Local Government and Planning Legislation Amendment Act 2010

i Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—LOCAL GOVERNMENT ACT 1989 3 3 Definitions 3 4 Entitlements relating to enrolment 3 5 Section 55D substituted 4 55D Prohibition on Council 4 6 Responsibilities of Chief Executive Officer 5 7 Review of allowance limits and ranges 5 8 Definitions—amendment of section 76AA 5 9 Direct and indirect interests 6 10 Direct interest 7 11 Indirect interest because of conflicting duties 7 12 Indirect interest because of receipt of an applicable gift 8 13 New section 78E inserted 9 78E Indirect interest because of impact on residential amenity 9 14 Disclosure of conflict of interest 9 15 Section 79A repealed 10 16 Certain situations where Councillor taken to not have a conflict of interest 10 17 Requirements to be observed by an assembly of Councillors 10 18 Members of Council staff to disclose conflicts of interest in respect of delegated functions 11 19 Persons to disclose interests to Council when providing advice 12 20 Register of interests 12 21 Functions of the Chief Executive Officer 13 22 New section 97B inserted 13 97B Definition of senior officer remuneration threshold 13 23 Power to make local laws 15 24 Delegations 15 25 Amendment of section 219B definition 15 -- 1 of 41 -- Section Page ii 26 When is a review required? 15 27 Repeal of section 219E 16 28 Conduct of review 17 29 Amendment of section 219I definition 17 30 Section 219K substituted 17 219K Power of Minister 17 31 Repeal of section 219M 17 32 New Division 4 inserted 18 Division 4—Review and subdivision review expenses 18 219P Victorian Electoral Commission's expenses 18 33 New Part 12 inserted 18 PART 12—SAVINGS AND TRANSITIONAL PROVISIONS 18 244 Local Government (Consequential Provisions) Act 1989 18 34 Amendment of Schedule 6 19 PART 3—CITY OF MELBOURNE ACT 2001 20 35 New Part 4B inserted 20 PART 4B—ENVIRONMENTAL UPGRADE AGREEMENTS 20 27L Definitions 20 27M Environmental upgrade agreement 20 27N Conditions to be met before Council may enter into environmental upgrade agreement 21 27O Environmental upgrade charge 23 27P Environmental upgrade agreement provisions 25 27Q Responsibilities of the Council 27 27R Quarterly statement 27 27S Delegation to CEO 28 PART 4—PLANNING AND ENVIRONMENT ACT 1987 29 36 Exemption from giving notice 29 37 Definitions in Part 4AA 29 38 Governor in Council may establish development assessment committees 32 39 Variation or revocation of order establishing DAC 32 40 Functions of a DAC 32 41 Section 97ME substituted 33 97ME Applications to be considered by a DAC 33 42 Members 33 43 New section 219 inserted 33 219 Transitional provisions—DAC Activity Centre Areas 33 -- 2 of 41 -- Section Page iii PART 5—AMENDMENT OF OTHER ACTS 34 Division 1—Crown Land (Reserves) Act 1978 34 44 Definition 34 45 Consequential amendment 34 46 Appointment of committees of management 34 47 Consequential amendments 35 Division 2—Amendment of Environment Protection Act 1970 36 48 Amendment of section 50K 36 Division 3—Repeal of Local Government (Consequential Provisions) Act 1989 36 49 Repeal of Local Government (Consequential Provisions) Act 1989 36 PART 6—REPEAL OF AMENDING ACT 37 50 Repeal of amending Act 37 ═══════════════ ENDNOTES 38 -- 3 of 41 -- 1 Local Government and Planning Legislation Amendment Act 2010 † No. 58 of 2010 [Assented to 14 September 2010] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes 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 Victoria -- 4 of 41 -- Part 1—Preliminary Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 2 (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 Crown Land (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. 2 Commencement (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. __________________ s. 2 -- 5 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 3 PART 2—LOCAL GOVERNMENT ACT 1989 3 Definitions (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 section 98;". (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 $124 000 or a higher threshold amount specified by the Minister in accordance with section 97B;". 4 Entitlements relating to enrolment In section 11(7) of the Local Government Act 1989, for "Unless section 19 applies, enrolment" substitute "Enrolment". 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 -- 6 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 4 5 Section 55D substituted For section 55D of the Local Government Act 1989 substitute— "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 s. 5 -- 7 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 5 certified by the Chief Executive Officer under this section. Penalty: 60 penalty units.". 6 Responsibilities of Chief Executive Officer (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 4 years from the date that it is given under section 62". 