Your City, Your Town, Your Community August 2016 22 Bleach* Festival celebrating community through arts and culture 06 Down by the Bay Moreton Bay Regional Council 14 From the South-west Border to tip of Cape York Community focussed councils 18 Cook Shire A land of contrasts ThreeSixty ThreeSixty team Editor Troy Webb Journalist Dianne Reilly, Dianne Reilly Communications Design Wills Brand Design The next time you are stuck in a traffic jam, dreaming of an open road and no neighbours – consider a move to regional Queensland! In this edition of ThreeSixty, (our only one for the year due to the local government elections), we take a look at the challenges and charm of some of our remote Queensland councils. Most of us living in SEQ cannot imagine our economy and local prosperity being reliant on the weather, yet that’s the case for regional councils in the far north, west or south-west of the state. For all their unique challenges (and each region is vastly different), they share many of the same qualities – a “can-do” attitude, a desire to grow both their population (and rates base), endless enthusiasm and a deep pride in their region and their communities. In regional areas, these remote councils are the glue that holds communities together. That doesn’t mean their constituency speaks with one voice. Projects and developments will always raise community concern and objection, and then there are the state interests that are often far more imposing and impactful than is felt in SEQ. Consider the State Government’s interest in Cape York, for example. However, it does mean that these towns and communities rely on each other for regional success – for their livelihood and, for their way of life. We also consider new legislation such as the changes to the planning laws (is it SPA by another name?), environmental regulation legislation as well as e-contracting, real community engagement and more. We hope you enjoy this edition of ThreeSixty and as always we will keep you updated on any major developments in the sector through our website, publications and other communications. Troy Webb Partner and head of McCullough Robertson’s Local Government Industry Group Welcome to the eighth edition of ThreeSixty. CONTENTS 02 State Government Update 03 Legislative Update 06 DOWN BY THE BAY 08 Enforceable undertakings 10 Buy Local 11 New laws chase clean-up costs 12 E-contracting – how to avoid an e-disaster 14 FROM THE SOUTH-WEST BORDER TO TIP OF CAPE YORK 18 COOK SHIRE A land of contrasts 20 But we consulted – didn’t we? 22 BLEACH* FESTIVAL Celebrating community through arts and culture 27 Indigenous cultural heritage and the development industry 28 Upcoming events ThreeSixty : Your City, Your Town, Your Community 1 Four months on from the local government elections, I’m sure that both new and returning councils are getting on with the important job of representing their communities. The Palaszczuk Government is committed to working with councils across the State to improve outcomes for all Queenslanders. We want to work productively across levels of Government to deliver jobs, build transformative infrastructure and develop the industries of the future. In March this year we delivered the State Infrastructure Plan, a long-term plan for delivering the infrastructure that Queensland needs to grow. This Plan is backed by the establishment of a new State Infrastructure Fund, with an initial investment of $500 million, including $180 million for the Significant Regional Infrastructure Projects Program (SRIPP) designed to deliver infrastructure needs in key regional centres. Projects identified by the SRIPP commenced implementation across the state after the 2016 State Budget was handed down on June 14. The SRIPP enables state government departments and agencies to bring forward economic and social infrastructure projects to provide an immediate boost to infrastructure investment and increase business confidence. We know investment in infrastructure is essential for healthy regional economies, and our government will ensure local residents are employed through these projects wherever possible. By having a number of smaller projects across a diverse area we will ensure that local businesses and contractors are able to tender for the work. This is a sensible and measured approach to supporting jobs and productivity. Community needs such as livability and attracting and retaining people in regional communities will be the focus of these projects. Another major change in the local government space is the introduction of the new Planning Act 2016, passed in the Parliament in May. The new streamlined legislation will create a system that is fair, transparent, and practical; which serves our communities by valuing our heritage, yet strives for a strong and prosperous future. STATE GOVERNMENT UPDATE Jackie Trad MP Deputy Premier, Minister for Transport, Minister for Infrastructure, Local Government and Planning, and Minister for Trade In March this year we delivered the State Infrastructure Plan, a long-term plan for delivering the infrastructure that Queensland needs to grow. Message from The Hon. Jackie Trad, Minister for Local Government, Planning, Trade and Investment 2 ThreeSixty : Your City, Your Town, Your Community For better or worse – the Sustainable Planning Act 2009 (SPA) has been replaced by the Planning Act 2016 (the Act) – with the intention of delivering a simplified, more transparent and workable planning system for Queensland. This is largely the State Government’s claim and one not refuted by the opposition, who introduced similar planning and development bills when in government. The bills presented to the Parliament and passed during debate in May 2016, closely resembled bills drafted by the former LNP government in 2014 and aimed, in part, to deliver a simpler development assessment process, reduce red tape and stimulate the economy through development. Importantly, the Act has not yet commenced and there is likely to be a significant transition period in the lead-up to commencement. Further outcomes claimed include: more transparency tighter decision rules for councils greater certainty about development new requirements on councils and the state government to publish reasons for development decisions longer consultation periods for new planning schemes mandatory consultation on state planning instruments greater certainty through a bounded code assessment (which presumes approval only when an application complies with criteria set out in the code) more rights for the community to appeal decisions without adverse cost orders, and more critical community infrastructure by providing councils with a greater ability to increase infrastructure charges levied on new developments. The system will also result in significant involvement of the State government, particularly the Minister. Ministerial rules and guidelines will be an important feature of the system. There will be rules and guidelines relating to the plan-making system and assessment provisions. The original purpose of SPA – which was to achieve ‘ecological sustainability’ – has been retained, with the addition of strengthened environment and heritage provisions relating to the recognition of climate change such as coastal protection, the reinstatement of land surrender arrangements and the requirement for development to measure potential impacts. The categories of development will remain as code assessment and impact assessment. LEGISLATIVE UPDATE NEW PLANNING ACT 2016 ThreeSixty : Your City, Your Town, Your Community 3 The Act has also retained some other aspects of SPA including: provision in the planning system for state and local planning instruments an integrated development assessment system, albeit through rules to be developed dispute resolution and opportunities for consultation single state planning policy and public notification periods notification periods of 60 business days for regional plans regional planning committees, and SARA. KEY NEW CHANGES PLANNING INSTRUMENTS There have been some notable changes made in relation to planning schemes and the development assessment process. Local planning instruments which were an integral component of SPA will continue under the new Act. However, the previous State instruments (being the State Planning Regulatory Provisions and Standard Planning Scheme Provisions), were removed. Local categorising instruments include: a planning scheme a Temporary Local Planning Instrument (TLPI), or a variation approval, to the extent the variation approval is a categorising instrument. One interesting inclusion is the requirement to have a ‘communications strategy’ for councils to use in community consultation in making, amending or repealing local planning instruments. A TLPI can now be in place for a period of two years, compared to one year. In addition, a planning scheme of the local government will no longer need to include ‘core matters’. It does not need to comply with ‘standard planning scheme provisions’ (the Queensland Planning Provisions). However, a regulation may prescribe requirements for the contents of a local planning instrument. The process for developing a planning scheme is now able to be tailored, after the local government has proposed to develop the scheme, with the Chief Executive of the Department giving a notice about the process to be followed. The Chief Executive must consider the Minister’s guidelines when preparing the notice or amended notice. The intention of this system is to provide greater flexibility to local governments when making or amending planning schemes. KEY NEW CHANGES DEVELOPMENT ASSESSMENT The Development Assessment Rules are currently being drafted as a supplementary document to the Act. The Act has lowered the categories of development from five to three. These now include: prohibited development assessable development, and accepted development. Exemption Certificates are a new feature under the Act which will essentially exempt some developments (under limited circumstances) from going through the development approval process. These may be issued by the local government in the circumstances prescribed or otherwise by the Chief Executive of the Department. A development application involving a preliminary approval can include a variation request component whereby it is stated how the application will vary aspects of a local planning instrument. This was previously known as a preliminary approval overriding a planning scheme. One new provision is that a preliminary approval applies instead of a later development permit to the extent of any inconsistencies, unless specified exceptions exist. There are new provisions requiring assessment managers and referral agencies to publish reasons explaining why an application is supported or approved. This measure will apply to all code and impact assessable development decisions. All decision notices must be given to principal submitters at the same time as the applicant (if not subject to a negotiated decision notice). The intention of this system is to provide greater flexibility to local governments when making or amending planning schemes 4 ThreeSixty : Your City, Your Town, Your Community The maximum penalty for a development offence has significantly increased from 1,665 penalty units to 4,500 