Norman Waterhouse

 

 

Normans Briefly

In this issue

Welcome to the September edition of our Local Government Briefly.

>   Welcome Back Susie Inat!
>   Employment – Effects of District Council of Barunga West v Hand deepened by separate High Court decision
>   Development Assessment – There’s no such thing as a minor variation
>   Local Government – Introduction of the Local Government (Governance) Amendment Bill 2014
>   Development Assessment – “Alterations and Additions”
>   Development Control – Disputing building classifications assigned by private certifiers
>   Employment – Superannuation increases frozen for seven years

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Welcome Back Susie Inat!

We are happy to announce Susie Inat, Partner, has returned to practise as a member of our Property, Infrastructure and Development Team.

Susie is well known to many of you.

She brings a vast experience of governance and general administrative law to the practice of local government property law. Susie’s property experience includes community land (the revocation process of community land classification, community consultation, leasing and licensing of community land, and the development and application of management plans); roads (particularly advising on the public/ private status of roads, opening and closing process and the granting of authorisations and permits to use public roads), asset disposal, land acquisition and Council projects involving land.

Susie’s general governance background, together with her experience in the local government sector, enables her to provide practical and politically astute advice.

Susie can be contacted for assistance and advice on 08 8210 1211 or sinat@normans.com.au.



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Employment – Effects of District Council of Barunga West v Hand deepened by separate High Court decision

Much of the South Australian Local Government sector is now aware of the issues arising from the decision of the Supreme Court in District Council of Barunga West v Hand, where it was found that the South Australian Municipal Salaried Officers Award (SAMSO Award) does not apply to council Chief Executive Officers (CEOs). Many councils and CEOs have accordingly identified potential shortcomings in their employment arrangements, and are taking steps to address those concerns (within the bounds of caretaker period restrictions).

In addition, virtually all employment contracts in Australia must now be interpreted differently in light of the High Court’s landmark decision in Commonwealth Bank of Australia v Barker [2014] HCA 32. As we reported, the High Court’s decision reversed the position in Australian contract law regarding the ‘implied term of mutual trust and confidence’. The High Court found that a term, which had required employees and employers not to engage in conduct which destroys the relationship of trust and confidence between the parties, has no place in Australia law and is not implied into employment contracts.

Click here to read more.



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Development Assessment – There’s no such thing as a minor variation

It is something of an open secret within the industry that development assessment bodies (particularly planning authorities such as councils) have historically permitted informal “minor variations”. These often occur around the time that a building rules consent is granted (and development approval issued), or immediately prior to construction when working drawings are produced.

The practice is one of administrative convenience: there is little work for development assessment staff to do beyond placing the relevant plan on file, and the developer need only forward accurate plans.

However, this firm has consistently advised that such “minor variations” are neither permitted nor authorised by the Development Act 1993; nor are they of any legal effect. Frequently, such minor variations lead to development plan consents which are inconsistent with other consents or the development then undertaken. Any variation – no matter how minor – requires the lodgement of a variation application and its processing in accordance with the Act.

Click here to read more.



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Local Government – Introduction of the Local Government (Governance) Amendment Bill 2014

The Local Government (Governance) Amendment Bill 2014 (the Bill) was introduced by Hon. Geoff Brock, Minister for Local Government and Minister for Regional Development, on 7 August 2014. The Bill seeks to amend Section 60 and Section 80A of the Local Government Act 1999 (SA) (the Act). These amendments were recommended by the Office of the Ombudsman in its 2011 final report of the Investigation into the City of Charles Sturt and have been through an extensive consultation process.

It comes as no surprise, according to the Hon. Geoff Brock, that this Bill is to proceed at the urging of the Local Government Association, which considers this reform critical to the continued evolution of the role and responsibilities of council members.

Click here to read more.



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Development Assessment – “Alterations and Additions”

In late August Norman Waterhouse successfully defended a decision of the Mid Murray Council to refuse a challenge to a non-complying classification in Outhred English & Associates Pty Ltd v Mid Murray Council [2014] SAERDC 41.

A key issue which fell to be resolved in the appeal was whether the development in question was an “alteration or addition” to an existing dwelling.

Facts

The applicant’s clients acquired the subject land in 1994. At that time the land contained a small shed-like building which contained a kitchen, bathroom (shower and sink) and storage room, and an open area used as a family room and for sleeping purposes (Original Building). The Original Building had no separate bedroom(s) nor any laundry or internal toilet.

Click here to read more.



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Development Control – Disputing building classifications assigned by private certifiers

Section 68A of the Development Act 1993 (Act) contemplates that a private certifier who has granted a building rules consent pursuant to Section 33(1)(b) can exercise the power to assign a classification to the building in accordance with the Building Code, and then issue a certificate of occupancy.

What if a council believes that the private certifier has assigned an incorrect classification? This can have safety consequences for those inhabiting or using the building. For example, a building mistakenly given a Class 10a classification will avoid the installation, testing or maintenance of essential safety provisions under the Building Code, such as measures to protect against the risk of fire.

Click here to read more.



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Employment – Superannuation increases frozen for seven years

The previous uncertainty about minimum superannuation contributions beyond the present financial year has now been settled. The Federal Government’s mining tax repeal legislation – to which the superannuation ‘freeze’ proposals have always been linked – passed through Federal Parliament and, on 5 September 2014, received assent and became law.

Click here to read more.



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