7 Review of allowance limits and ranges In section 73B(5) of the Local Government Act 1989, after "must increase" insert "the level of". 8 Definitions—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;". s. 6 -- 8 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 6 9 Direct and indirect interests (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 1989 substitute— "(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 held as a resident, ratepayer or voter and 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.". s. 9 -- 9 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 7 10 Direct interest (1) For section 77B(2)(b) of the Local Government Act 1989 substitute— "(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 1989 insert— "(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 have an indirect interest in the matter, by reason of that membership, unless the person has an indirect interest in the matter under section 78A, 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.". 11 Indirect 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 s. 10 -- 10 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 8 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 approval as a representative of the Council, in an organisation for which the person receives no remuneration;". 12 Indirect interest because of receipt of an applicable gift (1) For section 78C(1) of the Local Government Act 1989 substitute— "(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 5 years 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 1989 insert— "(3) For the purposes of determining when a person became a Councillor or member of a special committee under subsection (1)(b), if s. 12 -- 11 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 9 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.". 13 New section 78E inserted After section 78D of the Local Government Act 1989 insert— "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.". 14 Disclosure of conflict of interest (1) For section 79(1) of the Local Government Act 1989 substitute— "(1) If a Councillor or member of a special committee has a conflict of interest in a matter which is to be considered 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. s. 13 -- 12 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 10 15 Section 79A repealed Section 79A of the Local Government Act 1989 is repealed. 16 Certain 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 section 219F; (l) a submission provided for the purposes of a subdivision review conducted under section 219N.". 17 Requirements 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 1989 substitute— "(2) The Chief Executive Officer must ensure that the written record of an assembly of Councillors is, as soon as practicable— s. 15 -- 13 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 11 (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,". 18 Members of Council staff to disclose conflicts of interest in respect of delegated functions (1) For section 80B(1) of the Local Government Act 1989 substitute— "(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 1989 insert— "(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; s. 18 -- 14 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 12 (c) a decision to delegate a power, duty or function to a member of Council staff.". 19 Persons to disclose interests to Council when providing advice (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". 20 Register 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 1989 substitute— "(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 s. 19 -- 15 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 13 (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. 21 Functions of the Chief Executive Officer 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 1985 or the Accident Compensation (WorkCover Insurance) Act 1993. Note See section 14AA of the Accident Compensation Act 1985.". 22 New 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 s. 21 -- 16 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 14 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— $124 000 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. (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 specify the higher threshold amount for the purposes of paragraph (c) of the definition of senior officer as determined under subsection (1).". s. 22 -- 17 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 15 23 Power to make local laws After section 111(4) of the Local Government Act 1989 insert— "(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.". 24 Delegations In section 114(c) of the Local Government Act 1989 omit "a Councillor or". 