Local Government and Planning Legislation Amendment Act 2010

Local Government and Planning Legislation Amendment Act 2010

No. 58 of 2010

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Local Government Act 1989

3Definitions

4Entitlements relating to enrolment

5Section 55D substituted

55DProhibition on Council

6Responsibilities of Chief Executive Officer

7Review of allowance limits and ranges

8Definitions—amendment of section 76AA

9Direct and indirect interests

10Direct interest

11Indirect interest because of conflicting duties

12Indirect interest because of receipt of an applicable gift

13New section 78E inserted

78EIndirect interest because of impact on residential
amenity

14Disclosure of conflict of interest

15Section 79A repealed

16Certain situations where Councillor taken to not have a
conflict of interest

17Requirements to be observed by an assembly of Councillors

18Members of Council staff to disclose conflicts of interest in respect of delegated functions

19Persons to disclose interests to Council when providing advice

20Register of interests

21Functions of the Chief Executive Officer

22New section 97B inserted

97BDefinition of senior officer remuneration threshold

23Power to make local laws

24Delegations

25Amendment of section 219B definition

26When is a review required?

27Repeal of section 219E

28Conduct of review

29Amendment of section 219I definition

30Section 219K substituted

219KPower of Minister

31Repeal of section 219M

32New Division 4 inserted

Division 4—Review and subdivision review expenses

219PVictorian Electoral Commission's expenses

33New Part 12 inserted

Part 12—SavingS and Transitional
provisions

244Local Government (Consequential Provisions) Act1989

34Amendment of Schedule 6

Part 3—City of Melbourne Act 2001

35New Part 4B inserted

Part 4B—Environmental Upgrade Agreements

27LDefinitions

27MEnvironmental upgrade agreement

27NConditions to be met before Council may enter into environmental upgrade agreement

27OEnvironmental upgrade charge

27PEnvironmental upgrade agreement provisions

27QResponsibilities of the Council

27RQuarterly statement

27SDelegation to CEO

Part 4—Planning and Environment Act 1987

36Exemption from giving notice

37Definitions in Part 4AA

38Governor in Council may establish development assessment committees

39Variation or revocation of order establishing DAC

40Functions of a DAC

41Section 97ME substituted

97MEApplications to be considered by a DAC

42Members

43New section 219 inserted

219Transitional provisions—DAC Activity Centre Areas

Part 5—Amendment of Other Acts

Division 1—Crown Land (Reserves) Act 1978

44Definition

45Consequential amendment

46Appointment of committees of management

47Consequential amendments

Division 2—Amendment of Environment Protection Act1970

48Amendment of section 50K

Division 3—Repeal of Local Government (Consequential
Provisions) Act1989

49Repeal of Local Government (Consequential Provisions) Act1989

Part 6—Repeal of Amending Act

50Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Local Government and Planning Legislation Amendment Act 2010[†]

No. 58 of 2010

[Assented to 14 September 2010]

Local Government and Planning Legislation Amendment Act 2010
No. 58 of 2010

The Parliament of Victoriaenacts:

Part 6—Repeal of Amending Act

Local Government and Planning Legislation Amendment Act 2010
No. 58 of 2010

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Local Government Act 1989—

(i)to improve Council governance; and

(ii)to enhance the operation of the Act; and

(b)to amend the City of Melbourne Act 2001 to enable the Melbourne City Council to enter into environmental upgrade agreements; and

(c)to amend the Planning and Environment Act 1987 to make miscellaneous amendments to Part 4AA of that Act which relates to development assessment committees; and

(d)to amend the CrownLand (Reserves) Act 1978 and the Environment Protection Act 1970 to make consequential amendments to those Acts; and

(e)to repeal the Local Government (Consequential Provisions) Act 1989.

2Commencement

s. 2

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 30 June 2011, it comes into operation on that day.