penalty units. Enforcement orders will also attach to the land and bind any successors in title or any occupiers of the premises. The intention of this system is to provide greater clarity and transparency to applicants and local governments in assessing development applications. PLANNING SIMPLIFIED Q. If SPA was overly complicated, difficult to understand and hard to use, has the new legislation introduced a simpler hierarchy with fewer regulatory requirements? While the Act is less than half the volume of the previous legislation, it is not a self-contained document, with many of the key ‘sources of law’ included in a number of supplementary documents including regulations, guidelines and ministerial rules. The focus of previous legislation, such as IPA and the current version of SPA is under the Integrated Development Assessment System (IDAS), which prescribes the process for development assessment and the timeframes required to be met. The Act no longer deals with those matters, and delegates the responsibility of creating ‘development assessment rules’ to the Minister. The Act has created more flexibility through creating and amending planning schemes and discretion in the new supplementary documents, enabling them to evolve without returning to the Legislative Assembly for debate. BUSINESS AS USUAL Q. With all these supplementary documents, will it be business as usual? The government has made it clear that it is placing the needs of communities and community members at the forefront of the planning process: “To ensure that the community is provided with better opportunities to be engaged in the planning process, the Planning Bill enshrines: the obligations on local government to publicly notify their planning instruments, the making of submissions and how properly made submissions are to be considered by local government when making a planning scheme. New plan making arrangements, which will be described in the minister’s rules, will include greater flexibility for local government to negotiate a process with the state for plan making to better suit a community’s needs.” Minister for Local Government and Planning, the Hon. Jackie Trad MP – Hansard 11 May, 2016. The Act also recognises the unique circumstances of Indigenous communities and allows planning schemes in these communities to respond better to their characteristics, customs and traditions. Whilst we recognise a need for flexibility and community engagement in the Queensland planning system, the Act may provide implications for the appeals process. Although SPA was criticised for being a complicated and large piece of legislation, it was mostly a centralised document planners and lawyers could refer to, particularly with respect to the development assessment process. The Planning and Environment Court will be entirely regulated by the Planning and Environment Court Act 2016 as its jurisdiction covers more legislation than specified in the Act. Most notably, the costs rules have reverted to the position that each party bears its own costs unless limited exceptions apply. Given the number of changes to Queensland’s elected government in recent years, it will be interesting to see how the Queensland planning system efficiently manages the supplementary documents (including the development assessment rules) being changed potentially every few years. Troy Webb Partner firstname.lastname@example.org The Act is not a self-contained document with many of the key ‘sources of law’ included in a number of the supplementary documents including regulations, guidelines and ministerial rules. ThreeSixty : Your City, Your Town, Your Community 5 The Moreton Bay Region is one of the fastest growing regions in Australia with growth at five percent outstripping the rest of SEQ and the state average of two percent. With the current population of 420,000 due to swell by forty per cent in the next 20 years, the Moreton Bay Regional Council can’t afford to sit on its hands when it comes to planning and delivering infrastructure to meet current and future demand. From the beachside suburbs of Redcliffe and Scarborough to the mountain communities of Samford Valley and Woodford, this diverse and picturesque region has much to offer and it is clear that many are discovering its hidden gems. Mayor of Australia’s third largest council, Allan Sutherland, says Moreton Bay Regional Council simply cannot wait for other levels of government to plan and deliver all the infrastructure needs of the region. “Each year more than 10,000 new homes are being built in the region – we are a region hungry for infrastructure,” Mayor Sutherland says. “Our council must go out and plan and deliver projects that act as a catalyst for further State and Federal government funding like the Moreton Bay Rail and the university precinct. “It is these very projects that will continue to stimulate our region’s growing economy, create thousands of jobs and guide our ongoing growth and development. “We are the strongest and fastest growing economy in Queensland. Last year – more than 12,300 jobs were created in this region. “That’s more jobs created in this region than the Greater Brisbane and Gold Coast regions. “But we can’t stop there. This council must keep a steady hand on the wheel to keep our region on the right track.” Of council’s $536 million budget in 2016/17, $173.8 million has been set aside for capital works across the region. High on the list of priorities are road and transport infrastructure. “Residents and business people rely heavily on the local road network to get to school or simply to get around, so constant improvement is necessary to move traffic efficiently,” Mayor Sutherland says. “Half our population leaves the region to travel to Brisbane and other areas for work, with over eighty per cent making the return journey by car. “We are doing what we can locally, but projects such as the Moreton Bay Rail Link are a vital factor in improving traffic flow by increasing public transport usage and efficiency.” The 2016/17 Council budget also includes funds for major sport and recreation facility projects, including a significant upgrade to Caboolture’s Queensland State Equestrian Centre. “Council has set aside $6 million for upgrades to the state’s premier equestrian centre, including work to construct a covered warm-up arena, 75 new horse stables, four new wash bays and additional car parking,” he says. “This work will provide accommodation for 230 horses during events and ensure the facility continues to attract major world-class equestrian events to the area – which will feed into the local economy. “With around 2.9 million visitors to our region every year, it has never been more important for council to turn its focus to tourism, events and economic development.” A new partnership with Moreton Bay Region Industry and Tourism is aimed at identifying, supporting and delivering even more facilities and events, from sport and recreation (such as the Equestrian centre) to arts and culture (such as the famous Woodford Folk Festival). Down by the Bay Allan Sutherland Moreton Bay Regional Council Mayor 6 ThreeSixty : Your City, Your Town, Your Community Moreton Bay University Precinct At the heart of the region’s future is the Moreton Bay Region University Precinct project. The project features a major new university campus at Petrie being delivered by the University of the Sunshine Coast. The new campus is expected to cater for up to 10,000 students within the first ten years, starting from 2020. The Petrie campus will offer a wide range of courses including law, business, science, engineering and speciality courses such as mechatronics. Key features of the project include public access learning facilities, open green space, wildlife and environmental corridors and public plaza areas. The precinct is expected to deliver thousands of local study and job opportunities for the region by 2020 and according to the results of ongoing and recent community consultations and surveys, the project enjoys the support of ninety percent of the community. However, Commonwealth funding is still needed to make the project a reality. Moreton Bay Rail Link Jointly funded by the Commonwealth Government ($583 million), Queensland Government ($300 million) and Moreton Bay Regional Council ($105 million), the $988 million project will deliver a 12.6km dual-track passenger rail line between Petrie and Kippa-Ring. The Moreton Bay Rail Link includes six new rail stations at Kallangur, Murrumba Downs, Mango Hill, Kinsellas Road, Rothwell and Kippa-Ring. The project is nearing completion and is now in the testing and commissioning phase. Stations are constructed and the finishing touches on landscaping, artwork and access roads are being carried out. Track and rail work has finished along the new 14km corridor from Lawton to Kippa-Ring. Smart council services Mayor Allan Sutherland said more local residents than ever before were seeking to interact with Council online, with many seeking to download online applications. “While many residents continue to interact with Council through traditional telephone and email contact, thousands of residents are moving to smart technology to get in touch with council,” Mayor Sutherland said. In 2013, Moreton Bay Regional Council launched its new MBRC Request smart phone and web-apps. The customer request apps give residents the ability to report issues requiring the attention of council’s maintenance teams with just a few swipes of a smartphone screen. “If a resident spots a pothole, a fallen tree or graffiti, they can report this quickly and easily by snapping a photo on their smartphone, tapping in a few details in and uploading it to council. The Customer Request app does the rest.” An average of almost 30,000 of council’s customer service requests were received via the new smartphone app in 2014/15. Moreton Bay Regional Council has also seen an increase in registrations for council’s MoretonAlert service, which issues the latest storm, flood and bushfire alerts to residents. “Almost 40,000 local residents have already subscribed to Moreton Bay Regional Council’s disaster warning service, and that number is only continuing to grow,” Mayor Sutherland says. “A nice feature of MoretonAlert is the ability to geotag affected properties to target the message to those property owners.” The MoretonAlert warning service offers free text, voice and email warning messages to local residents about a range of local events including severe weather events, flood warnings and planned burns. ThreeSixty : Your City, Your Town, Your Community 7 ENFORCEABLE UNDERTAKINGS MORE THAN AVOIDING PROSECUTION Councils will be familiar with the concept and application of ‘enforceable undertakings’ in relation to the work health and safety (WHS) space, but may not be aware that a similar opportunity to ‘make good’ is now available in regard to alleged environmental offences. Amendments made to the Environmental Protection Act 1994 (Qld) (EP Act) in September 2015 provide a further option in relation to alleged environmental offences – Enforceable Undertakings (EUs). EUs are binding agreements between the regulator and an alleged offender which require a person or entity to take specified actions to ’make good’ on identified non-compliance. The aim of EUs is to provide a