Government – The Public Health Act 2011 is now in full effect
>   Property, Infrastructure and Development – When is an easement not an easement?
>   Development – Changes to directors' liability & increased penalties
>   Development and Town Planning – New processes and powers for urban renewal precincts
>   Guest Author: Sally Powell, Bedford CEO: DisabilityCare – funding for our future

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Employment – Increased superannuation contributions: Are you ready?

As previously highlighted to our Briefly readership, compulsory employer superannuation guarantee contributions will soon increase from 9% to 9.25%.

This increase will take effect on 1 July 2013. It is the first increase of seven to the superannuation guarantee contribution, which will ultimately require employers to make contributions of 12% of an employee’s ordinary time earnings.

All employers must ensure that the new rate of 9.25% is adhered to throughout the 2013/14 financial year.

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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Construction – The South Australian Supreme Court hands down its first decision on the Building and Construction Industry (Security of Payment) Act 2009 (SA)

On 3 June 2013, Justice Blue of the Supreme Court of South Australia handed down the Court’s first judgement on the Building and Construction Industry (Security of Payment) Act 2009 (SA) (SOP Act) in the case of Built Environs Pty Ltd v Tali Engineering Pty Ltd & Ors [2013] SASC 84.

The security of payment legislation in other jurisdictions in Australia has been highly litigated since its introduction in those jurisdictions. The SOP Act is almost identical to the New South Wales security of payment legislation.  In its judgement the Court considered a number of decisions of the New South Wales courts, confirming our view that decisions from New South Wales would be used as guidance in South Australia.

The case related to works completed for the construction of the new Woolworths Walkerville Shopping Centre (the Project).  Built Environs was the head contractor for the Project. Tali was appointed by Built Environs as the structural steel subcontractor for the Project.  The subcontract between Built Environs and Tali separated the work to be completed by Tali into three separable portions and set completion dates for each portion.  The subcontract provided for Built Environs to claim liquidated damages for late completion of each of the portions and for any liquidated damages to which Built Environs was entitled to be set off against progress claims by Tali.

Tali submitted nine progress claims to Built Environs under the subcontract.  In its ninth progress claim, Tali claimed that the total value of work it had completed to date was $1,238,836.30. Tali deducted amounts previously certified of $656,850 and claimed a net amount of $581,986.30.  Built Environs sent Tali a payment schedule in response to its ninth progress claim in which Built Environs rejected certain variations claimed by Tali and sought to set off liquidated damages of approximately one-million dollars against the amounts claimed by Tali.

Tali made an adjudication application to Nominator, an authorised nominating authority under the SOP Act, in respect of its ninth progress claim.  Nominator nominated Matthew Allan as the adjudicator.  Mr Allan determined that the value of the progress payment to which Tali was entitled was $579,420.90.

Built Environs commenced judicial review proceedings against Tali, Nominator and Mr Allan seeking a declaration that Mr Allan’s determination is a nullity and an order setting it aside. 

Built Environs relied on six grounds for judicial review.  These were:

  1. That Tali’s payment claim did not comply with section 13(2) of the SOP Act and this deprived Mr Allan of jurisdiction to undertake an adjudication.  Built Environs’ contentions were based on the fact that there were arithmetical errors in the payment claim that it did not specifically identify the construction work performed since the previous payment claim.
  2. That Mr Allan exceeded his jurisdiction by entertaining a claim for unliquidated damages, assuming the jurisdiction of the subcontract superintendent to grant an extension of time to Tali to achieve substantial completion and entertaining claims not made in Tali’s payment claim.
  3. That there was a denial of natural justice because Mr Allan did not invite further submissions or evidence from the parties.
  4. That there was a denial of natural justice due to a reasonable apprehension of bias of Nominator and/or Mr Allan.
  5. That Mr Allan made errors of law invalidating his determination.
  6. That Mr Allan did not act in good faith because he did not attempt in good faith to consider the submissions put by the parties or call for further submissions and identify, understand and determine the issues in accordance with the SOP Act and the contract.

Justice Blue rejected Built Environs’ first ground of review on the basis that the payment claim allowed a reasonable principal to ascertain with sufficient certainty the basis of the claim, so as to be able to provide a meaningful payment schedule, notwithstanding the minor arithmetical errors and the fact that the claim had been prepared on a cumulative basis.