25 Amendment 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.". 26 When 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. s. 23 -- 18 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 16 (4) After section 219C(3) of the Local Government Act 1989 insert— "(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 election by when the next review in respect of a particular Council must be completed.". 27 Repeal of section 219E Section 219E of the Local Government Act 1989 is repealed. s. 27 -- 19 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 17 28 Conduct of review (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". 29 Amendment 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;". 30 Section 219K substituted For section 219K of the Local Government Act 1989 substitute— "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.". 31 Repeal of section 219M Section 219M of the Local Government Act 1989 is repealed. s. 28 -- 20 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 18 32 New Division 4 inserted After section 219O of the Local Government Act 1989 insert— "Division 4—Review and subdivision review expenses 219P Victorian 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 an electoral representation review under section 219F or a subdivision review under section 219N.". 33 New Part 12 inserted After Part 11 of the Local Government Act 1989 insert— "__________________ PART 12—SAVINGS AND TRANSITIONAL PROVISIONS 244 Local Government (Consequential Provisions) Act 1989 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.". s. 32 -- 21 of 41 -- Part 2—Local Government Act 1989 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 19 34 Amendment of Schedule 6 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; (c) an association of employees a principal purpose of which is the protection and promotion of the employees' interest in matters concerning their employment.". __________________ s. 34 -- 22 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 20 PART 3—CITY OF MELBOURNE ACT 2001 35 New Part 4B inserted After Part 4A of the City of Melbourne Act 2001 insert— 'PART 4B—ENVIRONMENTAL UPGRADE AGREEMENTS 27L Definitions In this Part— environmental upgrade agreement means an agreement entered into in accordance with section 27M; environmental upgrade charge means a charge declared under section 27O; lending body means the person who advances funds under the environmental upgrade agreement; primary parties means the Council, the lending body and the owner of the rateable land. 27M Environmental upgrade agreement (1) Subject to section 27N, the primary parties may enter into an environmental upgrade agreement in respect of rateable land, with an existing building on it, that is entirely or predominately used for non-residential purposes, to fund works that improve the energy, water or environmental efficiency or sustainability of the building on that rateable land. (2) By agreement of the primary parties to an environmental upgrade agreement, the environmental upgrade agreement may also s. 35 See: Act No. 5/2001. Reprint No. 1 as at 1 July 2007 and amending Act Nos 35/2008, 67/2008 and 64/2009. LawToday: www. legislation. vic.gov.au -- 23 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 21 be entered into by any other person that the primary parties consider should be a party to the environmental upgrade agreement. (3) In addition to any provisions agreed to by the primary parties and any other parties to an environmental upgrade agreement, an environmental upgrade agreement must comply with, and provide for, the matters specified in section 27P(1) to (3). 27N Conditions to be met before Council may enter into environmental upgrade agreement (1) The Council must not enter into an environmental upgrade agreement unless— (a) the Council receives the following written notices, at least 28 days before the agreement is entered into— (i) notice from the owner that the owner has complied with the owner's obligations under subsection (2); (ii) notice from the lending body confirming that the requirements specified in subsection (3) have been fulfilled; (b) each occupier, that would be liable to pay for all or part of any environmental upgrade charge levied as a consequence of an environmental upgrade agreement being entered into, is provided with a statement specifying— (i) the total amount of the payments that the occupier would be required to pay; s. 35 -- 24 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 22 (ii) a repayment schedule that details when the occupier's liability would become payable and, if the occupier's liability can be paid by instalment, the amount of each instalment and the timing of each instalment; (iii) that the occupier may consent or object, in writing, to the imposition of the