flexible, responsive, cost effective and tailored way of achieving compliance. EUs have provided a well-utilised alternative to prosecutions in the WHS space in Queensland for a number of years, and this model is now being adopted in relation to environmental regulation. WORK HEALTH AND SAFETY Alternatives to prosecutions that result in a monetary fine under the harmonised WHS laws are available and, where offered, are being embraced by industry. In appropriate cases, regulators are open to broader sentencing options than simply pursuing a penalty. These options can include training orders, injunctions, publication orders and special project orders. For all parties involved, the ability to efficiently decide what path to follow for an effective WHS outcome will have significant benefits and it is important that councils are aware of these options. In recent times, WHS prosecution outcomes have included a combination of fines, good behaviour bonds and training orders. However, other matters have been resolved by way of EUs, rather than by prosecutions. An EU is an alternative to a prosecution for a safety breach. EUs were pioneered in Queensland and can result in improved safety outcomes for employees, contractors and the community while still recognising that a breach has occurred. An EU should not be offered lightly, noting that it will involve an ongoing commitment for a period of years and a significantly higher monetary cost than the penalty that might otherwise have been imposed. ENVIRONMENTAL COMPLIANCE Similarly to WHS, an EU may be a preferred option in relation to alleged environmental offences. Whether it is a suitable option will depend on the circumstances. Councils may consider EUs as another tool to include in their ‘enforcement toolkit’, both in relation to council itself undertaking an environmentally relevant activity that is administered by the Department of Environment and Heritage (DEHP) (for example the operation of a landfill), and where council is the administering authority for environmentally relevant activities (such as metal forming). While EUs are not a cheap option (nor are they designed to be), they potentially allow for broader improvement of environmental performance through implementation of more rigorous operational procedures and environmental training for staff and managers. HOW DO EUs WORK UNDER THE EP ACT? Under the EP Act, the administering authority may accept a written undertaking made by a person in relation to a contravention or alleged contravention of the EP Act, except for indictable offences such as wilfully and unlawfully causing serious or material environmental harm. An EU may be accepted before or after proceedings have been commenced. If an EU is accepted after proceedings have commenced, the administering authority must take all reasonable steps to have the proceedings discontinued as soon as practicable. The administering authority will only accept an EU if it believes it will secure compliance with the EP Act and enhance the protection of the environment. According to DEHPs Enforceable Undertakings Guideline (Guideline), a request for an EU may be rejected if, for example, the matter involves a significant incident with 8 ThreeSixty : Your City, Your Town, Your Community considerable public interest or where prosecution proceedings are at an advanced stage. An application for an EU under the EP Act must be made in the approved form. General information in relation to what to include in an EU such as measurable actions and timeframes for completing objectives is provided in the Guideline. However, drafting and negotiation of environmental enforceable undertakings will be informed by the history of WHS EUs in Queensland. Importantly, the making of an EU does not constitute an admission of guilt by the person providing the undertaking. Court proceedings cannot be taken against a person for an alleged contravention of the EP Act if they are complying with an EU. However, it is an offence to fail to comply with an EU under the EP Act and maximum penalties are severe and include costly fines and, for individuals (including executive officers), imprisonment. There are certainly potential benefits in pursuing an EU as an alternative to prosecution, however, the complexities of the relevant legislation and the consequences of non-compliance make EUs by no-means an easy option – legal advice and support is definitely recommended. Cameron Dean, Partner, leads a team that assists many clients, including regional councils, with WHS EUs. Melanie Simmonds, Special Counsel, is part of McCullough Robertson’s environment and planning team and assists clients with EUs under the EP Act. Cameron Dean, Partner email@example.com Melanie Simmonds, Special Counsel firstname.lastname@example.org TRAINING ORDERS INJUNCTIONS PUBLICATIONS ORDERS SPECIAL PROJECT ORDERS OPERATIONAL PROCEDURES ENVIRONMENTAL TRAINING ThreeSixty : Your City, Your Town, Your Community 9 “These are called National Procurement Network (NPN) arrangements and they significantly increase the purchasing power and the range of potential clients which mean a better discount and less work for suppliers. “Local Buy can also work with councils to increase the range of local suppliers through regional forums. “We recognise there are different needs for different councils. When there are many suppliers available offering the same product or service, as is the case in SEQ, councils will be driven by price. “Small councils make their savings and achieve value for money by using our resources and established arrangements instead of having to reinvent the wheel or contract out procurement.” One of the major trends in local government procurement is the greater use of technology and the growing number of procurement systems that are available. Local Buy has been operating LG Tender-Box for over 10 years and has had a partnership with Vendor-Panel to provide a Quotation system since 2010. “We are seeing more and more use of these systems as time progresses and other players are looking to provide IT solutions in the procurement space. “Councils are increasingly looking to source local goods and services, particularly in rural and mining areas that are going through an economic downturn. “Supporting local business has always been important to councils, but they are placing an even greater emphasis on promoting the local economy. “There are a great variety of common use contracts that can assist in this regard but not all are going to be appropriate so it is important to find a way to achieve all the objectives of supporting the local economy, while still meeting legislative requirements and obtaining competitive pricing.” Most councils in Queensland will be aware of the Local Government Association of Queensland’s (LGAQ) procurement services company – Local Buy – however, many may not be using the service to their best advantage. Local Buy’s core business is contracts and they have established common-use procurement arrangements for councils and local government authorities, making it easy to ensure that contracts meet legislative requirements as well as deliver value for money. CEO of Local Buy, Tim Rose says one of the benefits often overlooked is the savings in time and internal resources that are required to establish panels of providers. “Some councils are better resourced than others when it comes to the size and expertise of their procurement team and the smaller the team the more useful our services become,” Tim says. “Small and regional councils in particular will benefit from using our services as we enable them to purchase a diverse range of goods and services from vetted suppliers without tendering. Larger councils can also benefit by using their resources to look at strategic purchasing rather than focusing on small amounts of spend. “Using Local Buy means no tendering and no need to seek multiple quotes, saving time and money as there is no cost to government organisations accessing Local Buy arrangements.” Local Buy tendered arrangements meet the legislative requirement of the Local Government Act 2009 and Local Government Regulation 2012. The ability to use Local Buy’s contracts means councils can set terms and conditions to achieve a balance that best protects their interests and, on the rare occasion that a dispute does arise, Local Buy will assist in resolving the dispute or intervene as required. For a small council, Local Buy provides purchasing power that they otherwise would not have. “By joining in with other states to harness national suppliers, we have established number of arrangements that we formulate with the other states,” Tim says. Buy Local Tim Rose Tim is the Chief Executive Officer of Local Buy. His career in local government spans more than 20 years, working with councils in Winton, Bowen and Burnett. Using Local Buy means no tendering and no need to seek multiple quotes, saving time and money.... 10 ThreeSixty : Your City, Your Town, Your Community New laws chase clean-up costs New State Government legislation, designed to force those responsible for environmental damage to pay for remediation, goes all the way to the top of the chain. Tim Hanmore, Partner, says the Environmental Protection (Chain of Responsibility) Amendment Act 2016 has several implications for local government. “These laws provide a new and unique approach to environmental reparation and were triggered by specific circumstances in which remediation works were not being undertaken as they should by the entity,” says Tim. “The State Government had to step in and undertake the work and is seeking costs in recovery from the entity. Legislation had to be introduced quickly to enable that to happen. “The legislation is designed to ‘chase the dollar’ – particularly but not exclusively in circumstances when a company is found to be in financial difficulty. “Where there are clean-up costs associated with a site, the State Government needs to be able to issue a bill to a ‘related person’”. There are potential implications for councils: a council could be considered a ‘related person’ (as the landowner), and council could seek to rely on new powers as the administering authority for devolved matters under the Environmental Protection Act 1994 (Qld) (EP Act). COUNCIL AS ‘RELATED PERSON’ While a local government could be considered to be a ‘related person’, Tim says this is unlikely. “The State Government moved quickly with these amendments and admits the process was rushed,” he says. “In recognition of that, there is a built-in recommendation to review the legislation in two years, ensuring it is catching the ‘big fish’, not the little ones.” The new laws are most relevant for ‘problem sites’. An Environmental Protection Order (EPO) can be issued to a ‘related person’ to improve a site, clean-up a site or require final rehabilitation of a site. A ‘related person’ can be: a holding company the owner of the land on which the company carries out or has carried out a relevant activity other than a resources activity, or a person who is an associated entity of the company, and owns land on which the company carries out or has carried out a relevant activity that is a resource activity a person that the administering authority determines has a relevant connection with the company. Tim suggests that as the definition