Justice Blue also rejected Built Environs’ second ground of review.

The third ground of review was upheld by Justice Blue.  There were a number of points, both factual and legal, decided by Mr Allan in his adjudication application which the Court found Mr Allan did not have any or sufficient evidence before him to make a decision on or where Built Environs had not been given adequate notice that Tali was relying upon, or that Mr Allan might determine the adjudication application upon.  In relation to these points, the Court found that Mr Allan should have sought further submissions from the parties or called a conference before deciding these matters.  Justice Blue found that there was a denial of natural justice by Mr Allan and that this rendered the adjudication determination void.

Built Environs’ fourth ground of review, that there was a reasonable apprehension of bias by Nominator or Mr Allan, was based on fact that:

  • The manager of Nominator, Mr Sain, was also the chief executive officer of Edward Sain & Associates (ESA) that had been engaged by Tali to advise and assist it concerning contractual issues with Built Environs on the Project. 
  • ESA conducts adjudication training courses on behalf of Nominator and ESA trained, on behalf of Nominator, Mr Allan.
  • Mr Allan was a former employee of Built Environs prior to the Project.

The Court found that there was a reasonable apprehension of bias on the part of Nominator in the selection of the adjudicator to adjudicate the dispute between Tali and Built Environs and that this rendered the adjudication decision void.  However, the Court found that there was insufficient evidence to establish a reasonable apprehension of bias on the part of Mr Allan.

Given that the Court upheld the third and fourth grounds of review, the Court did not decide grounds five and six of review.   The Court declared that Mr Allan’s adjudication determination was void and set the determination aside. 

This decision shows that recipients of payment claims must be reasonable in their responses, and that minor errors in the payment claims will not invalidate the claims. However, if you are the subject of an adjudication where the adjudicator appears to go beyond the scope of the evidence before them, you may be able to challenge that adjudication on the basis of this decision.

We suggest that before embarking on any of the processes set out in the SOP Act you obtain appropriate advice. Your situation will be unique and you may not be able to rely on the information in this article alone.

If you require further information regarding any of the issues raised in this article, please contact Mark Henderson on 8210 1220 or mhenderson@normans.com.au, Stephen Williams on 8210 1237 or swillliams@normans.com.au or Lisa Hubbard on 8217 1369 or lhubbard@normans.com.au.


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Local Government – Landmark $200,000 fine for Food Act breaches

In the recent case of City of Onkaparinga (the Council) against Supermarket Investments Pty Ltd and Seaford 7 Days Pty Ltd (the Defendants), Magistrate Davis handed down penalties and costs exceeding $200,000.00.  It is important to note that these penalties and costs will be paid to the Council by virtue of Section 145 of the Local Government Act 1999.

Norman Waterhouse successfully represented the Council in the prosecution against the Defendants for breaches of the Food Act 2001 (the Act). This case is a landmark decision in terms of food prosecution, with the largest penalty in South Australian history imposed for breaches of the Act.  Magistrate Davis stated in his reasons for judgment that:

“there is a need to send out a clear message that ongoing, large scale and serious breaches of the Act will attract significant penalties of general deterrence, particularly where some of the breaches occurred after warning notices had been served.”

It is clear from this case and the recent Woolworths decision that Norman Waterhouse has undertaken, that the Courts take these matters very seriously and from a public health perspective there is value for Councils to pursue food businesses who breach food safety laws.

ABC News South Australia’s reporting of this prosecution can be found here.

The Foodland case – facts

The Defendants’ store in Port Noarlunga South had numerous products ready to sell on its shelves ranging from one to 40 days past their use-by dates. These items included ready to eat meats, vegetables, yoghurt, dips, cooking sauce and many more. The Defendants also did not follow proper practices in relation to disposing of out of date foods.

The offending continually occurred for a sustained period of time against a backdrop of constant warnings and statutory notices issued by the Council.  The Court found there was a lack of appropriate procedures and due diligence on the part of the Defendants’ management and relevant employees which allowed for the offending to occur.