environmental upgrade charge in the manner set out in the statement; (c) each occupier that has received a statement under paragraph (b) has consented to the imposition of the environmental upgrade charge in the manner set out in the statement. (2) The owner who intends to be a primary party to the environmental upgrade agreement must advise, in writing, any existing mortgagee in respect of the rateable land to which the agreement will apply— (a) that the owner intends to enter into an environmental upgrade agreement; and (b) of the details of all environmental upgrade charges that are expected to be declared by the Council in respect of the rateable land under the environmental upgrade agreement. (3) The lending body that intends to be a primary party to the environmental upgrade agreement must confirm that the total value of the environmental upgrade charges as set out in the proposed agreement and to be declared after the agreement is entered into, when added to any taxes, rates, charges or s. 35 -- 25 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 23 mortgages owing on the rateable land to which the agreement will apply, does not exceed the capital improved value of the land prior to any works that would be undertaken as part of the agreement. 27O Environmental upgrade charge (1) After entering into an environmental upgrade agreement the Council must, in accordance with the conditions of that agreement, declare an environmental upgrade charge or two or more environmental upgrade charges (as the case requires) in respect of the rateable land that is the subject of the agreement. (2) The Council must levy an environmental upgrade charge by sending a notice to the person liable to pay it. (3) A notice under subsection (2) must specify— (a) the name and address of the person liable to pay the charge; and (b) a description of the rateable land in respect of which the charge is being levied; and (c) the environmental upgrade agreement under which the charge is levied; and (d) the amount for which the person specified in the notice is liable; and (e) the manner of payment; and (f) the penalties that may apply if the person fails to pay the charge. (4) An environmental upgrade charge is due and must be paid by the date specified in the notice requiring payment, which is a date not s. 35 -- 26 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 24 less than 28 days after the date of issue of a notice. (5) An environmental upgrade charge must be the agreed amount specified in the relevant environmental upgrade agreement. (6) Despite section 5, Part 8 of the Local Government Act 1989, other than sections 154, 156, 172, 175 to 178, 180 and 181 of that Act, does not apply to an environmental upgrade charge. (7) For the purposes of this Part, section 172(1) of the Local Government Act 1989 applies as if for paragraph (b) there were substituted— "(b) which have not been paid by the date specified in the repayment schedule to the environmental upgrade agreement.". (8) Despite anything to the contrary in this Act, the total amount of an environmental upgrade charge received by the Council from an owner or any occupier or both (as the case requires) must be used by the Council to make repayments to the lending body in accordance with the environmental upgrade agreement. (9) For the purposes of subsection (8), the total amount of an environmental upgrade charge received by the Council and to be paid to the lending body does not include— (a) the proportion of the charge that accounts for the administrative costs of the Council as specified in the environmental upgrade agreement; and (b) any penalty interest imposed by the Council on an owner or any occupier or both (as the case requires) as a s. 35 -- 27 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 25 consequence of nonpayment of the environmental upgrade charge. Note However, see section 27P(4)(b) which allows an environmental upgrade agreement to make provision for the Council to provide a proportion of any penalty interest received by the Council to the lending body. (10) If land for which an environmental upgrade charge has been levied ceases to be rateable land, the owner or any occupier or both (as the case requires) must, despite the land no longer being rateable, continue to pay the charge in accordance with the schedule of repayments specified in the environmental upgrade agreement. 