______

Part 2—Local Government Act 1989

3Definitions

s. 3

See:
Act No.
11/1989.
Reprint No. 10
as at
2 April 2009
and amending
Act Nos
53/2009, 64/2009, 66/2009, 68/2009, 69/2009, 94/2009, 6/2010 and 16/2010.
LawToday:
www.
legislation.
vic.gov.au

(1)Insert the following definition in section 3(1) of the Local Government Act 1989—

"advisory committee means any committee established by the Council, other than a special committee, that provides advice to—

(a)the Council; or

(b)a special committee; or

(c)a member of Council staff who has been delegated a power, duty or function of the Council under section98;".

(2)In section 3(1) of the Local Government Act 1989—

(a)in the definition of gift disclosure threshold, for "$200" substitute "$500";

(b)in the definition of senior officer, for paragraph (c) substitute—

"(c)any other member of Council staff whose total remuneration exceeds $124000 or a higherthreshold amount specified by the Minister in accordance with section 97B;".

4Entitlements relating to enrolment

In section 11(7) of the Local Government Act 1989, for "Unless section 19 applies, enrolment" substitute "Enrolment".

5Section 55D substituted

s. 5

For section 55D of the Local Government Act 1989substitute—

"55D Prohibition on Council

(1)A Council must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed, any advertisement, handbill, pamphlet or notice during the election period unless the advertisement, handbill, pamphlet or notice has been certified, in writing, by the Chief Executive Officer.

(2)The Chief Executive Officer must not intentionally or recklessly certify an electoral advertisement, handbill, pamphlet or notice during the election period unless it only contains information about the election process.

Penalty:60 penalty units.

(3)Despite section 98(2), the Chief Executive Officer must not delegate the power to certify any advertisement, handbill, pamphlet or notice under this section to a member of Council staff.

(4)A Councillor or member of Council staff must not intentionally or recklessly print, publish or distribute or cause, permit or authorise to be printed, published or distributed an electoral advertisement, handbill, pamphlet or notice during the election period on behalf of, or in the name of, the Council or on behalf of, or in the name of, a Councillor using Council resources if the electoral advertisement, handbill, pamphlet or notice has not been certified by the Chief Executive Officer under this section.

Penalty:60 penalty units.".

6Responsibilities of Chief Executive Officer

s. 6

(1)Section 62A(2) of the Local Government Act 1989 is repealed.

(2)In section 62A(3) of the Local Government Act 1989—

(a)omit "retained under subsection (2)";

(b)after "office hours" insert "for a period of 4years from the date that it is given under section 62".

7Review of allowance limits and ranges

In section 73B(5) of the Local Government Act 1989, after "must increase" insert "the level of".

8Definitions—amendment of section 76AA

(1)In section 76AA of the Local Government Act 1989, in the definition of assembly of Councillors—

(a)after "means a" insert "meeting of an advisory committee of the Council, if at least one Councillor is present, or a";

(b)for "3 Councillors" substitute "half of the Councillors";

(c)after "a special committee of the Council," insert "an audit committee established under section 139,".

(2)Insert the following definition in section 76AA of the Local Government Act 1989—

"family has the same meaning as family member has in section 78;".

9Direct and indirect interests

s. 9

(1)In section 77A(3) of the Local Government Act 1989—

(a)in paragraph (e), for "78D." substitute "78D; or";

(b)after paragraph (e) insert—

"(f)a residential amenity that may be altered as specified in section 78E.".

(2)For section 77A(5) of the Local Government Act 1989substitute—

"(5) A relevant person does not have a conflict of interest in a matter if the direct interest or indirect interest the relevant person holds—

(a)is heldas a resident, ratepayer or voterand does not exceed the interests generally held by other residents, ratepayers or voters; or

(b)is held in common with a large class of persons and does not exceed the interests generally held by the class of persons.

(6)A relevant person does not have a conflict of interest in a matter if the relevant person—

(a)does not know the circumstances that give rise to the conflict of interest; and

(b)would not reasonably be expected to know the circumstances that give rise to the conflict of interest.".