of related person is very broad, the use of the term ‘company’ does not occur elsewhere in the EP Act and is not defined so, it could be argued that it does not cover (and is not designed to cover) councils. “When it comes to land owners, there are exposure issues that can carry through to final rehabilitation of a site. “It was argued by the resources industry that it would be impossible to strike deals with land owners if they were potentially left exposed in this way. The Bill was then amended to exclude landowners associated with resource companies. However, the exemption only applies to resource industry/companies.” The land owner category is such that a person is a related person if they: own land on which the company carries out, or has carried out, a relevant activity other than a resources activity, or if they: are an associated entity of the company; and own land on which the company carries out, or has carried out, a relevant activity that is a resource activity. COUNCIL AS LAND OWNER Tim points out that councils may be susceptible to liability under the new provisions as owners of the land. Waste management facilities are an example where this may become an issue if operators are unable to meet their environmental obligations. “The broad definition of related persons expressly contemplates liability of land owners,” he says. “Where a contractor has not complied with the conditions of an environmental authority and is unable to foot the cost involved in rehabilitation works under an EPO, a council may become directly liable under the ‘related person’ provisions. Continued over… ThreeSixty : Your City, Your Town, Your Community 11 0000000111000010010010010001 0000000111000010010010010001 000000011100001001001001000100001000010000100001000011001 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 0000000111000010010010010001000010000100001 00000001110000100100100100010000100001000010000100 00000001110000100100100100010000100001000010000100001 000000011100001001001001000100001000010000100001000011001010 000000011100001001001001000100001000010000100001000011001010010 1 000000011100001001001001000100001000100 000000011100001001001001000100001000100 00000001110000100100100100010000100001000010000100001100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010 00000001110000100100100100010000100001000010000100001100101 000000011100001001001001000100001000010000100001000 00000001110000100100100100010000100001000010000100001100101001010100 000000011100001001001001000100001000100 000000011100001001001001000100001000100 000000011100001001001001000100001000010000100001000011001010010 1 0000000111000010010010010001000010000100001000010000110010100 0000000111000010010010010001000010000100001000010 000000011100001001001001000100001000010000100001000011001 00000001110000100100100100010000100001000010000100001 0000000111000010010010010001000010000100001000010000110010100 000000011100001001001001000100001000010000100001000 00000001110000100100100100010000100001000010000100001100101 00000001110000100100100100010 00000001110000100100100100010000100001000010000100001100101 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 000000011100001001001001000100001000100 000000011100001001001001000100001000100 000000011100001001001001 “Councils will need to be careful and try to foresee any future need for rehabilitation of a site when divesting responsibility for a site. This will come down to the contracting and procurement or transaction phase. However, Tim doesn’t think it will be common for local government to be caught out by the legislation. “They are not the target – rogue operators are the target. However, councils may inadvertently deal with such entities and potentially leave themselves exposed. “With a potentially high risk site, councils will need to be able to consider the financial position of an entity to undertake final rehabilitation of a site, during the procurement and contracting phase. “With existing contracts it is important to start asking those questions because if the entity goes broke, councils could be liable for carrying out the orders of an EPO issued by the State.” Councils should take the following steps to minimise risk: look closely at their own policies consider contracts carefully document the steps taken to demonstrate that they have taken all reasonable steps to ensure the operator complies with environmental obligations and makes adequate provision to fund rehabilitation and restoration of the land impose their own high standard of performance on third party operators, and manage risk and liability (particularly where council has responsibility for compliance but not direct control over a site). Further, Tim says it is even more unlikely that individual council officers would be found liable. “It is expected that chasing landowners will be a last resort for dealing with environmental liability. However, we will be relying on the yet to be released statutory guidelines to shed light on the implementation of these far reaching provisions.” COUNCIL AS ENVIRONMENTAL REGULATOR Tim says councils, as regulators, should consider using the provisions of the legislation only when all other avenues have been exhausted. “Council officers should take care before utilising the extended powers under the Act and be informed by the statutory guidelines,” he says. KEY MESSAGES “Councils should look to develop appropriate enforcement policies and internal policies ensure that these are consistent with the EP Act. Procurement, contracting and compliance remain the keys. “The bottom line for councils is: carefully consider who you are engaging and how you are engaging contractors.” Tim Hanmore Partner email@example.com In today’s highly electronic environment, procurement contracting via purely electronic means is becoming increasingly common across many business and industry sectors. For local government, the push for efficiency improvements in project delivery and the need to enhance process and record management can make e-contracting an attractive option. Goran Gelic, Senior Associate, outlines the benefits, risks and solutions that councils need to consider when using e-contracting – to avoid an e-disaster! The procurement sector has begun to implement e-contracting and e-tendering to improve coordination and collaboration among contracting parties. However, with benefit comes risk. The use of e-contracting creates a number of issues which contracting parties should be mindful of and need to properly address. If the risks associated with electronic contracting are not properly resolved, the practical and legal consequences for contracting parties can be serious. At the local government level, councils of all sizes are increasingly making the move towards e-contracting and e-tendering in the hope of achieving the best value to improve services and outcomes, while keeping probity and transparency at the forefront of their procurement activities. E-procurement is proving to be the most efficient tool available in managing the tendering and contracting processes in today’s market for local councils. Listing opportunities on a dedicated portal provides direct access and transparency to suppliers, while online access to documentation reduces the administrative burden and associated costs of contract execution. E-CONTRACTING HOW TO AVOID AN E-DISASTER! 12 ThreeSixty : Your City, Your Town, Your Community 0000000111000010010010010001 0000000111000010010010010001 000000011100001001001001000100001000010000100001000011001 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 0000000111000010010010010001000010000100001 00000001110000100100100100010000100001000010000100 00000001110000100100100100010000100001000010000100001 000000011100001001001001000100001000010000100001000011001010 000000011100001001001001000100001000010000100001000011001010010 1 000000011100001001001001000100001000100 000000011100001001001001000100001000100 00000001110000100100100100010000100001000010000100001100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010 00000001110000100100100100010000100001000010000100001100101 000000011100001001001001000100001000010000100001000 00000001110000100100100100010000100001000010000100001100101001010100 000000011100001001001001000100001000100 000000011100001001001001000100001000100 000000011100001001001001000100001000010000100001000011001010010 1 0000000111000010010010010001000010000100001000010000110010100 0000000111000010010010010001000010000100001000010 000000011100001001001001000100001000010000100001000011001 00000001110000100100100100010000100001000010000100001 0000000111000010010010010001000010000100001000010000110010100 000000011100001001001001000100001000010000100001000 00000001110000100100100100010000100001000010000100001100101 00000001110000100100100100010 00000001110000100100100100010000100001000010000100001100101 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 000000011100001001001001000100001000100 000000011100001001001001000100001000100 000000011100001001001001 0000000111000010010010010001 0000000111000010010010010001 000000011100001001001001000100001000010000100001000011001 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 0000000111000010010010010001000010000100001 00000001110000100100100100010000100001000010000100 00000001110000100100100100010000100001000010000100001 000000011100001001001001000100001000010000100001000011001010 000000011100001001001001000100001000010000100001000011001010010 1 000000011100001001001001000100001000100 000000011100001001001001000100001000100 00000001110000100100100100010000100001000010000100001100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010 00000001110000100100100100010000100001000010000100001100101 000000011100001001001001000100001000010000100001000 00000001110000100100100100010000100001000010000100001100101001010100 000000011100001001001001000100001000100 000000011100001001001001000100001000100 000000011100001001001001000100001000010000100001000011001010010 1 0000000111000010010010010001000010000100001000010000110010100 0000000111000010010010010001000010000100001000010 000000011100001001001001000100001000010000100001000011001 00000001110000100100100100010000100001000010000100001 0000000111000010010010010001000010000100001000010000110010100 000000011100001001001001000100001000010000100001000 00000001110000100100100100010000100001000010000100001100101 00000001110000100100100100010 00000001110000100100100100010000100001000010000100001100101 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 00000001110000100100100100010000100001000010000100001100101001010100 000000011100001001001001000100001000100 000000011100001001001001000100001000100 000000011100001001001001 FORMATION RISKS Just when was that contract formed? To avoid the legal uncertainties surrounding the precise point in time that an electronic contract was formed, include clear provisions in the contractual offer specifying how acceptance should be communicated and when acceptance is deemed effective. Where was the contract formed? Cross-jurisdictional contracts are largely facilitated by e-contracting, so what can you do to ensure certainty of place of contract formation? Include clauses in the contract where the parties agree to submit to the court jurisdiction of a particular place for hearing and determination of a dispute under the