The matter proceeded to the Adelaide Magistrates Court where the Defendants pleaded guilty to a combined total of 57 breaches of the Act. On top of any penalties and costs the Defendants have been the subject of significant negative publicity relating to these breaches.

Since the commencement of the proceedings, the particular Foodland store has retrained staff regarding safe food practices and procedures.

“Take-away” points

This case highlights that breaches of food safety legislation is considered highly unacceptable in Australian Courts. To keep public health at a high standard, unsuitable and unsafe food should not be accessible to consumers. Food-borne diseases do not just put the individual at harm but also puts the greater community at risk. Food-borne diseases can cause serious illness and injuries to people, especially vulnerable populations such as young children, pregnant women, the elderly and people with compromised immune systems. 

The Act and corresponding Food Standards Code are in place to help prevent food-borne diseases from occurring in the public. Parliament wants to prevent poor food safety practices from occurring in the interests of ensuring good public health. Accordingly, Parliament has set harsh penalties for breaches of the Act in order to deter food businesses from keeping out of date, unsuitable or unsafe food on shelves.

This prosecution has demonstrated that food businesses will be subject to heavy fines if they do not clear products from their shelves.  Food businesses will have no excuse for out of date food being stored on their shelves. The excuse of a break down in chain of command will not deter Courts from imposing heavy fines.

Norman Waterhouse has significant experience and expertise in the conducting of Council prosecutions regarding food and public health law, and other regulatory matters.

For more specific information on any of the material contained in this article please contact Paul Kelly on 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au.


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Construction - Are your contractors licensed?

As most councils would be aware, the Building Work Contractors Act 1995 (Act) and the Building Work Contractors Regulations 2011 (Regulations) place obligations on building work contractors to be licensed under the Act.  Broadly speaking, the Act and Regulations provide that a contractor is required to be licensed to carry on the business of performing ‘building work’ for others.

The definition of ‘building work’ is broad and includes ‘the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building’.  The definition of ‘building’ in the Act includes a ‘structure’.  Consequently, many of the work and activities which are outsourced by councils will fall within the definition of ‘building works’.

To demonstrate this, Consumer and Business Services (previously OCBA) (CBS) which administers the Act and Regulations considers the definition of “building work” in the Act to include the work listed in the Building Standard Conditions List provided in the document “building work supervisors – standard registration conditions” (Conditions). Please follow the link to see the full list here. As you can see, this goes beyond what may otherwise be considered building work and we are finding that there are some contractors operating on the basis that they do not require a licence when, in fact, they do.

The Conditions set out the scope of what CBS consider to be ‘building work’ for the purposes of the Act and make it clear that building work includes, for example, civil construction, earthworks, brick paving, construction waterproofing, footing construction, painting, paving and stormwater drainage.

Pursuant to the Act, a contractor who undertakes ‘building work’ while unlicensed could be liable to a fine of up to $20,000 and is not entitled to be paid for the building work undertaken.

Councils should be aware that in addition to these consequences for the contractors, a council which engages a contractor to undertake building work who should be licensed but is not potentially exposes itself to a number of risks including a failure of insurance and reputational risk as well as many others.

In our view, councils need to consider the reputational, risk management and governance issues which may arise from engaging unlicensed contractors and implement a strategy to deal with this issue. 

For more specific information on any of the material contained in this article, please contact Mark Henderson on 08 8210 1220 or mhenderson@normans.com.au.


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Local Government – Burial and Cremation Act 2013 – What everyone is dying to know!

The Burial and Cremation Act 2013 (SA) (the Act) has now received assent and will shortly come into operation. The Act will regulate all cemeteries, burial grounds and related facilities in South Australia. Consequently it will repeal Part XXX of the Local Government Act 1934 (SA) (LG Act 1934) and the Cremation Act 2000 (SA), and will amend certain other Acts. It will also repeal and replace the existing Local Government (Cemetery) Regulations 2010 (SA) and the Local Government (Exhumation of Human Remains) Regulations 2005 (SA).

This article provides an overview of the changes most relevant to councils.

What is changing?

A council may for the purposes of the Act be the ‘relevant authority’ for a cemetery, a natural burial ground or a crematorium if the council is responsible for the administration of the facility. A relevant authority must observe certain requirement and exercise various functions under the Act.