10Direct interest

s. 10

(1)For section 77B(2)(b) of the Local Government Act 1989substitute—

"(b)the person has, or the person together with a member or members of the person's family have, a controlling interest in a company or other body that has a direct interest in the matter.".

(2)After section 77B(2) of the Local Government Act 1989insert—

"(3)A person who has a membership in a club or organisation that has a direct interest in a matter—

(a)does not, by reason of that membership,have a direct interest in the matter under subsection (1); and

(b)does not havean indirect interest in the matter, by reason of that membership, unless the person has an indirect interest in the matter under section78A, 78B or 78C.

(4)In subsection (2), controlling interest has the same meaning as it has in section 72(2) of the Payroll Tax Act 2007.".

11Indirect interest because of conflicting duties

In section 78B(3) of the Local Government Act 1989—

(a)in paragraph (a), after "person is" insert
", or has been,";

(b)for paragraph (b) substitute—

"(b)the person only holds a position in a not-for-profit organisation for which the person receives no remuneration and the person was appointed to the relevant special committee of the Council to be a representative of the non-for-profit organisation;

(ba)the person only holds a position, with the Council's approvalas a representative of the Council, in an organisation for which the person receives no remuneration;".

12Indirect interest because of receipt of an applicable gift

s. 12

(1)For section 78C(1) of the Local Government Act 1989substitute—

"(1)In this section, applicable gift means one or more gifts with a total value of, or more than, the gift disclosure threshold, received from a person or persons specified in subsection (2) in the 5years preceding the decision or the exercise of the power, duty or function but does not include—

(a)reasonable hospitality received by the person at an event or function the person attended in an official capacity as the Mayor, a Councillor, a member of Council staff or a member of a special committee; or

(b)a gift, other than an election campaign donation, that was received by the person more than 12 months before the person became a Councillor, a member of Council staff or a member of a special committee.".

(2)After section 78C(2) of the Local Government Act 1989insert—

"(3)For the purposes of determining when a person became a Councillor or member of a special committee under subsection (1)(b), if the person is re-elected or reappointed as a Councillor or a member of a special committee, on completion of his or her term of office, the previous term of office served by that person as a Councillor or member of a special committee must be counted as continuous service with any service completed by the person after the person's re-election or reappointment.".

13New section 78E inserted

s. 13

After section 78D of the Local Government Act 1989insert—

"78E Indirect interest because of impact on residential amenity

A person has an indirect interest in a matter if there is a reasonable likelihood that the residential amenity of the person will be altered if the matter is decided in a particular way.".

14Disclosure of conflict of interest

(1)For section 79(1) of the Local Government Act 1989substitute—

"(1)If a Councillor or member of a special committee has a conflict of interest in a matter which is to beconsidered or discussed at a meeting of the Council or the special committee, the Councillor or member must, if he or she is attending the meeting, disclose the conflict of interest in accordance with subsection (2).".

(2) In section 79(2)(b)(ii) of the Local Government Act 1989, for "or 78D" substitute "78D or 78E".

(3)Section 79(3) and (4) of the Local Government Act 1989 are repealed.

15Section 79A repealed

s. 15

Section 79A of the Local Government Act 1989 is repealed.

16Certain situations where Councillor taken to not have a conflict of interest

In section 79C(1) of the Local Government Act 1989—

(a)in paragraph (j)(ii), for "Councillor." substitute "Councillor;";

(b)after paragraph (j) insert—

"(k)a submission provided to an electoral representation review under section219F;

(l)a submission provided for the purposes of asubdivision review conducted under section 219N.".

17Requirements to be observed by an assembly of Councillors

(1)In section 80A(1) of the Local Government Act 1989—

(a)in paragraph (c), for "subsection (3)." substitute "subsection (3);";

(b)after paragraph (c) insert—

"(d)whether a Councillor who has disclosed a conflict of interest as required by subsection (3) leaves the assembly.".

