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De-amalgamating Councils: Changes pursuant to the Local Government and Other Legislation Amendment Act 2013 and the Local Government Legislation Amendment Regulation (No.4) 2013

Purpose

This bulletin is to assist councillors and transfer managers involved in de-amalgamation with legislative changes made as a result of the passing of the Local Government and Other Legislation Amendment Act 2013 and the Local Government Legislation Amendment Regulation (No.4) 2013.

Focusing on changes to the Local Government Act 2009, the Local Government Regulation 2012, the Sustainable Planning Act 2009 and the Local Government (De-Amalgamation Implementation) Regulation 2013 relating to de-amalgamation and is directed towards councillors and transfer managers involved in that process. The changes will take effect from 1 January 2014.

Background

Focusing on changes to the Local Government Act 2009, the Local Government Regulation 2012, the Sustainable Planning Act 2009 and the Local Government (De-Amalgamation Implementation) Regulation 2013 relating to de-amalgamation and is directed towards councillors and transfer managers involved in that process. The changes will take effect from 1 January 2014.

Changes to the Local Government Act 2009 (LGA)

The changes give the newly established councils of Douglas, Livingstone, Mareeba and Noosa the power to adopt a budget and levy rates and charges outside the prescribed budget cycle for the remainder of the 2013-1014 financial year. The new councils must adopt the budget, and decide the rates and charges to be levied by 1 February 2014 or a later date allowed by the Minister (Section 305 of the LGA).

The new councils have also been exempted from the requirement to hold a post-election meeting within 14 days of the conclusion of the election. However, a deputy mayor must be appointed by resolution at the first meeting after the new councils come into existence (Section 306 of the LGA).

The changes also provide that the transfer of assets between new and continuing councils as a result of de-amalgamation will not incur duty under the Duties Act 2001 (Section 260F of the LGA).

Changes to the Sustainable Planning Act 2009 (SPA)

A number of changes have been made to the SPA to provide transitional arrangements for development applications, proceedings and enforcement matters affected by de-amalgamation. A summary of those changes is provided below:

  • Development applications made prior to 1 January 2014
    • If the land is entirely within the continuing council area, then the continuing council remains as the decision maker for the application (section 950).
    • If the land is entirely within the new council area, then the new council will be the decision maker for the application. If the new council has to take a particular step under the Act within a certain period, then the new council has a further 10 business days as well as any unexpired part of the period to take the step (section 951).
    • Where land is within both new and continuing council areas, the continuing council can choose which development applications it will remain as decision maker for. That decision must be made by 2 January 2014. Regardless of which council is the decision maker, the other council will be the concurrence agency for that part of the application within its council area (section 952).
    • If a new council becomes the decision maker then the continuing council must provide all necessary assistance to the new council, for example, by providing documents to the new council relevant to the application (section 953).
    • Where proceedings are commenced prior to 1 January 2014 - if proceedings were commenced against the continuing council involving land that is entirely within the new council area, then the new council will become a party to the proceedings in place of the continuing council (section 954). If the proceedings involve land that is located within both council areas, then within 5 business days after 1 January 2014, the continuing council must ask the Minister to decide whether one or both councils are to be a party to the remainder of the proceedings. Until a decision has been made by the Minister, the continuing council continues to be a party to the proceedings. The new council may elect to be joined as a party at any time up until the Minister makes a decision (section 955).
  • Decisions made prior to 1 January 2014
    • If a continuing council or a court had made a decision about land within the new council area and a person could have commenced proceedings about the decision prior to 1 January 2014, then the person may commence proceedings against the new council and not the continuing council (section 956).
    • If the decision involves land within both new and continuing council areas, then the person must commence proceedings against both councils. Within 5 business days after service of the proceedings, the continuing council must ask the Minister to make a decision about whether one or both councils will be a party to the proceedings. Until that decision is made both councils will remain parties to the proceedings (section 957).
  • Enforcement by new councils after 1 January 2014
    • If prior to 1 January 2014 the continuing council would have been the assessing authority for an offence relating to land that is wholly or partly within the new council area, then after 1 January 2014 the new council may give a show cause notice, give an enforcement notice or bring proceedings in relation to the offence (section 958).

    Changes to the Local Government Regulation 2012 (LGR)

    The regulation gives new local governments the flexibility to manage their new responsibilities from 1 January 2014.

    References to a financial year in a relevant provision of the LGA and LGR, if the context permits, is a reference for that part of the 2013-2014 financial year commencing on 1 January 2014 and ending on 30 June 2014. The relevant provisions are listed in section 338 of the LGR.

    The first rates notice issued by a new local government is for that part of the financial year starting on 1 January 2014 and ending on 30 June 2014 (section 88(2)(a) of the LGA).

    An exemption until the 2015-2016 financial year has been given to new local governments to comply with the requirement to identify and assess new significant business activities for possible reform.

    While new local governments do not have to prepare a 5 year corporate plan for the 2013-2014 financial year, the requirement in section 174 of the LGR to prepare and adopt an annual operational plan for each financial year applies.

    The following provisions of the LGR do not apply to a new local government for the 2013-2014 financial year:

    • Content of budget – s169(2)(a), (4), (6) and (8). Section 169(1)(b) to the extent it requires a local government’s budget to include statements for the next two years
    • Adoption and amendment of the budget – s170(1) and s170(2)
    • Annual operational plan contents – s 175(1)(b)(i)
    • Community financial report – s179(2)(c)
    • Requirements about discretionary funds – s202(5), and
    • Statement of estimated financial position – s205.

    The new local government is required to decide at its first meeting the day and time for holding future meetings.

    Changes to the Local Government (De-Amalgamation Implementation) Regulation 2013

    Amendments have been made to allow transfer managers to take action to ensure the new local government is in a position to operate effectively and immediately under the Disaster Management Act 2003 (DMA) by 1 January 2014.

    Transfer Managers should familiarise themselves with Part 5A of the Local Government (De-Amalgamation Implementation) Regulation 2013.

    A Transfer Manager must take the following action:

    • Appoint members of a disaster management district group (section 24 of DMA)
    • Establish a Local Disaster Management Group (section 29 of DMA)
    • Appoint members of the Local Disaster Management Group (section 33 of DMA)
    • Appoint a chairperson and deputy chairperson of the Local Disaster Management Group (section 34 of DMA), and
    • Prepare and approve a plan for disaster management (sections57 and 80 of DMA).

    Before 1 January 2014 the person appointed to be the chairperson of a Local Disaster Management Group must appoint a local disaster co-ordinator (section 35 of DMA).

    Further information

    Any further enquiries on this matter should be addressed to:

    Ms Bronwyn Blagoev
    Director
    Policy, Legal and Corporate Support
    Email: This email address is being protected from spambots. You need JavaScript enabled to view it.