Additionally, councils still have functions and powers in respect of facilities of which they are not the relevant authority. Some of these have been carried over from the LG Act 1934, while others are entirely new.

Establishment/assumption of management

Under the Act, any person may establish a cemetery, natural burial ground (a new, environmentally friendly concept) or crematorium. This includes councils. However, the Act does not carry over the requirement under the LG Act 1934 that councils must establish a cemetery if there is no adequate provision for the disposal of human remains of persons who die within its area.

The Act also allows councils to accept a trust from trustees of an existing cemetery or natural burial ground. Furthermore, a council may assume administration of a cemetery or natural burial ground if the relevant authority of the facility agrees to transfer administration or if there is no identifiable relevant authority.

Under the Act, councils retain their power to establish and manage public mortuaries.

Management

The relevant authority for a cemetery, natural burial ground or crematorium is responsible for various matters including interments, maintenance, and the setting aside of parts of cemeteries for specified purposes. The Act overhauls the way in which all such matters are to be managed. Furthermore, the relevant authority for a cemetery must keep certain prescribed registers, records and plans relating to matters including burials, exhumations, memorials and interment rights.

Where a council is of the opinion that a cemetery or natural burial ground is in a neglected condition or otherwise does not adhere to the requirements of the Act, the council may require the relevant authority (rather than the owner of the land as provided under the LG Act 1934) to carry out works to remedy the deficiency. In the event of default by the relevant authority, the council may carry out the works itself and recover its costs of doing so.

Councils may appoint an officer or employee of the council as an Authorised Officer for the purposes of the Act. Authorised Officers have extensive powers provided by Section 59 of the Act, including powers of entry, inspection, seizure and retention, and the giving of directions reasonably required in connection with the administration, operation or enforcement of the Act.

Closure

Formerly, cemeteries could only be closed by the Governor upon a petition from a council. Under the Act, a relevant authority (which may or may not be a council) may now close a cemetery or natural burial ground at its discretion provided that the facility is unsuitable for the disposal of human remains and has not had human remains interred in it for at least 50 years. Various procedural and consultation obligations must be adhered to in this regard.

Closed cemeteries on land held on trust by a council may be dedicated as park lands following a petition by the relevant authority to the Minister. Additionally, in certain circumstances the relevant authority for a closed cemetery may, under the Act, convert the closed cemetery into public parks or gardens by following certain procedural and consultation requirements.

Once a cemetery or natural burial ground is closed, the owner of the land may dispose of the land in the ordinary course of commerce (provided that all human remains have been removed).

Interment rights

The process for granting interment rights under the Act is substantially the same as under the Local Government (Cemetery) Regulations 2010 (SA). However, the Act removes the 99-year limit on interment rights, and provides for the renewal, assignment or surrender of interment rights (all of which carry certain procedural requirements both for the applicant and the relevant authority).

Councils with cemeteries and/or crematoria within their area should appoint Authorised Officers under the Act, and should review the operation of such facilities (whether or not the council is the ‘relevant authority’ for those facilities) to ensure they are being managed in accordance with the new Act.

For more specific information on any of the material contained in this article please contact Felice D’Agostino on 8201 1202 or fdagostino@normans.com.au, or Trevor Gormley on 8210 1246 or tgormley@normans.com.au.


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Local Government – The Public Health Act 2011 is now in full effect

The phased commencement of the Public Health Act 2011 (SA) (SAPH Act) is now complete. The last provisions of the SAPH Act came into operation on 16 June 2013, and repealed the remainder of the Public and Environmental Health Act 1987 (SA) (PEH Act).

Given the full commencement of the Act, we consider it timely to provide a brief refresher of some of the practical differences between the former PEH Act framework and the new SAPH Act framework.

How does the new legislative framework fit together?

The SAPH Act establishes and outlines the broad duties, functions and powers of persons and authorities.

Various sets of Regulations are made pursuant to the Act. While some Regulations made under the PEH Act have been transferred over to the SAPH Act with only minimal amendments, councils must note that, as previously indicated to our Briefly readership, the former Public and Environmental Health (Waste Control) Regulations 2010 have undergone more extensive revision and have been replaced by the South Australian Public Health (Wastewater) Regulations 2013.

