Issue 74 Nov 2003
LOCAL GOVERNMENT BRIEFLY
In this issue:
FOI Rights of Access to “in camera” Documents
Freedom of Information applications are becoming increasingly
common occurrence at Councils, and this trend is likely to increase.
In considering an FOI application which identifies some Council
documents or meeting Minutes which have been conducted and
maintained “in camera”, the accredited FOI Officer
will need to assess them under the exemption criteria of the
FOI Act. A resolution under Section 91(7) does not constitute
an automatic exemption from disclosure under the FOI Act. That
is not to say that documents are not exempt from disclosure
under the FOI Act but rather they need to be considered and
measured against the prescribed exemption criteria of that
Act, not the Local Government Act.
Whilst on the issue of confidentiality, Councils’ annual
reports for the financial year 2002/2003 are due shortly. This
year there is the additional requirement for Councils to include
material on the use of Sections 90(2) and 91(7) of the Local
Government Act and applications made under the FOI Act.
For further information about issues covered
in this article, please contact Sarah Hills (Accredited FOI Officer)
on + 61 8
8210 1240
or email shills@normans.com.au
Community land – Yet Again!
By way of reminder the opportunity to exclude the classification
of land as community land as provided for in section 193 of the
Local Government Act 1999 expired on 31 December 2002. Now other
than resolving to exclude the classification before the land
is acquired by the Council the only way in which to remove the
classification is to follow the revocation procedures set out
in Section 194 of the Act .
The Act sets out a process to be followed to revoke the classification
of land as community land. It is critical that the process is
strictly followed.
First, the Council must resolve to commence the administrative
process for the revocation including the preparation of a report
addressing the matters referred to in section 194(2) of the Act.
Secondly, the Council must follow the relevant steps in its
public consultation policy. It is most important to note that
before a Council revokes classification of land as community
land it must submit the proposal with the report on all submissions
made pursuant to the public consultation policy to the Minister.
Only once the Minister has given his approval may a Council then
propose, and if thought fit, pass a resolution revoking the classification
of land as community land. It is not possible for a Council to
include in its resolution to commence the process, a statement
that the land will automatically be revoked should the Minister
approve the proposal. The revocation resolution is a separate
resolution and may only be passed after Ministerial approval
has been received.
Likewise, when land was excluded pursuant to the procedure under
Section 193 of the Local Government Act 1999 it was not possible
for the Council to resolve to exclude land prior to the completion
of the public consultation. The resolution passed by the Council
to commence the process could not include a provision to the
effect that should no submissions be received as part of the
public consultation process, that the land would automatically
be excluded.
For further information about issues covered
in this article, please contact Peter Fisher on + 61 8 8210 1208
or email pfisher@normans.com.au
EPA Serves Council with Complaint and
Summons
The EPA has instituted proceedings to prosecute a Council for
an alleged breach of its EPA license condition. We understand
that several other Councils have been investigated recently for
alleged breaches and observe that the previous “unspoken
immunity” no longer applies! In addition, the EPA has commenced
an audit of all potentially polluting activities and land uses
lining the banks of the River Torrens. This will include any
relevant Council activities.
If you are aware that Council activities or activities being
undertaken on Council land are being investigated or audited
we recommend that you familiarise yourself and staff with your
rights and responsibilities. Authorised officers under the Environment
Protection Act have wide powers. However, it is important that
you know what legal protection is available. As part of our monthly
seminar series, Paul Leadbeter will present a seminar on this
topic on 26 November 2003. Watch this space for details or contact
Paul Leadbeter on 8210 1297.
For further information about issues covered
in this article, please contact Paul Leadbeter on + 61 8 8210
1297 or email pleadbeter@normans.com.au
Changes to the Native Vegetation Act
As of August 25 2003 the Native Vegetation laws in the State
have been amended. In particular, the provisions of the Native
Vegetation (Miscellaneous) Amendment Act 2002 are operational
and new Regulations (The Native Vegetation Regulations 2003)
have commenced.
You should be aware that:
- The Act now applies to significant native vegetation
in metropolitan Adelaide;
- Clearance approved by the Council will be conditional on an ‘environmental
gain’;
- The applicant for clearance will need to finance the preparation of an expert report relating to the clearance;
- There is an opportunity for public comment on applications (but interestingly
no public consultation requirement!);
- There is an appeal right against decision of the Council – but
not in relation to the merits of the application, only the
decision making process;
- The new Regulations include an overhaul of the “exemptions” under
the Act, and many of the previous exemptions do not apply,
or at least not in the same way.
For further information about issues covered
in this article, please contact Martha Savva on + 61 8 8210 1230
or email msavva@normans.com.au
The Natural Resources Management Bill
2003
This Bill has been through a stormy consultation phase! We understand
that significant work is being undertaken in relation to the
Bill following significant public comment, in particular from
local government stakeholders. Watch this space for developments!
For further information about issues covered
in this article, please contact Martha Savva on + 61 8 8210 1230
or email msavva@normans.com.au
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Norman Waterhouse
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