Local Government Elections: Caretaker Period and the Planning Act 2016

Local Government

minutes reading time

DATE PUBLISHED: March 19, 2020

LOCAL GOVERNMENT CARETAKER PERIOD.

The caretaker period is currently in effect for all local governments in Queensland and it can affect decision making.

Queensland’s local government elections will be held on Saturday, 28 March 2020. The caretaker period for Councils started on Saturday, 22 February 2020. The caretaker period for a Council ends at the conclusion of the election.

Now that Councils are in the caretaker period, it is important that Councillors, Council officers, proponents and their consultants understand what Councils can and cannot do in this period with respect to decisions under the Planning Act 2016 (Qld) (Planning Act).

The Local Government Act 2009 (Qld) (LG Act) sets out the caretaker period arrangements for Councils. These arrangements apply despite any delegations made prior to the caretaker period, and despite the fact that relevant applications or negotiations may have commenced prior to the caretaker period starting.


PROHIBITION ON MAJOR POLICY DECISIONS.

The LG Act provides that during the caretaker period, Councils must not make a major policy decision (without the approval of the Minister). Relevantly for the Planning Act, the LG Act defines ‘major policy decision’ to mean a decision[1]:

(a)  about entering into a contract (which could include an Infrastructure Agreement under the Planning Act) the total value of which is more than the greater of the following:

(i) $200k;

(ii) 1% of Council’s net rate and utility charges as stated in Council’s audited financial statements in Council’s most recent adopted Annual Report;

(b)  to make, amend or repeal a local planning instrument; 

(c)  about a variation request (i.e. the part of a development application for a preliminary approval that seeks to vary the effect of a local planning instrument in effect for premises) proposing to:

(i) vary the category of development or category of assessment of development (i.e. level of assessment);

(ii) vary the assessment benchmarks or criteria for accepted development that would apply to development; or

(iii) facilitate development that would result in greater demand on infrastructure than the demand anticipated in Council’s Local Government Infrastructure Plan; or

(d) about a change application (other than for a minor change) relating to the matters described in sub-paragraph (c)(i) to (iii) above for a variation approval.

It’s no surprise that Councils can’t make, amend or repeal a local government planning instrument during the caretaker period. But it is a little surprising that there is a blanket prohibition on decisions (approval or refusal) about variation requests including matters described in sub-paragraph (c)(i) to (iii) above, given it’s possible that such variation requests could be for relatively minor matters. This is especially so given Councils are still allowed to decide minor change applications about such matters in variation approvals.


CONSEQUENCES OF MAKING A MAJOR POLICY DECISION.

A major policy decision made by a Council during the caretaker period (without the Minister’s approval) is invalid.

A contract (that is the subject of a major policy decision that is invalid) entered into by a Council is void.

A person who acts in good faith in relation to a major policy decision of a Council, or in relation to a contract that is the subject of a major policy decision, but suffers loss or damage because of any invalidity of Council’s decision or because the contract is void has a right to be compensated by Council for the loss or damage.


WHAT COUNCILS CAN DO.

So, what can Councils do during the caretaker period in the context of decisions under the Planning Act?

The easy part of the answer is that decisions about development applications, change applications and extension applications (that don’t relate to a variation request or variation approval) can be made in a ‘business as usual’ manner.

For everything else, it’s best to get legal advice. We don’t say that lightly, the fact is many decisions could very much be in a ‘grey area’.

For example, can a Council enter into an infrastructure agreement which relates to infrastructure charges or infrastructure works with a value greater than the value described in paragraph (a) above?

What about decisions in an appeal, or an extension application, relating to the type of variation request or variation approval discussed above?


CONCLUSION.

Not complying with the caretaker period arrangements under the LG Act could result in significant financial and reputational consequences for Councils, so it’s important that Councils take a careful and considered approach to decision making during the caretaker period.

It is also important that people dealing with Councils understand the restrictions placed on Council decision making during the caretaker period, so to avoid or plan for impacts on business.

For further information, please contact Ciaran Houston, Principal on 3231 0410, or Matthew Soden-Taylor, Special Counsel on 3231 0412.


 

[1] The list is not exhaustive. See Schedule 4 of the LG Act for the full definition of ‘major policy decision’.

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