contract. Wait – do they have authority to contract? It is important for contract parties to continue carrying out due diligence processes to correctly identify the person who has the authority to contract. Do I still need it ‘in writing’? Yes! Electronic contracts should be in writing so they are more certain and will also help with the administration and management of the contract. ADMINISTRATION AND MANAGEMENT RISKS There’s been a few emails exchanges – has the contract changed? Wouldn’t it be wonderful if all contracts could be agreed on through one simple email exchange? This rarely happens, so it is important that the contract expressly addresses the issue of electronic communications, by including separate provisions that deal specifically with amendments to the contract. Staying in touch – are electronic notices valid? Certainly, if it is expressly specified in the contract that electronic notices are valid and binding. Ensure that you identify the electronic communication method and contact details, insert timing provisions and consent to the use of that method. Is the intellectual property (IP) at risk? It is very easy to share documents electronically and all parties will want to protect their IP from infringement. To protect your IP, be sure to include provisions in the contract relating to ownership of intellectual property contained in the contract documents. Where’s the cone of silence? There is a real risk that confidentiality may be compromised during electronic communication, particularly in relation to the storage or retention of emails. Ensure that provisions are included in the contract that impose a specific duty of confidentiality on all parties. RECORD MANAGEMENT RISKS What time did you send that email? It may be important to establish the creation and exchange of an electronic record. Ensure you adopt digital time stamping for secured time recording. Where’s that file? Wait – where’s the filing cabinet? It may sound obvious but filing is important to ensure that records are readily identifiable, retrievable and able to be read at a later date – and technology hasn’t made the process any easier or quicker. Use a document management system with version control, where every new record created has a new version number and all previous electronic versions of the record are archived automatically by the system. This is legal isn’t it? Councils need to adopt an electronic record retention policy to ensure any legal requirements for the preservation of records are met. Review the relevant legislation and internal policies relevant to local government and the project to ensure you are meeting legal obligations. Goran Gelic Senior Associate firstname.lastname@example.org ThreeSixty : Your City, Your Town, Your Community 13 FROM THE SOUTH-WEST BORDER TO TIP OF CAPE YORK REMOTE COUNCILS ARE COMMUNITY FOCUSSED With towns smaller than most suburbs in SEQ, extreme weather events and hundreds of kilometres of unsealed roads, Queensland’s regional and remote councils battle some unique and interesting challenges. From the town of Texas in the state’s south-west to the northern tip of Cape York, our regional councils are the glue that holds communities together. Aerial view of the Endeavour River mouth, Cooktown and Grassy Hill. Northern exposure In typical style, the always positive Mayor of Cook Shire Council, Peter Scott, addressed a business conference in Cooktown last year beginning his speech with the answer to the question: “what have we got?” The question of what is missing, people, sums up the “build it and they will come attitude” that is one of the common factors found in remote areas. “A key point of difference in Cooktown is lifestyle, and our lifestyle environment,” Mayor Scott says. “Quality of living drives our foundation strengths and aspirations of being a regional community that is progressive, viable and economically diverse; safe, integrated and family friendly and holistically healthy in body, mind and spirit. “We make up eighty per cent of Cape York and the Great Barrier Reef is our outer boundary. “We have vast areas of agricultural opportunity, experiential and cultural tourism and a fabulous future in the green economy of solar, wind and hydro power, carbon trading and tropical and marine bio science. “All we are missing is people. The population needs to grow our rates base and to bring the hands, minds, skills and expertise to further enrich our community. “We recognise that social and economic development is symbiotic. More people equate to more business, more jobs, more ratepayers and a richer social structure.” 14 ThreeSixty : Your City, Your Town, Your Community Banana farm at Lakeland. Growing Goondiwindi Unlike most regional areas, the Goondiwindi Regional Council area is constantly increasing, albeit slowly. Livability is one of its biggest assets, with a multitude of services for a population of just over 6000. Goondiwindi currently has twelve doctors and seven dentists but it is the drawing power of the service region that leads to this success, along with the livability of the town. The region is greatly assisted by the massive drawing ability which extends into NSW and makes Goondiwindi somewhat of a mini supply hub. Goondiwindi Regional Council Mayor Graeme Scheu says the agricultural area faces many challenges, including infrastructure, planning for growth, expanding industry opportunities, dealing with the weather and seasonal changes and transport. “The Toowoomba Range Crossing will be a great start to opening up our region, but will not be the be all and end all by any means,” Mayor Scheu says. “It will certainly assist with access to the Port of Brisbane, but unless the Gore Highway receives some major attention as a feeder supply, we face the possibility of undoing all the benefits of the new crossing. “If industrial and agricultural transports cannot comfortably access this crossing, they will simply divert and take the Cunningham Highway which is toll-free.” This region is still badly in need of a reliable rail freight service as the on farm costs of transporting grain is crippling any profits that exist in an already very tough industry. “Unfortunately there is a complete lack of will to address this problem and we remain hopeful that future government budgets will include the lowering of the floor of the tunnels to enable high cube containers access to the Port of Brisbane and open up the contracts for rail users. Seasons are obviously a major concern, but recent rains indicate that an above average winter may be in front of us, which coming on the back of last years near record prediction, can only make it a leading region in the state as agriculture markets stay strong.” The greatest worry still remains the outcome of the Murray Darling Basin Plan. The irrigation industry undoubtedly puts the security of business and further investment into the region into question. Graeme Scheu Goondiwindi Regional Council Mayor Laura rock art. The Cook Shire Council is keen to grow the population from its current 4,500, with 2,400 in Cooktown alone. “We have adopted a ‘build it and they will come attitude’, and where possible used Council land to encourage development,” Mayor Scott says. “Our professional community, through the interagency committee, adopted an employment strategy to attract families, rather than singles, to live and work here and we have a student assistance program with JCU School of Medicine that sees us having one of the best doctor to patient ratios in Queensland. “We have set ourselves up as a regional hub for health, education, social services, art and culture, recreation and sport and identified key community infrastructure and services in partnership with government and private sector.” Community infrastructure includes the Endeavour Christian School, Holy Spirit boarding School, Cape York Family Rehabilitation Centre, Regional Renal Dialysis and maternity/birthing facility, a regional Government Services Hub and an Events Centre. “Council is a resource that you can engage and we are keen to look at ways to help with your project, your development plans and your ideas.” Continued over… ThreeSixty : Your City, Your Town, Your Community 15 “Any further loss of water will see a possible decline in the livability and livelihood of the region. “We simply cannot follow the example of what has happened in other areas crippled by loss of water. “Decline starts with irrigation industries and then simply festers away until essential services like schools, community and medical services diminish and then the region will go backwards. “We can’t just sit by and watch this happen and that is why council has been active since 2008 insisting on social and economic benefits for local towns and communities.” Funding Council’s operational budget is the biggest problem due to small rate base and Mayor Scheu says State and Federal governments of today simply don’t extend the funding opportunities that have been available to regional councils in the past. “Having said that, we have been successful with some of the contestable grants that come up occasionally,” he says. “Facilities such as the Inglewood Medical Centre, Goondiwindi Sewerage Treatment Plant Upgrade, Goondiwindi Waste Disposal Facility and tourism projects like Coolmunda Dam Upgrade, the Texas Rabbit Works Upgrade and the Goondiwindi Customs House Tourism Project are good examples. “A classic example of a major upgrade in Goondiwindi was the recent development of the Civic Centre and office space at a total cost of just over $7 million. “This development has totally transformed the CBD and allowed council to operate from one location delivering major cost savings. “The Federal government provided a grant of $500,000 for the initial cinema upgrade, with $180,000 coming from the state government, enabling an upgrade for digital projection, however, council was forced to pay the balance through asset sales. “There were some initial community concerns, but we now have something the town and district can be well and truly proud of.” Connecting and supporting small towns and communities like Texas in the east to Weengallon in the west (a good three-hour drive apart) is important for remote councils. The success of amalgamation has helped in this regard. Mayor Scheu says amalgamation has delivered operating efficiencies and a much better liaison with adjoining councils, enabling greater collaboration and better results in relation to major projects of regional significance. Examples include projects like the Toowoomba Rail Crossing, the Inland Rail, the South West Rail Advisory Group (SWRAG) and Downs and Surat Basin Alliance of Councils (DaSBAC) which formed to present a combined approach to regional issues. “The Goondiwindi region has been extremely lucky not to have been dragged into the resources boom and bust period,” Mayor Scheu says. “The region was developed on agriculture, continues to grow through agriculture and will always benefit from the agricultural industry as long as governments are aware of the fact the agriculture is the major backbone of these regions and that infrastructure like communications, roads and rail are imperative to the future of the area. “Access to the Port of Brisbane is vital to reduce freight cost for the man on the land. It is ridiculous to see that a tonne of grain can cost ten times more to move from Thallon to Brisbane than from Brisbane to China. “Agriculture would not be the only beneficiary of a better road system. The region is popular with the Drive Tourism market and if we want to encourage more drive tourists to the district, we need a much higher quality of highway as road safety is paramount in the minds of drive tourists.” With Mayor Paul Antonio, Toowoomba Regional Council and from Western Downs Regional Council Mayor Ray Brown at Wellcamp Airport open day. A feature wall during the refurbishment of the Goondiwindi Regional Civic Centre – refurbishment is now complete. 