Guidelines, policies, protocols and codes of practice developed by the Minister and the Chief Public Health Officer constitute a third level of the public health legislative framework. These instruments perform various functions, including guiding authorities in the application of the SAPH Act’s overarching principles, identifying matters which constitute risks for public health and prescribing considerations which must be taken into account in making certain decisions.

How is notice scheme different under the SAPH Act?

Under the PEH Act, councils had a number of specific different notices at their disposal which could only be issued in specified circumstances. Those notices were provided for by Part 3 of the PEH Act. Such notices may no longer be issued, and any notices under the PEH Act should be reviewed to ensure they can still be enforced by the council.

This former scheme has been replaced by the more flexible general notice power under the SAPH Act. The new power allows councils to issue a person with a general notice under Section 92(1) of the SAPH Act for the purpose of securing compliance with a requirement imposed by the SAPH Act or for the general purpose of averting, eliminating or minimising an actual or perceived risk to public health.

Just as under the PEH Act, the council may carry out the requirements of a SAPH Act notice and may recover the costs of such works and actions when a person defaults on such a notice.

Also like the position under the PEH Act, a person who has been issued with a notice under the SAPH Act may appeal against the notice to a dedicated review panel, and that person or the council may then appeal to the District Court against the decision of the panel. However unlike the position under the PEH Act, a person who has been issued with a notice under the SAPH Act may alternatively appeal directly to the District Court without first appealing to the review panel.

How are the powers of Authorised Officers different under the SAPH Act?

The powers of Authorised Officers were formerly provided by Part 5 of the PEH Act. Section 47 of the SAPH Act virtually replicates those powers, with one important modification which effectively expands the powers of Authorised Officers: under the SAPH Act, a person may no longer refuse to answer a question of an Authorised Officer on the grounds of self-incrimination. This will make conducting investigations under the SAPH Act simpler, quicker and more effective.

In addition to these powers, Authorised Officers also gain certain ‘emergency powers’:

  • Where an Authorised Officer considers that ‘urgent’ action is required, they may issue an ‘emergency notice’ under Section 92(6) of the SAPH Act imposing requirements on a person in the same way that a council can through a general notice under Section 92(1) (it should be noted that an emergency notice expires after 72 hours, unless confirmed in writing by the council)
  • Where an authorised officer considers that ‘immediate’ action is required, they may take action or cause action to be taken under Section 94(1) by exercising their powers under Section 47 of the SAPH Act and/or the additional powers of entering and taking possession of vehicles or premises, and seizing, retaining, moving, destroying or otherwise disposing of any substance or thing.

The maximum penalty for hindering, failing to adequately answer or failing to assist an Authorised Officer in exercise of their powers generally has changed from $4,000 (or 1 year imprisonment) to $25,000 (with no provision for imprisonment). The maximum penalty for failing to adhere to an emergency notice is also $25,000.

In accordance with Section 46 of the SAPH Act, Authorised Officers must now be issued with identity cards in a form approved by the Chief Public Health Officer. This new requirement replaces the certificate of authority required under Section 7 of the PEH Act. Authorised Officers are required to produce their identity card at the request of any person in relation to whom the Authorised Officer intends to exercise a power.

Councils should review all delegations and authorisations and ensure that Authorised Officers are properly authorised under Section 44 of the SAPH Act.

Norman Waterhouse has extensive expertise in relation to the new public health framework from policy, governance and regulatory perspectives. We look forward to assisting our local government clients transition into, and navigate, the new public health landscape.

We would be pleased to assist councils to review any outstanding notices issued under Part 3 of the PEH Act, including the tried and true Section 15 Notices, to ensure they can continue to be enforced under the SAPH Act.

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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Property, Infrastructure and Development – When is an easement not an easement?

The recent New South Wales Supreme Court case of Jea Holdings (Aust) Pty Ltd v Registrar-General of NSW [2013] NSWSC 587, considers the current state of the law in relation to when an easement confers such extensive rights that it cannot be a valid easement.  We therefore thought it would be a pertinent time to re-visit this legal principle and consider what is, and is not, an easement. 