(2)For section 80A(2) of the Local Government Act 1989substitute—

"(2) The Chief Executive Officer must ensure that the written record of an assembly of Councillors is, as soon as practicable—

(a)reported at an ordinary meeting of the Council; and

(b)incorporated in the minutes of that Council meeting.".

(3)In section 80A(3) of the Local Government Act 1989, after "Councillors knows" insert
", or would reasonably be expected to know,".

18Members of Council staff to disclose conflicts of interest in respect of delegated functions

s. 18

(1)For section 80B(1) of the Local Government Act 1989substitute—

"(1)This section applies to—

(a)a member of Council staff who has been delegated a power, duty or function of the Council under section 98(1) or 98(3) or under another Act;

(b)the Chief Executive Officer who has been given a power, duty or function under this Act or another Act;

(c)any other member of Council staff who has been delegated a power, duty or function of the Chief Executive Officer under section 98(2).".

(2)After section 80B(2) of the Local Government Act 1989insert—

"(3)The Chief Executive Officer does not have a conflict of interest in a matter if the matter only relates to—

(a)the adoption or amendment of a policy relating to Council staff generally;

(b)the adoption of a code of conduct for Council staff under section 95AA;

(c)a decision to delegate a power, duty or function to a member of Council staff.".

19Persons to disclose interests to Council when providing advice

s. 19

(1)In section 80C(2) of the Local Government Act 1989—

(a)for "a direct or indirect interest" substitute "a conflict of interest";

(b)after "type of interest" insert "constituting the conflict of interest".

(2)In section 80C(5) of the Local Government Act 1989, for "78D" substitute "78E".

20Register of interests

(1)Insert the following definition in section 81(1) of the Local Government Act 1989—

"relative has the same meaning as relative has in section 78;".

(2)In section 81(3) of the Local Government Act 1989, for "re-appointed or" substitute "reappointed".

(3)In section 81(5) of the Local Government Act 1989—

(a)in paragraph (a), for "of" substitute "after";

(b)in paragraph (b), for "of" substitute "after".

(4)For section 81(7)(e) of the Local Government Act 1989substitute—

"(e)particulars of any gift of or above the amount or value of the gift disclosure threshold received by him or her, either directly or indirectly, other than a gift received—

(i)from a person who is a relative of him or her; or

(ii)as hospitality at an event or function he or she attended in an official capacity as the Mayor, a Councillor, a member of Council staff or a member of a special committee;".

(5)Section 81(15) of the Local Government Act 1989 is repealed.

21Functions of the Chief Executive Officer

s. 21

In section 94A(1) of the Local Government Act 1989—

(a)in paragraph (d), for "Council." substitute "Council; and";

(b)after paragraph (d) insert—

"(e)carrying out the Council's responsibilities as a deemed employer with respect to Councillors, as deemed workers, which arise under or with respect to the Accident Compensation Act 1985or the Accident Compensation (WorkCover Insurance) Act 1993.

Note

See section 14AA of the Accident Compensation Act 1985.".

22New section 97B inserted

After section 97A of the Local Government Act 1989 insert—

"97B Definition of senior officer remuneration threshold

(1) If a review conducted by the Minister under section 73B results in a finding that Councillor and Mayoral allowances should be increased by the adjustment factor within the meaning of that section, for the purposes of paragraph (c) of the definition of senior officer,the Minister must determine a higher threshold amount by—

(a)applying the adjustment factor specified by the Minister under section 73B to—

(i)if the review conducted under section 73B is the first review to be conducted after the commencement of section 22 of the Local Government and Planning Legislation Amendment Act 2010—$124000 and then rounding that amount to the nearest $1000; or

(ii)if the review is a subsequent review—the higher threshold amount determined by the Minister under this section after the last review and rounding that amount to the nearest $1000.

s. 22

(2)After a review by the Minister is conducted under section 73B and the Minister has applied the adjustment factor determined under that section as required under this section, the Minister must, by notice published in the Government Gazette specifythe higher threshold amountfor the purposes of paragraph (c) of the definition of senior officer as determined under subsection(1).".