16 ThreeSixty : Your City, Your Town, Your Community Historic Barcaldine The historic town of Barcaldine hosted thousands of tourists on Labour Day, marking 125 years since the famous shearer’s strikes of 1891. Widely regarded as the birthplace of the Labor Party, the town of Barcaldine swells with tourists each Labour Day, but this anniversary was particularly important. Barcaldine was also the birthplace of McCullough Robertson with the firm establishing its first office in the town in 1926. Barcaldine Regional Council Mayor Rob Chandler said local shops, cafes, restaurants, hotels and pubs all benefit from the influx of people for the annual Tree of Knowledge festival. “Tourism is particularly important to the region at the moment with the current drought really hurting our small business operators and landholders,” Mayor Chandler says. “We just had the best rain for ten years between Longreach and Barcaldine, but even this is unlikely to have broken the drought. “Since the 1800s our main industries have been sheep and cattle production and they continue to drive our economy today, but the long drought has stretched our resources and our communities. “That’s why we are increasingly focussing on and supporting a thriving tourism industry, showcasing the beauty and diversity of our region. We have a rich heritage, Indigenous culture, natural landscapes, a wide variety of fauna and flora, lakes and rivers, arts attractions, events and festivals – so there is something for everyone.” Located in the centre of Queensland, the region includes the towns of Alpha, Jericho, Barcaldine, Aramac and Muttaburra and its abundance of sunshine means it is the ideal site for the location of Queensland’s largest solar farm. The $70 million, 90ha solar project will commence construction in July and is expected to be completed and generating electricity by mid-2017. During construction there will be up to 110 workers on site, a great boost to regional employment according to Mayor Chandler. “The environmental benefits are clear, but these projects, jointly funded by government and private industry mean a great boost to regional employment. “The project ticks all the boxes and may well become another tourist attraction.” Rob Chandler Barcaldine Regional Council Mayor The Tree of Knowledge. Natural lake East North East of Aramac. Harry Redford Cattle Drive. ThreeSixty : Your City, Your Town, Your Community 17 While South-East Queensland Councils juggle the demands of a growing population, the State’s largest local government, the Cook Shire, is calling out for people to move to this unique and magnificent region. Larger than Tasmania with a population a fraction of the Apple Isle, the Cook Shire Council is free of the South’s often competing challenges of traffic congestion, increasing demand for services and sustainable development. But the challenges for this vast and diverse region are many, and complicated by the lack of the most important resource – human capital. The Cook Shire’s current population is approximately 4,500, with 2,400 of those people living in the main township, historic Cooktown. Mayor Peter Scott says that number is insufficient to be sustainable without significant government financial assistance. “Council’s recurring operating expenses are $20 million per annum, yet our general rates and charges income is $6 million per annum,” Mayor Scott says. “We recognise that social and economic development is symbiotic. More people equate to more business, more jobs, more ratepayers and a richer social structure. “We want to grow our population and encourage people, particularly families and business investors, to move to the region.” The Cook Shire Council employed an economist to drive community and economic development and over the past eight years has built services and facilities to cater for double the current population. Cooktown is established as a regional hub for health, education, social services, art and culture, recreation and sport. PLANNING WITH A VISION Four years in the making, the Cook Shire Council’s draft Planning Scheme was submitted to the State Government for approval earlier this year. Greg Ovenden, Director of Reel Planning and principal architect of the scheme, says the draft scheme concentrates on core land use and development matters that Council can influence and manage and that the State has an interest in. “The Cook Shire has possibly more State interests than any other local government area in Queensland,” Greg says. “There has been a long history of competing stakeholder involvement with natural resource management and cultural heritage issues across the Cape and the corresponding legislative and tenure framework is complex.” Overlays within the draft scheme reflecting State interests include biodiversity, bushfire hazard, character, extractive resources, flood and coastal hazards and landslide hazard. The remoteness of Cape York, its inherent environmental values, native title processes, tenure constraints and climatic extremes create a difficult and challenging platform for Council to adopt a planning a scheme that facilities shirewide economic growth and development. Cook Shire comprises very distinct communities, each with needs and expectations for community services, infrastructure, housing and business and retail facilities. “The Shire’s blue print must balance these needs and expectations against high living costs, high cost of providing services, the housing shortage in Cooktown, isolation caused by extreme weather conditions, a lack of major infrastructure investment and limitations on investment due to land tenure issues,” Greg says. COOK SHIRE A LAND OF CONTRASTS 18 ThreeSixty : Your City, Your Town, Your Community THE TYRANNY OF DISTANCE If you are looking to escape the daily commuter’s gridlock, you’ve come to the right place. The Cook Shire has 2,750 kilometres of local roads in addition to state-owned and national “highways”. Some may be impassable during the wet season, most are unsealed and many will leave your bones rattling even in the heaviest of four-wheel drives. Given the sheer scale of the Shire, the road network is a critical infrastructure item for connecting communities of the Cape and facilitating economic growth and development. The tourism industry is dependent on roads opening to Lakefield National Park after the wet season (hopefully by Easter each year). The remote community of Portland Roads on the eastern side of the Cape can sometimes be isolated for four to five months, accessible only by boat or the Lockhart River airstrip. “In response to these challenges, the draft planning scheme places significant weight through the strategic framework, zone and code provisions to identifying not only key resource areas, but also areas of local resource significance such as hard rock quarries, sand resources and borrow pits.” Greg says. The road to Cairns is sealed and the twice daily air service has improved access to Cooktown while the sealing of the Peninsular Development Road (PDR) through to Weipa (expected to be completed in five years) is a major infrastructure initiative that will have a profound effect on business investment from tourism through pastoral and agricultural industries. ECONOMIC GROWTH Greg says the maintenance of the road network is critical to the economic wellbeing and advancement of the Shire. The draft planning scheme has been supported by a detailed study on extractive resources in the Shire. “There is already private sector investment in the extraction and resources sector but more competition would be healthy and assist in improving infrastructure and housing affordability,” Greg says. “There is significant growth potential with tourism – particularly cultural and nature based tourism. “One example is the sealing of the PDR which will see the tourism season extended and an increased range of visitation to the Cape. “Towns like Laura and Coen will be in a position to capitalise on that with accommodation and support facilities. “With an estimated 60,000 tourist vehicles travelling to the Cape this year, there is significant opportunity for service facilities, including accommodation, within the towns and roadhouses across the Cape. “In terms of Cooktown, through its planning scheme, Council can facilitate business, tourism and industry development by allocating sufficient zoned land for these purposes and setting in place a framework for development that encourages, rather than hinders, development. “Initiatives such as the Cooktown airport industrial subdivision and the tourism accommodation opportunities in the vicinity of the upgraded Endeavour River foreshore are evidence of this.” Mayor Scott says there is great opportunity in the Shire and Council is enthusiastically marketing the region to attract visitors, investors, business and new residents. “Cooktown was identified as Australia’s RV Friendliest Town and was this year’s Tidy Town winner,” Mayor Scott says. “We have won State awards for Healthy Community and the Best Tasting Water in Queensland. Local businesses are winning awards and our schools are excelling in educational results. “We leverage media opportunities associated with the weather, the reef and environmental, social and political issues and support and encourage visitor events like race days, cultural events and business conferences.” Tenure is a major issue for the economic advancement of the shire. Only 5% of the shire is freehold land and Council’s rate base relies on only 2200 properties. Conversion of Crown Land to freehold land is a complex issue with native title considerations at play. This has served to limit expansion opportunities for the towns on the Cape. Through its Planning Scheme, Council has worked with the Eastern Kuku Yalanji people in the South-East of the shire to introduce a Local Plan that facilitates sustainable development of selected “Good Living Areas” for traditional owners to move back on country without requiring development approval. Most of the Good Living Areas are within world heritage listed rainforest and land zoned conservation under the planning scheme. “Cook Shire has a tough and colourful past built around its Indigenous heritage, the pastoral industry, agriculture and mining,” Greg says. “As a planner, in order to effectively plan the shire, it is necessary to embrace the Shire’s unique culture, history and environment. “It is these features, together with recognition of hazards such as flood prone land and hill slope development that will continue to shape the built form and land use, offering lifestyle choice and fostering proud and resilient communities.” Greg Ovenden > Director of Reel Planning < Peter Scott Cook Shire Council Mayor ThreeSixty : Your City, Your Town, Your Community 19 But we consulted – didn’t we? No matter the size of the Council or the type or size of the project, community consultation provides a platform to inform, consult, involve, collaborate and empower residents – the goal of which is public participation. Community consultation allows Councils to: understand current perceptions raise awareness of issues gauge views on options, and identify key issues PRINCIPLES OF CONSULTATION Helen Hutchings of Phillips Group says that although the principles of consultation remain the same regardless of the project, councils small and large need to be clear on why they are engaging the community and whether that community can influence decision-making. “I advise councils to determine the ‘negotiables’ and ‘non-negotiables’ and then explain to the community the key elements of a project that they can provide input on,” Helen says. Road upgrades are a good example, as a good engineering solution is not always a good community solution. “Issues like access, community severance and travel time need to be discussed with residents when options are being considered. “Sometimes there is no easy solution and it is important to discuss this with the community so they have a clear understanding of the reasons behind a decision. Helen also notes that private developers need to have a thorough understanding of community consultation and the effect it can have on their projects. “Private developers also need to decide how much consultation they will undertake and the level of influence a community can have on the development. “It is really important to listen as local residents have a much better idea of local conditions, such as key traffic routes, park usage, flooding patterns, than the developers do. “Often, a much better project outcome can be reached and council’s role is to hold the developer to account on behalf of the community and ensure they are really listening and not just ticking the box. “Principles do not vary but how you apply them might. Size or nature of project can have some influence, but more importantly, it’s about the stage of a project. Helen also points out that timing has a big part to play in the consultation process. “During planning and design, there is much more opportunity to consult and give communities the ability to provide input into the project. “During construction, there is no such thing as community consultation as decisions have been made and the project is proceeding. “At the construction phase, community relations come to the fore and the principles are around timely notification, honesty regarding impacts and prompt response to issues.” 20 ThreeSixty : Your City, Your Town, Your Community IMPACT OF SOCIAL MEDIA Ms Hutchings believes community consultation has evolved over the last decade or so, in line with the advance of technology and in particular social media, which provides greater access to interest and protest groups to voice their views and concerns. “We have definitely seen a shift over the past ten years, particularly as communities become more literate in consultation and demand higher levels of accountability and influence in decision-making,” says Helen. “Sometimes, consultation is being done for consultation’s sake and then no one is happy. This is when the core principle of determining the purpose of consultation becomes so important. “Communities have been a lot faster than government to use social media and technology to galvanise support for or against a project. These technologies mean that anyone within a community can become an opinion leader and they do not necessarily have to be impacted by a project; they may just see it as a negative for their community and have the time and resources to fight it.” It is imperative that councils understand the issue first. An unpopular development, facility or change can cause angst, as the community can and does ‘win’. Equally, councils need to demonstrate a genuine consideration of options and be aware that the NIMBY (not in my back yard) argument will always be loud and clear. The community must be on side. Apart from the obvious political ramifications, Ms Helen Hutchings says communities can and do stop projects – a key risk in all projects. Councils must also ensure they are genuinely consulting so as not to be perceived as just going through a process as a token gesture. “Even if a community is not successful in stopping a project, there can be significant costs or project delays as a result of having to appease an angry community,” she says. “Consultation has to be genuine. If the community cannot influence the outcome, then there is no point undertaking the consultation. “Be prepared to just proceed with the project and weather any outrage, while keeping the community informed. A solid community and stakeholder risk assessment will assist in evaluating whether the potential for outrage outweighs the potential cost/time impacts of community involvement.” THE NIMBY FACTOR Although Helen believes there is no place for NIMBYs when the project has a genuine community or economic development benefit, she says that it is important to listen to all residents and try to address their concerns. “There will never be 100 per cent community acceptance,” she says. “People may not like the outcome but do not give them the opportunity to complain about the process. “Have the difficult conversations, ensure you control the message so the wider community can see the benefits and, where you can, seek to mitigate the impacts on nearby residents, those most affected.” Community consultation need not be expensive with the latest interactive websites and online engagement tools. Primarily, it needs to engage the community and provide the opportunity for a say that is heeded. “The principle of listening can be applied in any situation. Small councils can have the advantage of being more engaged with their communities on a day-to-day basis and this assists when needing to consult on a specific matter,” Helen says. At the construction phase, community relations come to the fore and the principles are around timely notification Information provides the public with balanced and objective material to assist them in understanding the problems, alternatives, opportunities and/or solutions. Consultation is about obtaining public feedback or analysis, alternatives and/or decisions. Involvement is working directly with the public throughout the process to ensure that public concerns and aspirations are consistently understood and considered. Collaboration offers a partnership with the public in each aspect of the decision including the development of alternatives and the identification of the preferred solution. Empowerment places the final decision-making in the hands of the public. Reference: International Association of Public Participation Helen Hutchings Group Executive Director Phillips Group email@example.com ThreeSixty : Your City, Your Town, Your Community 21 BLEACH* FESTIVAL Celebrating community through arts and culture 22 ThreeSixty : Your City, Your Town, Your Community Tourism is a major economic driver for both our city and Australia. At the same time, it is an extremely competitive industry. Travellers have real choices whether they are domestic or international so the importance of renewing our city’s appeal has never been more important. ThreeSixty : Your City, Your Town, Your Community 23 This is particularly important during the ‘off season’. Queensland has a rich history of local cultural festivals and councils are increasingly working in partnership with the arts and cultural organisations to give people a reason to visit their towns and regions. Having the right structures in place to enable these events to succeed and flourish and to achieve ongoing community stimulation is important. Most festival organisers require more than seed funding as few become profitable. The issue of ongoing funding has seen the end of many a great event and as we know, councils’ budgets are stretched meaning such activities and events, no matter how beneficial, must look to other sources such as government grants and private funding. So how can councils remain involved and continue to attract and support the arts and events while divesting control of the associated organisations? The Gold Coast’s Bleach* Festival is a prime example of what can be done with the right structures in place. Held annually in March/April, the festival features local and international talent with sophisticated, contemporary and innovative artistic programming. The festival is an expression of music, theatre, dance and visual arts with outdoor events harnessing the Gold Coast’s natural landscapes as unconventional venues. Bleach* General Manager, Matt Wilson said the development of an effective partnership with the City of Gold Coast was critically important. “Bleach* Festival is committed to the growth and development of the cultural ecology and capacity on the Gold Coast. But having a good idea and product is only one part of it,” Matt said. “The City recognised that a solid governance structure and strong business principles needed to be in place to support a bold and creative artistic vision such as that provided by Bleach* Festival. “Being a not for profit company limited by guarantee, guided by an independent Board, provides an appropriate structure to adapt to change and grow as a business. “The City of the Gold Coast was instrumental in the shift for Bleach* Festival to the independent, best practice governance and structure provided by Bleached Arts Ltd. “It is also important to have a genuine and authentic connection to community which serves to reflect the City’s values through its citizens. City of Gold Coast Mayor Tom Tate said Council’s decision to fast-track culture with a $1.2 million three-year funding commitment, announced in 2014, was already paying dividends. 