An easement is a right enjoyed by one person (the Easement Holder) over the land of another person (the Landowner) that interferes with the Landowner’s use of its own land.  Common forms of easements are rights of way, where an Easement Holder can use the Landowner’s land as a walkway or driveway and drainage easements, where an Easement Holder uses the Landowner’s land for pipe work underground or drainage across the surface of the land.

One of the four basic characteristics for a valid easement is the legal principle that the easement must be “capable of forming the subject matter of the grant”.  What this means is that:

  • the rights granted by the easement must not be too wide or vague;
  • the rights must not amount to joint occupation of the land between the Easement Holder and the Landowner and the rights must not substantially deprive the Landowner of legal possession of its land; and
  • the rights must not constitute mere rights of recreation.

In the Jea Holdings case, a number of parcels of land owned by Jea have a shopping centre and car-parks situated on them.  There is a hotel situated on an adjoining parcel of land owned by Awar Pty Ltd.  Awar claimed that it had been granted an easement for it and its customers to use 200 car parks on Jea’s land jointly with Jea and its customers.  The dispute between the parties centred on whether the rights granted to Awar constituted a valid easement or whether these rights could not form a valid easement because the rights were so extensive that they deprived Jea of its legal rights of ownership and possession of its land.

The Court discussed two issues in particular in this regard.  First, whether the burden on the Landowner by the easement should be considered in light of the impact of the easement on the whole of the Landowner’s land or only that part over which the easement rights exist.  Second, whether it is sufficient that the Landowner retains ownership and control of its land for an easement to be valid or whether the Landowner needs to retain some substantive use of its land in order for an easement to be valid.

After detailed consideration of these points, the Court decided that the applicable test is whether there remains to the Landowner a reasonable use of its land in its entirety following the grant of the easement rights.  On the facts of this case, the Court noted:

  • That the majority of the surface of the Landowner’s land was affected by the easement for car-parking.
  • That, notwithstanding this, the Landowner is still permitted to use the surface area to the extent that it does not interfere with car-parking, the airspace above the land and the ground below the land and that the Landowner therefore still had a very substantial use of its land.
  • That in cases where an easement allows both the Easement Holder and the Landowner to share a resource, it is necessary to look at how this will work in practice rather than what it would look like if the easement rights were exercised to the greatest extent possible. 
  • The easement did not amount to “joint ownership” of the land by the Landowner and the Easement Holder because the Easement Holder was only able to use the land for a very limited purpose, namely car-parking.

As this case illustrates, there are very specific legal principles which determine if rights can form a valid easement.  It is important to ensure that an “easement” is actually an easement rather than amounting to some greater property right (for example, a lease).  In this case, the Court held that the car-parking rights could constitute a valid easement, although Awar’s claim for an easement was ultimately defeated on another point.  Awar therefore found itself with a hotel but no car parks for its customers.

For more specific information on any of the material contained in this article please contact Lisa Hubbard on 08 8217 1369 or lhubbard@normans.com.au.


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Development – Changes to directors' liability & increased penalties

We recently advised you about changes under the Statutes Amendments (Directors’ Liability) Act 2013 (Act) which reform directors’ vicarious liability in numerous Acts including the Development Act 1993.  (See here for details).

Those changes came into force on 17 June 2013, and include changes to Section 105(3) of the Development Act 1993.

Liability will now attach to directors and CEOs of corporations which are found guilty of a “prescribed offence” unless they prove that they could not, by the exercise of due diligence, have prevented the commission of the offence.

The “prescribed offences” for the purpose of Section 105(3) include: undertaking development contrary to the Development Act 1993, performing building work contrary to technical details, failing to comply with an emergency order, and failing to comply with a fire safety notice. 

Liability will also apply to directors and CEOs of companies for a small number of other offences against the Development Act 1993. However, for these offences the prosecution will be required to prove each element of the offence.

Increased Penalties

The Act also amends the penalty provisions for some (but not all) of the “prescribed offences”, including:

  • failure to use, maintain and operate a major development in accordance with the relevant approval (Section 48(14)) now attracts a maximum fine of $30,000 and default penalty of $500;
  • contravention or failure to comply with an emergency order (Section 69(12)) now attracts a maximum fine of $15,000 and default penalty of $200; and
  • contravention or failure to comply with a fire safety notice issued under Section 71(3)(b) or (6) (Section 71(14)) now attracts a maximum fine of $15,000 and default penalty of $200.

