The de-amalgamation process will invariably present some practical challenges for councils. Two key issues are the impact of de-amalgamation on development applications and legal proceedings.
HOW WILL DE-AMALGAMATION AFFECT DEVELOPMENT APPLICATIONS?
The Local Government and Other Legislation Amendment Act 2013 (Qld) contains a series of amendments to the Sustainable Planning Act 2009 (Qld) (SPA) to transition development applications affected by de-amalgamation.
If a development application is made, but not decided, before the 1 January 2014 (Changeover Date) de-amalgamation date, which Council – the continuing regional council (Continuing Council), or the new shire Council (New Council) – will be the decision-maker for the application?
The answer depends on the whether the land to which the application relates is located in the Continuing or New Council’s local government area.
- The matter is straightforward for development applications for land located entirely within one local government area – whether it be a New Council’s or a Continuing Council’s. If so, the council responsible for the land has responsibility for the development application from the Changeover Date.
- The situation is more complex where the land is located partly in both the Continuing Council’s and New Council’s local government areas. If so, the Continuing Council must decide, by the end of 2 January 2014 (the day after the Changeover Date), whether or not it will retain responsibility for the application. If the Continuing Council decides not to retain responsibility, then the New Council becomes responsible once it is notified of the Continuing Council’s decision. In either case, the council that becomes responsible is required to consult with the other, in a way that it considers appropriate, before deciding the application. Unfortunately, the amendments to SPA do not clarify what consultation is “appropriate”.
The amendments to SPA also contain a number of provisions aimed at assisting a New Council that becomes the decision-maker for an application. If the New Council is required to take a step within a certain period, and, at the date of becoming responsible for the application, has not taken that step, it receives an automatic 10 business day extension. For example, if the New Council would, on the date it becomes decision-maker, have 8 business days to make a decision, then it instead has 18 business days.
Further, Continuing Councils are required to assist a New Council that becomes decision-maker for an application. This includes providing copies of all necessary material to the New Council, and more generally, doing “all acts and things necessary or desirable to facilitate the transfer of the decision-maker function to the new local government.” This should assist in ensuring that the transition is as smooth as possible.
How will de-amalgamation affect legal proceedings?
Another key issue is which Council – the New Council or the Continuing Council – will be a party to existing and future legal proceedings.
For most proceedings, the issue is determined by whether the proceeding relates to the Continuing Council’s or the New Council’s local government area. Under the de-amalgamation regulations, if a proceeding relates to the New Council’s local government area, but could have been started or continued by or against the Continuing Council before the Changeover Date, the proceeding must, nonetheless, be started or continued by or against the New Council.
However, for proceedings under SPA, the position is more complex.
- For existing proceedings related to land wholly within the New Council’s local government area, or decisions relating to the New Council’s local government area, the New Council replaces the Continuing Council as a party.
- For existing proceedings related to land partly within both the New Council’s and the Continuing Council’s local government areas, or decisions relating to both local government areas, the Continuing Council is required to ask the Minister to decide which Council is to be a party. Until the Minister makes this decision, the New Council can elect to join a proceeding to which the Continuing Council is a party. Given this, the Minister will need to make these decisions fairly quickly. Otherwise, a New Council may need to join many existing proceedings in order to protect its position, creating unnecessary and potentially significant legal costs.
A number of practical issues are likely to arise where a New Council is to replace a Continuing Council in a proceeding.
For example, in Planning and Environment Court proceedings, it is not clear whether the New Council should file and serve an Entry of Appearance, to put on record that it is replacing the Continuing Council and its address for service. If the New Council intends to use different solicitors, it would also need to file a Notice of Change of Solicitor.
While in many cases, it might be convenient for the New Council to continue using solicitors who acted for the Continuing Council, there may also be good reasons (such as cost considerations, or a desire to avoid possible conflicts) why the New Council may wish to engage different solicitors.
To avoid unnecessary disruptions to legal proceedings, and to ensure that new solicitors have sufficient time to obtain relevant documents from the previous solicitors and familiarise themselves with proceedings, it will be critical that transfer managers make arrangements for any change of solicitors well in advance of the Changeover Date.