23Power to make local laws

s. 23

After section 111(4) of the Local Government Act 1989insert—

"(4A)A local law is inoperative to the extent that it is inconsistent with a planning scheme that is in force in the municipal district of a Council.".

24Delegations

In section 114(c) of the Local Government Act 1989omit "a Councillor or".

25Amendment of section 219B definition

In section 219B of the Local Government Act 1989, for the definition of reviewer substitute—

"reviewer means the Victorian Electoral Commission established under section 6 of the Electoral Act 2002.".

26When is a review required?

(1)In section 219C(1) of the Local Government Act 1989—

(a)paragraph (a) is repealed;

(b)in paragraph (b), for "second" substitute "third";

(c)in paragraph (c), after "at any" insert "other".

(2)Section 219C(2) of the Local Government Act 1989 is repealed.

(3)In section 219C(3) of the Local Government Act 1989—

(a)omit "(1)(a) or";

(b)paragraph (b) is repealed.

(4)After section 219C(3) of the Local Government Act 1989insert—

"(4)The Minister must give notice that a review be conducted in respect of a particular Council under subsection (1)(c) if—

(a)a subdivision review (within the meaning of Division 3) has been conducted under section 219N since the last electoral representation review for the Council; and

(b)the Minister has subsequently received written notification from the Victorian Electoral Commission under section 219J; and

(c)a review is not required under subsection (1)(b) before the next general election.

(5)The reviewer must notify the Council and the Minister in writing, at least 60 days before a review is to commence, of the date that the review will commence.

(6) The Minister must, on and after the commencement of section 26 of the Local Government and Planning Legislation Amendment Act 2010, specify by notice in the Government Gazette a date that is a date before the relevant general electionby when the next review in respect of a particular Council must be completed.".

27Repeal of section 219E

s. 27

Section 219E of the Local Government Act 1989 is repealed.

28Conduct of review

s. 28

(1)In section 219F(4)(b) of the Local Government Act 1989, for "14 days" substitute "28 days".

(2)Section 219F(5) of the Local Government Act 1989 is repealed.

(3)In section 219F(7)(d) of the Local Government Act 1989, for "21 days" substitute "28 days".

29Amendment of section 219I definition

In section 219I of the Local Government Act 1989, for the definition of reviewer substitute—

"reviewer means the Victorian Electoral Commission established under section 6 of the Electoral Act 2002;".

30Section 219K substituted

For section 219K of the Local Government Act 1989substitute—

"219K Power of Minister

If the Minister receives notice from the Victorian Electoral Commission under section 219J in relation to a Council, the Minister may—

(a)require the reviewer to conduct a subdivision review of the Council; and

(b)notify the Council that a subdivision review is required.".

31Repeal of section 219M

Section 219M of the Local Government Act 1989 is repealed.

32New Division 4 inserted

s. 32

After section 219O of the Local Government Act 1989insert—

"Division 4—Review and subdivision review expenses

219PVictorian Electoral Commission's expenses

The Victorian Electoral Commission may send to each Council an account of the reasonable expenses incurred as a consequence of the reviewer conducting anelectoral representation review under section219F or a subdivision review under section219N.".

33New Part 12 inserted

After Part 11 of the Local Government Act 1989insert—

"______

Part 12—SavingS and Transitional provisions

244Local Government (Consequential Provisions) Act1989

Despite the repeal of the Local Government (Consequential Provisions) Act 1989 (the 1989 Act)by the Local Government and Planning Legislation Amendment Act 2010, sections 5(4) and 12 of that 1989 Act continue to apply as if that 1989 Act had not been repealed.".

34Amendment of Schedule 6

s. 34

In clause 1 of Schedule 6 to the Local Government Act 1989, for the definition of trade union substitute—

"trade union means—

(a)an employee organisation within the meaning of section 12 of the Fair Work Act 2009 of the Commonwealth;

(b)an association of employees that is registered or recognised as a trade union (however described) under the law of a State or a Territory of the Commonwealth;