The commencement of the changes to several penalty provisions is a timely reminder for councils to review of their notice templates (particularly for Section 69 emergency orders and Section 71 fire safety notices) to reflect the new fines and default penalties.

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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Development and Town Planning – New processes and powers for urban renewal precincts

The State Government has proposed new powers and processes to facilitate the delivery of urban renewal projects on a precinct-by-precinct basis, in line with the objectives of the State Planning Strategy.  These are contained in the Housing and Urban Development (Administrative Arrangements) (Urban Renewal) Amendment Bill 2013 (Bill).

Processes

In very broad terms, the Bill would enable the Minister to declare a specified area of land to be a “precinct” and to appoint a “precinct authority”. Council, the Urban Renewal Authority and other statutory corporations may be precinct authorities.

The primary functions of the precinct authority are to prepare and maintain for the relevant precinct:

  1. a precinct master plan;
  2. precinct implementation plans

Precinct implementation plans may include many matters currently addressed in development plans, including design guidelines, desired allotment patterns, height and density controls, maps of proposed public and open spaces and an infrastructure implementation framework.

Implementation plans may also specify certain classes of development as a complying form of development for the purposes of development assessment.

In preparing a precinct implementation plan, the precinct authority must have regard to the provisions of the relevant development plan for the area, and must take unspecified “reasonable steps” to consult with each council that has a direct interest in the matter.  

Once adopted, the Minister may use the “fast-track” process under s29 of the Development Act 1993 to amend the relevant development plan to give effect to a precinct plan.

Precinct plans will automatically override any inconsistent council by-laws in respect of the precinct, to the extent of the inconsistency.

Powers

Precinct authorities may be authorised by regulation to exercise specific statutory powers relevant to the management, development or enhancement of a precinct. This expressly includes powers to grant approvals, consents, licences or exemptions; to provide services or infrastructure; and to impose and recover rates, levies or charges.

The regulations could, for example, empower precinct authorities to grant development approvals, road alteration authorisations or liquor licenses; to require persons to connect to a local service (eg recycled water); and to impose and recover additional rates and service charges.

Before exercising certain powers, the precinct authority must consult with the authority in which the power is primarily vested before exercising the power (for example, the local council).  It is not, however, bound to comply with any directions given by that authority. Nor is it required to consult in relation to other kinds of powers, such as imposing or recovering rates, levies or charges.

No draft regulations have been released yet.

Broader implications

Of concern is the absence of clarity as to the role of local government in its capacity as the primary rating authority and as the owner and manager of community land and infrastructure. For example:

  • Will a precinct authority be able to determine how existing community land will be developed and managed?
  • Will a precinct authority be able to require councils to accept the vesting of new community land or infrastructure, even where a council may have concerns or objections?
  • Will decisions about the provision of services and infrastructure – and the recovery of rates – impact on the long-term financial sustainability and strategic objectives of councils?

In our view, these, and other similar questions, will require careful consideration – and possibly public debate – to ensure that the interests of local government are not prejudiced by the reforms.  In addition, the issue of rates being recovered by bodies who are not responsible to those being rated is a difficult one.  It would appear that there is potential for taxation without representation.

Conclusion

The Bill proposes a framework which is likely to result in removal of development policy-making and assessment functions in declared precincts from local government.

It is also likely that precinct authorities will be given other ‘development-related’ powers traditionally exercised by local government.

Of concern is how the Bill may impact on local government in its capacity as a rating authority, and as owner and manager of much community land and infrastructure. In this regard, certain aspects of the Bill are not as clear as they might be and further clarification is desirable.

We note that similar regimes interstate, such as the Queensland ULDA, NSW Barangaroo Project and WA’s Elizabeth Quay, have attracted significant attention.

For more specific information on any of the material contained in this article please contact James Nicolson on 8217 1342 or JNicolson@normans.com.au, or Peter Psaltis on 8210 1297 or PPsaltis@normans.com.au.