27P Environmental upgrade agreement provisions (1) An environmental upgrade agreement must be in writing and outline the works to be undertaken on the rateable land of the owner. (2) An environmental upgrade agreement must contain provisions that provide for the lending body advancing funds to an owner on the following conditions— (a) that the owner use the funds advanced to conduct works on the rateable land for the purposes of the environmental upgrade agreement; (b) that the owner or any occupier or both the owner and any occupiers (as the case requires) pay the environmental upgrade charge or charges levied by the Council in respect of the rateable land to which the agreement applies; s. 35 -- 28 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 26 (c) that the Council uses the funds received under the environmental upgrade charge or charges to repay the lending body the principal amount initially advanced to the owner plus any agreed interest accrued since that advance. (3) An environmental upgrade agreement must specify— (a) the total amount being advanced by the lending body under the agreement; (b) the total amount of each environmental upgrade charge to be levied under the agreement; (c) the repayment schedule in respect of each environmental upgrade charge to be levied by the Council in accordance with the agreement; (d) the total amount of the environmental upgrade charges to be declared by the Council under section 27O in accordance with the agreement; (e) the total amount of any Council administration costs to be included as part of the environmental upgrade charge or charges. (4) An environmental upgrade agreement may— (a) provide that an amount, in addition to any other liabilities a party may have under the agreement, may be payable by a party if a party to the agreement fails to comply with the agreement; (b) provide that, in the event of nonpayment of an environmental upgrade charge by the owner or any occupiers, if the Council imposes s. 35 -- 29 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 27 penalty interest rates on the owner or any occupiers as a consequence of that nonpayment, the Council may provide a proportion of that penalty interest to the lending body. 27Q Responsibilities of the Council (1) The Council is not liable to repay the lending body the amount advanced to the owner until the owner or any occupiers or owner and any occupiers (as the case requires) have paid the Council or until the environmental upgrade charge has, or charges have, been recovered. (2) If an environmental upgrade agreement is terminated before all the funds that the lending party agreed to advance to the owner are advanced, the Council must— (a) adjust the environmental upgrade charge or charges to reflect the lower amount advanced to the owner; and (b) by written notice, advise any person liable to pay the environmental upgrade charge of the adjustment. (3) If, as a consequence of an adjustment being made to an environmental upgrade charge under subsection (2), an owner or any occupier has made payments under the environmental upgrade charge in excess of the adjusted amount, the Council must refund the excess amount paid to the owner or occupier or the owner and the occupier (as the case may be). 27R Quarterly statement The Chief Executive Officer must ensure that a statement prepared under section 138 of the Local Government Act 1989 includes a record of— s. 35 -- 30 of 41 -- Part 3—City of Melbourne Act 2001 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 28 (a) each environmental upgrade agreement entered into in the last quarter, and the rateable land to which the agreement relates; (b) each environmental upgrade charge approved in respect of the agreements referred to in paragraph (a), and the value of the charges; (c) the total number of environmental upgrade charges in operation in the last quarter; (d) the total value of all environmental upgrade charge payments that have fallen due and have not been paid; (e) the total value of all environmental upgrade charge payments that are yet to fall due. 27S Delegation to CEO (1) The Council may, by instrument of delegation, delegate to the Chief Executive Officer the power to— (a) enter into an environmental upgrade agreement on behalf of the Council; (b) declare and levy an environmental upgrade charge. (2) The Chief Executive Officer must not delegate the power delegated to the Chief Executive Officer under subsection (1) to any other person. __________________'. __________________ s. 35 -- 31 of 41 -- Part 4—Planning and Environment Act 1987 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 29 PART 4—PLANNING AND ENVIRONMENT ACT 1987 36 Exemption from giving notice For section 20(6) of the Planning and Environment Act 1987 substitute— "(6) The Minister cannot, under this section, exempt a planning authority or himself or herself from any requirement if the amendment is to include a DAC Activity Centre Area within the meaning of Part 4AA or to amend the boundaries of such an Area.". 