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25 Nov 13
D-day for Council de-amalgamation is fast approaching

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Will your DAs or appeals change hands?

The changeover day for the newly de-amalgamating Douglas, Livingstone, Mareeba and Noosa Shire Councils is 1 January 2014.  Be aware of what this means for your development applications (DAs) or appeals going forward. 

From this date onwards, what will happen to a DA that falls within the new Shire Council area?  Will the Regional Council or Shire Council continue to assess it?  Which Council will be a party to new or existing Court matters or responsible for enforcement action?  What if a development geographically spans across both a continuing Regional Council and new Shire Council area? 

The Local Government and Other Legislation Amendment Act 2013 (Qld), which was passed on 7 November 2013, introduces transitional provisions to the Sustainable Planning Act 2009 (Qld) (SPA) answers these questions and others.

Development applications
If you have made a development application (or other request), that has not yet been decided, the SPA provides that the following rules apply from the changeover date:

Location Decision Maker
Wholly within new Shire Council New Shire Council
Wholly within continuing Regional Council Continuing Regional Council
Spans new Shire Council and continuing Regional Council 

Continuing Regional Council decides either:

  • continuing Regional Council, or
  • new Shire Council.


If the application falls within the jurisdiction of the new Shire Council then that Council will need to take particular care to ensure the IDAS timeframes are adhered to. 

Difficulties may arise if you respond to an information request issued by a continuing Regional Council and the new Shire Council is required to assess the application without any prior knowledge of the matter.  A special dispensation of ten additional business days has been given to the new Shire Council to perform any step.  However, in circumstances where the new Shire Council is still finding its feet, this extra time may not be sufficient.

Where a proposed development spans the continuing Regional Council and new Shire Council, then whichever Council is not the decision maker becomes a concurrence agency for the development application, to the extent it relates to its local government area.

If a new Shire Council becomes the decision maker then the continuing Regional Council is to do all things necessary or desirable to assist the Shire Council. 

Court matters
Existing Court matters
For an existing Court matter, SPA outlines the circumstances when the local government party to the Court proceeding will change:

Location Party to Court Proceedings
Wholly within new Shire Council New Shire Council
Wholly within continuing Regional Council Continuing Regional Council
Spans across new Shire Council and continuing Regional Council

Minister of SDIP decides whether it is the:

  • new Shire Council
  • continuing Regional Council, or
  • both.

If the new Shire Council is not chosen, it may elect to join anyway.


New Court matters
For a new Court matter, such as an appeal against a decision made before the changeover day by a continuing Regional Council or a Court, the SPA outlines which Council should be joined to the proceeding:

Location Party to Court Proceedings
Wholly within new Shire Council New Shire Council
Wholly within continuing Regional Council Continuing Regional Council
Spans across new Shire Council and continuing Regional Council

Both the new Shire Council and continuing Regional Council until the Minister of SDIP decides whether it is the:

  • new Shire Council
  • continuing Regional Council, or
  • both Councils.


Enforcement matters
For an SPA offence committed before 1 January 2014 on land that spans the two local government areas then either Council may commence enforcement action.  The continuing and new Councils will need to put appropriate processes in place to ensure that they do not issue overlapping notices.

The continuing Regional Councils will also need to ensure that all relevant investigation work is handed over to the new Shire Council.

Potential issues
Teething issues in the de-amalgamation process are inevitable.  An area where particular confusion is likely to be caused is with the transfer of files and knowledge for existing development applications, Court matters and enforcement proceedings.

In some cases, there will be a complete changeover of the planning, engineering, environmental and legal teams for a file.  This is likely to cause confusion, double-handling and possible delays on matters to which statutory timeframes apply.  In addition to the problems likely to arise with the personnel changes, there will also be a significant administrative burden in transferring files between Councils.

A collaborative effort between the continuing and new Councils will be important to ensure that the de-amalgamation process runs as smoothly as possible and all statutory time frames and Court obligations are met.

What to do next
If you need clarification as to which Council will be handling your matter then please contact our Local Government Industry Group to discuss.
 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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