Guest Author: Sally Powell, Bedford CEO: DisabilityCare – funding for our future

When DisabilityCare Australia is launched in various sites across the country next month, it will herald the start of the biggest social policy reform Australia has seen since Medicare.

It’s a national disability insurance scheme, a way of providing individualised support for people with permanent and significant disability.

DisabilityCare will give every Australian the certainty of knowing that if they, or a loved one, have a permanent and significant disability they will get the care and support they need regardless of where they live or how they acquired disability.

It is finally recognising that each person with disability has different needs, preferences and aspirations and they must be given the support that is right for them.

In the past, support has been provided based on the number of places in a limited number of programs. The services and support people with disability, their families and carers receive has depended on where they live, what disability they have and how they obtained that disability.

In short, the system has failed people with disability, their families, carers and ultimately our wider community.

DisabilityCare will rectify this. It will create a funding pool for people based on assessment of need.

People with disability, their carers and families will be assisted to develop a plan that supports goals and aspirations, covers financial support needs and determines the support needed to pursue goals.

It will support people with a permanent and significant disability in an ongoing capacity, recognising that support needs can change over a lifetime.

For families and carers – it’s the knowledge that their valuable role can be sustained.

DisabilityCare will commence at four launch sites in four states from 1 July 2013, and then two more from July 2014.

The Federal Government has reached an agreement to a full roll-out of the scheme across all states and territories except Western Australia.

In South Australia, the full implementation of DisabilityCare will occur from 2018.

Around 35,000 people will eventually benefit.

It will be trialled next month in South Australia for children aged between zero and five years old, rising to children aged 14 and under in the following two years.

Like most disability service providers, I want DisabilityCare to work, to be effective and to transform the current environment.

However, I believe it takes more than the roll-out of DisabilityCare to ensure the sustainable success of a program such as this. I think it will also require an attitude shift in what we see people with disability as being able to offer, how they can contribute and participate, and as a community ensuring that they are given every opportunity to do so.

Society will need to recognise the new system can do so much more than assist people with disability financially.

The Productivity Commission’s final report into disability care and support in 2011 found people with disability and their carers experience low levels of income, educational attainment, employment, superannuation, health and wellbeing.

With DisabilityCare we can exact a significant social outcome.

People with disability will be able to participate and learn more at school, even go on to further study and gain jobs that enable them to contribute productively to the economy. 

It will give people the chance to work, learn and live at organisations like Bedford – earning an income, gaining independence and creating social connections.

They can undertake further training and study and, at home, live as comfortably and independently as possible with the correct home modifications and support.

Families can be relieved of the full brunt of the financial, physical and emotional stress of caring for people with disability.

With bipartisan support and the backing of disability service providers, family, carers and most importantly people with disability, it is an eagerly anticipated reform.

Funding for it remains a critical issue.

Recently the Federal Government passed legislation through Parliament that provides for half a percentage point increase in the Medicare levy from 1 July, 2014.

Every cent raised is to be put towards funding DisabilityCare for around 460,000 Australians.

For most Australians it’s around a dollar a day to ensure security for them and their families, if they were to ever be impacted by disability.

Bedford is looking forward to its full implementation across the country.

Bedford has changed the lives of South Australians with disability for nearly 70 years – made possible only because of the strong backing and the positive attitudes toward people with disability we have received from members of the local community.

Because of our innovative and flexible approach to business operations, the people we support continue to contribute positively to our State by consistently providing reliable and high quality services.

At Bedford, we believe by giving people better access to supports they can participate more fully in society. The introduction of DisabilityCare will ensure this stays front and centre of people’s minds.

And the flow on effect of DisabiltyCare and the further community support for increased participation is significant.

It can potentially mean an increased employment participation of an additional 370,000 people with disability across Australia by 2050, equating to an additional GDP of almost $50 billion.

I look forward to DisabilityCare trialling in South Australia next month.

As a disability services provider, we are eager to be involved in any capacity we can and we are currently in talks with both levels of Government.

By Sally Powell, Bedford Chief Executive.
Areas of expertise: disability services, best practice in HR, best practice in the disability sector, business innovation for disability service providers, DisabilityCare, women in business, all divisions of Bedford.


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