37 Definitions in Part 4AA (1) In section 97MA(1) of the Planning and Environment Act 1987— (a) insert the following definition— "DAC Activity Centre Area means a contiguous area designated in a planning scheme from time to time as a DAC Activity Centre Area;"; (b) in the definition of DAC application, for "is within the operational area of that DAC" substitute "the DAC is required to consider and decide under section 97MD"; (c) the definition of operational area is repealed; (d) for the definition of Relevant Activity Area, substitute— "Relevant Activity Area means the land within a suburb set out in Column 1 of the following Table that falls within the municipal district of the corresponding s. 36 See: Act No. 45/1987. Reprint No. 9 as at 27 May 2010 and amending Act Nos 6/2010 and 23/2010. LawToday: www. legislation. vic.gov.au -- 32 of 41 -- Part 4—Planning and Environment Act 1987 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 30 municipal council set out in Column 2 of the Table— Column 1 Suburb Column 2 Municipal council Airport West Moonee Valley City Council Box Hill Whitehorse City Council Broadmeadows Hume City Council Camberwell Boroondara City Council Cheltenham Kingston City Council Coburg Moreland City Council Cranbourne Casey City Council Dandenong Greater Dandenong City Council Doncaster Manningham City Council Epping Whittlesea City Council Footscray Maribyrnong City Council Frankston Frankston City Council Geelong Greater Geelong City Council Glen Waverley Monash City Council Greensborough Banyule City Council Hawthorn East Boroondara City Council Highett Kingston City Council Malvern East Stonnington City Council Maribyrnong Maribyrnong City Council Moonee Ponds Moonee Valley City Council Narre Warren Casey City Council Prahran Stonnington City Council s. 37 -- 33 of 41 -- Part 4—Planning and Environment Act 1987 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 31 Column 1 Suburb Column 2 Municipal council Preston Darebin City Council Ringwood Maroondah City Council South Yarra Stonnington City Council Sunshine Brimbank City Council Sydenham Brimbank City Council Taylors Lakes Brimbank City Council Wantirna South Knox City Council Werribee Wyndham City Council Windsor Stonnington City Council ". (e) the definition of Relevant Activity Centre Zone is repealed. (2) For section 97MA(2) of the Planning and Environment Act 1987 substitute— "(2) Despite anything to the contrary in this Act— (a) not more than one DAC Activity Centre Area may be designated in a planning scheme in respect of the following combined Relevant Activity Areas— (i) Camberwell and Hawthorn East; (ii) Cheltenham and Highett; (iii) Prahran, South Yarra and Windsor; (iv) Sydenham and Taylors Lakes; and (b) not more than 2 DAC Activity Centre Areas may be designated in a planning scheme in respect of the Preston Relevant Activity Area; and s. 37 -- 34 of 41 -- Part 4—Planning and Environment Act 1987 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 32 (c) not more than one DAC Activity Centre Area may be designated in a planning scheme in respect of any other Relevant Activity Area.". 38 Governor in Council may establish development assessment committees (1) For section 97MB(2)(b) of the Planning and Environment Act 1987 substitute— "(b) the DAC Activity Centre Area or Areas for which the DAC is established and to which any such class of application applies.". (2) Section 97MB(3) of the Planning and Environment Act 1987 is repealed. (3) In section 97MB(5)(c) of the Planning and Environment Act 1987, for "area or areas" substitute "DAC Activity Centre Area or Areas". 39 Variation or revocation of order establishing DAC For section 97MC(1)(b)(ii) of the Planning and Environment Act 1987 substitute— "(ii) the DAC Activity Centre Area or Areas for which the DAC is established and to which any such class of application applies.". 40 Functions of a DAC (1) For section 97MD(1)(a)(ii) of the Planning and Environment Act 1987 substitute— "(ii) that relates to land that is within the DAC Activity Centre Area or Areas specified in that order and to which the application applies; and". (2) In section 97MD(3) of the Planning and Environment Act 1987, for "within the operational area of a DAC" substitute ", which the DAC is required under this section to consider and decide,". s. 38 -- 35 of 41 -- Part 4—Planning and Environment Act 1987 Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 33 41 Section 97ME substituted For section 97ME of the Planning and Environment Act 1987 substitute— "97ME Applications to be considered by a DAC A DAC must consider every DAC application.". 42 Members In section 97MK(3) of the Planning and Environment Act 1987— (a) in paragraph (a), after "Victoria" insert "established under the Municipal Association Act 1907"; (b) in paragraph (b), for "Government" substitute "Governance". 