24 ThreeSixty : Your City, Your Town, Your Community “Our vision is to surprise, inspire and transform communities through the arts, as we move beyond being the Gold Coast’s signature cultural event and become a “must see” event in the national calendar.” City of Gold Coast Mayor Tom Tate said Council’s decision to fast-track culture with a $1.2 million three-year funding commitment, announced in 2014, was already paying dividends. “We have been able to capitalise on what’s fresh about the Gold Coast to create something that says who we are and where we’ve come from as a city. Our unique cultural events, innovative ideas and artworks will define us, they will ignite our and the world’s imagination,” he said. “Ours is an innovative city with an entrepreneurial spirit – and that applies to arts and culture. Supporting Bleach* to become an independent entity with the City as founding member was a great opportunity to lead the way nationally. “We’re supporting artists to take risks, develop new and sustainable business models and generate some of Australia’s most leading edge cultural product.” A key action from this plan was to develop Bleach* as a flagship arts festival. The programming and initiatives driven by the Culture Strategy 2023 framework are quickly establishing the bedrock to build a base and depth of talent and programming not seen in the city before. HISTORY OF THE BLEACH* FESTIVAL 2012 Inaugural Bleach* Festival established as an extension to the Quicksilver and Roxy Pro Professional Surfing Events, celebrating the Gold Coast’s rich coastal history and links 2014 Bleach* Festival endorsed as a significant part of the City of Gold Coast’s Culture Strategy 2023 and Gold Coast 2018 Commonwealth Games™ Cultural Program 2015 Bleached Arts Ltd is formed to oversee the governance and management of Bleach* Festival, as well as other Arts and Culture programs and services on the Gold Coast 2016 Bleach* Festival becomes the whole of City, Festival for the Gold Coast with over 50 events held from Coolangatta in the South to Paradise Point in the North and a number of locations in between Continued over… ThreeSixty : Your City, Your Town, Your Community 25 “So they have to attract alternative funding and this is not available to local government. “Establishing the right structure in a strategic partnership with a community organisation is vital. “Councils want to have a say and feel they can exercise some control over the way their region is promoted and portrayed but they also want to and have to, divest control of the running of these events. “And the organisation needs to be able to attract grants and other sources of funding to keep going and to bring people back year after year.” Some of the options available include contracts, joint ventures, partnerships, companies limited by shares or companies limited by guarantee. In some instances, trust structures may also be added, but this may create an additional level of legislative and regulatory oversight, which is not required but may be desired. The governing document must include specific not-for-profit rules and restrictions. If a council wants to undertake a charitable activity (e.g. an arts and cultural festival or event that can attract funding and donations) they could consider partnering with or establishing a completely new legal entity that can register with the Commonwealth Australian Charities and Not-for-profits Commission. Local governments often have various interests and involvement in some of these, particularly museums, libraries and art galleries – but these types of facilities are expensive to establish and maintain and councils may look to external funding sources which require specific legal structures to be established to enable them to run as charities and benefit from donations. Matt Wilson Bleach* Festival General Manager Tom Tate City of Gold Coast Mayor Richard Hundt Senior Associate The City also supported the establishment of a fully professional contemporary dance company, is attracting partners and cultural events, investing in the professional development of local artists, supporting established and emerging local festivals and events to reach their full potential and is well under way to nurturing ideas that are distinctly Gold Coast. Richard Hundt, Senior Associate at McCullough Robertson, worked with the City of Gold Coast to establish a structure that enabled Bleach* to operate as not-for-profit charitable company, making it eligible for grants and donations, a key factor in the festival’s ability to continue on an annual basis. Richard said councils are increasingly exploring new structures to achieve specific projects and outcomes and isolate certain levels of risk and activities. “All councils want to enhance community engagement, but few are able to provide the funds or resources to make arts and cultural events successful on an ongoing basis,” Richard said. All councils want to enhance community engagement, but few are able to provide the funds or resources to make arts and cultural events successful on an ongoing basis. 26 ThreeSixty : Your City, Your Town, Your Community In the face of changing societal norms, land users are increasingly committing to sustainable development reflecting the management and protection of the environment. A critical element in this mix is the management of Indigenous cultural heritage. Since 2004, the Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Island Cultural Heritage Act 2003 (Qld) (Indigenous Cultural Heritage Acts) have established a regime to manage the impact of land users’ activities on Indigenous cultural heritage. While certain business sectors have demonstrated a high level of literacy around implementing the purpose of the Indigenous Cultural Heritage Acts, the extent to which the development industry and planners has complied with the legislation is less clear. As an increasing number of Traditional Owner groups seek to be actively involved in the management of their Indigenous cultural heritage, the interface with the approvals framework under the new Planning Act 2016 will be drawn under the microscope. Anecdotal evidence suggests that developers and planners, unaware of their legislative obligations, are progressing projects without due regard for cultural heritage. The main issue appears to be a disconnection between planning approvals and the cultural heritage acts, including: no development triggers lack of prescription in defining management processes inability to provide a cultural heritage layer in state assessments lack of industry exposure to the management of cultural heritage, and limited understanding of the cultural heritage compliance regime. WHAT DO LAND USERS NEED TO DO? The key for land users to achieve compliance and mitigate project risk is simple – education and forward planning. The current planning and development approvals processes do not encourage culturally appropriate approaches to the management of cultural heritage. Rather than assume cultural heritage will not be impacted by the development, it would be more prudent for industry to adopt a presumptive view that cultural heritage needs to be considered for every project. The particular strategy adopted for each project is ultimately informed by the compliance framework of the Cultural Heritage Acts. Importantly, the existence of cultural heritage within a development footprint should not be construed as the end of development opportunities, but rather the start of a cultural heritage assessment. In accepting that cultural heritage can never be completely mapped or appropriately featured in a planning scheme, other planning instrument, overlay or schedule, consultation with Traditional Owners in some form or another is key. Inevitably, the devil is always in the detail. Having regard to the circumstances surrounding each project, land users must approach cultural heritage management on a case by case basis cognisant of the issues discussed above. INDIGENOUS CULTURAL HERITAGE AND THE DEVELOPMENT INDUSTRY Liam Davis Senior Associate firstname.lastname@example.org ThreeSixty : Your City, Your Town, Your Community 27 February 2017 02 03 Local Government – In House Counsel Forum McCullough Robertson – Brisbane, Qld For more information email@example.com August 17 McCullough Robertson – Gladstone Construction Conference For more information contact firstname.lastname@example.org 17 19 IPWEA NQ Branch Conference, Hinchinbrook For more information www.ipwea.org 18 19 LGAQ Future Cities Summit, Brisbane For more information www.ipwea.org CALENDAR OF EVENTS AUGUST FEBRUARY November 08 10 IPWEAQ State Conference, Brisbane For more information www.ipwea.org 17 LGMA CEOs Forum McCullough Robertson Brisbane, Qld For more information lgmaqld.org.au 18 20 LGMA Village Workshops, Brisbane For more information lgmaqld.org.au 2016 September 01 McCullough Robertson – Brisbane Construction Conference For more information contact email@example.com 06 08 LGMA – Annual Conference, Douglas Shire For more information lgmaqld.org.au 19 20 LGAQ Annual Conference, Toowoomba For more information lgaq.asn.au October 28 ThreeSixty : Your City, Your Town, Your Community If you would like to contribute or have an idea for an article in our next edition please contact Kate Chaundy, Business Development and Marketing Senior Consultant at McCullough Robertson – firstname.lastname@example.org (07) 3233 8832. Our contributors: Minister for Local Government, Planning, Trade and Investment, The Hon. Jackie Trad n Local Buy Chief Executive Officer, Tim Rose n Cook Shire Council Mayor, Peter Scott n Goondiwindi Regional Council Mayor, Graeme Scheu n Barcaldine Regional Mayor, Council Rob Chandler n Reel Planning Director, Greg Ovenden n Phillips Group Executive Director, Helen Hutchings n Moreton Bay Regional Council Mayor, Allan Sutherland n Bleach* Festival General Manager, Matt Wilson n City of Gold Coast Mayor Tom Tate n Troy Webb, Partner and head of McCullough Robertson’s Local Government Industry Group n Cameron Dean, Partner, McCullough Robertson n Tim Hanmore, Partner, McCullough Robertson n Melanie Simmonds, Special Counsel, McCullough Robertson n Goran Gelic, Senior Associate, McCullough Robertson n Richard Hundt, Senior Associate, McCullough Robertson n Liam Davis, Senior Associate, McCullough Robertson Cyber Security Is your council protected? Cyber cover is fast becoming the ‘new frontier’ of insurance. We are seeing many insurance products that are either less than they present to be or do not cover what the clients actually need or expect. Often, this insurance is being approached from the wrong perspective and putting the cart before the horse. At Allegiant IRS we do things a little differently. We take a big picture view to look at the overall process to mitigate risk and design the most appropriate insurance program. The approach to cyber risks is no different. We see the following steps, in this order of importance, as imperative for all organisations: Allegiant IRS Contact Allegiant IRS Adam Battista T +61 7 3106 4290 W www.allegiantirs.com.au A McCullough Robertson Company 1. Reviewing an organisation’s cyber exposure and quantifying that exposure in outcomes and dollars. No one is doing this in the market because most IT specialists say ‘it’s not possible’ – we are partnering with leading industry specialists to assist organisations to derive a quantified risk profile. 2. When a cyber-event happens the organisation immediately needs an IT ‘response team’. Very few organisations or insurers have developed that ‘response team’ and the protocols that go around the actions necessary to combat the cyber event. 3. Once the organisation knows the risk and its quantification it can appropriately reserve/finance its response. That may mean self-funding or transferring part of that funding to an insurer. This is where the insurance policies become relevant – the horse is put back in front of the cart rather than behind. BRISBANE Level 11, 66 Eagle Street Brisbane QLD 4000 GPO Box 1855, Brisbane QLD 4001 Phone +61 7 3233 8888 Fax +61 7 3229 9949 SYDNEY Level 32 MLC Centre, 19 Martin Place Sydney NSW 2000 GPO Box 462, Sydney NSW 2001 Phone +61 2 8241 5600 Fax +61 2 8241 5699 MELBOURNE Level 27, 101 Collins Street Melbourne VIC 3000 GPO Box 2924, Melbourne VIC 3001 Phone +61 3 9067 3100 Fax +61 3 9067 3199 NEWCASTLE Level 4, 251 Wharf Road Newcastle NSW 2300 PO Box 394, Newcastle NSW 2300 Phone +61 2 4914 8900 Fax +61 2 4924 8999 email@example.com www.mccullough.com.au @MCRlaw facebook.com/MCRlaw
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ThreeSixty - August 2016
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