43 New section 219 inserted In Part 11, after section 218 of the Planning and Environment Act 1987 insert— "219 Transitional provisions—DAC Activity Centre Areas (1) Any land within an Activity Centre Boundary in respect of an Activity Centre Zone in a planning scheme as in force immediately before the commencement of section 37 of the Local Government and Planning Legislation Amendment Act 2010 is taken to be a DAC Activity Centre Area for the purposes of Part 4AA. (2) Section 20(6) as substituted by section 36 of the Local Government and Planning Legislation Amendment Act 2010 does not apply to an amendment to a planning scheme to include any land taken to be a DAC Activity Centre Area under subsection (1).". __________________ s. 41 -- 36 of 41 -- Part 5—Amendment of Other Acts Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 34 PART 5—AMENDMENT OF OTHER ACTS Division 1—Crown Land (Reserves) Act 1978 44 Definition Insert the following definition in section 3 of the Crown Land (Reserves) Act 1978— "Council has the same meaning as it has in the Local Government Act 1989;". 45 Consequential amendment In section 3A(2) of the Crown Land (Reserves) Act 1978, for "municipal council" (wherever occurring) substitute "Council". 46 Appointment of committees of management (1) In section 14(4)(b) of the Crown Land (Reserves) Act 1978, for "municipal council" substitute "Council". (2) For section 14(8) and (9) of the Crown Land (Reserves) Act 1978 substitute— "(8) If a Council is appointed as a committee of management of any land under this section, a Councillor of that Council does not have an indirect interest in a matter to which section 78B of the Local Government Act s. 44 See: Act No. 9212. Reprint No. 9 as at 15 January 2009 and amending Act Nos 64/2004, 6/2009, 40/2009, 68/2009, 82/2009, 90/2009, 6/2010 and 35/2010. LawToday: www. legislation. vic.gov.au -- 37 of 41 -- Part 5—Amendment of Other Acts Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 35 1989 applies if the indirect interest arises solely and directly as a consequence of the appointment of the Council as a committee of management. (8A) Subsection (8) does not affect a Councillor's obligations arising out of section 79 of the Local Government Act 1989 that apply to any conflicts of interest that do not arise solely and directly as a consequence of the appointment of the Council as a committee of management. (9) If a Councillor of a Council is a member of an unincorporated committee of management, that Councillor does not have an indirect interest in a matter to which section 78B of the Local Government Act 1989 applies if the indirect interest arises solely and directly as a consequence of the Councillor having an interest in a matter in his or her capacity as a member of the unincorporated committee of management. (9A) Subsection (9) does not affect a Councillor's obligations arising out of section 79 of the Local Government Act 1989 that apply to any conflicts of interest that do not arise solely and directly as a consequence of the Councillor being a member of the committee of management.". 47 Consequential amendments In sections 16 and 24 of the Crown Land (Reserves) Act 1978, for "municipal council" (wherever occurring) substitute "Council". s. 47 -- 38 of 41 -- Part 5—Amendment of Other Acts Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 36 Division 2—Amendment of Environment Protection Act 1970 48 Amendment of section 50K (1) Insert the following heading to section 50K of the Environment Protection Act 1970— "Conflict of interest of members of the governing body". (2) In section 50K of the Environment Protection Act 1970, for "sections 78, 79 and 80" substitute "sections 76AA, 77A, 77B, 78, 78A, 78B, 78C, 78D, 78E, 79 and 80". Division 3—Repeal of Local Government (Consequential Provisions) Act 1989 49 Repeal of Local Government (Consequential Provisions) Act 1989 The Local Government (Consequential Provisions) Act 1989 is repealed. __________________ s. 48 See: Act No. 8056. Reprint No. 17 as at 7 May 2009 and amending Act Nos 68/2009, 20/2010 and 29/2010. LawToday: www. legislation. vic.gov.au See: Act No. 12/1989. Reprint No. 1 as at 14 July 1997. LawToday: www. legislation. vic.gov.au -- 39 of 41 -- Part 6—Repeal of Amending Act Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 37 PART 6—REPEAL OF AMENDING ACT 50 Repeal of amending Act This Act is repealed on 30 June 2012. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 50 -- 40 of 41 -- Local Government and Planning Legislation Amendment Act 2010 No. 58 of 2010 38 ENDNOTES † Minister's second reading speech— Legislative Assembly: 28 July 2010 Legislative Council: 12 August 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Local Government Act 1989, the City of Melbourne Act 2001, the Planning and Environment Act 1987 and other Acts and for other purposes." Endnotes -- 41 of 41 --