August 2007 Issue 90
Local Government Advisory Briefly
In this issue:
Is a Permit a Retail Shop Lease?
Section 222 of the Local Government Act 1999 (SA) (“LGA”) provides that a person must not use a public road for a business purpose unless authorised to do so by a permit. Section 5 defines “business purpose” broadly, as including not only those uses we might traditionally consider as associated with business, such as selling goods, but also the use of land other than with the intention to make a profit.
The LGA does not define “permit” or require a specific form to be used. It simply provides for the issue of permits by councils for certain activities or circumstances. For example, setting up chairs and tables on the footpath outside a café constitutes a business purpose for which a permit is required.
The Retail and Commercial Leases Act 1995 (SA) (“RCLA”) applies to all retail shop leases. Therefore, the question is, is a permit a retail shop lease for the purposes of the RCLA?
Pursuant to the RCLA a “retail shop lease” is defined to mean “an agreement under which a person grants or agrees to grant to another person for value a right to occupy a retail shop for carrying on a business:
- whether or not the right is a right of exclusive occupation; and
- whether the agreement is express or implied; and
- whether the agreement is oral or in writing, or partly oral and partly in writing.”
A retail shop is defined to mean:
- business premises:
- at which goods are sold to the public by retail; or
- at which services are provided to the public, or to which the public is invited to negotiate for the supply of services; or
- business premises classified by regulation as premises to which this Act applies, but does not include business premises of a class excluded by regulation from the ambit of this definition.
Subject to the general exclusions under the RCLA not applying, we are of the view that a permit will amount to a retail shop lease as defined by the RCLA when the permit granted for the business purpose can be seen to ‘create’ premises at which goods or services can be purchased.
That being the case, the grant of permits may need to be in compliance with the provisions of the RCLA and importantly, the application of Section 20B of the RCLA, which provides that retail shop leases must be for a minimum of five years. However, it must be noted that the LGA prohibits a term in excess of five years for a Section 222 permit.
It is our view that as the maximum period under the LGA and the minimum period under the RCLA coincide, there is no need for an exclusionary clause under the RCLA to be inserted into a permit, unless the permit is for more than six months but less than five years. In this case, an exclusionary clause and a solicitor’s certificate would be required.
Other provisions of the RCLA to keep in mind include the requirement to serve a Disclosure Statement.
As with any retail shop lease, the determination of whether the RCLA will apply to a permit will involve consideration of the nature of the premises and the activities that will be carried on there.
If you think your permit may fall under the RCLA, or have any queries in relation to this area generally, please contact Mabel Tam on (08) 8210 1220 or mtam@normans.com.au or Yari McCall on (08) 8210 1265 or ymcall@normans.com.au.
A Plan for Stormwater in South Australia Commences
The South Australian Government promised in 2005 to ensure adequate funding and administration would be made available to ensure effective stormwater infrastructure management. The Local Government (Stormwater Management) Amendment Act 2007 (SA), (“the Amendment Act”) which was prompted after the floods of 2005 that resulted in substantial damage to a number of South Australian council areas, commenced operation on 1 July 2007. The Amendment Act is the culmination of extensive public consultation and debate and inserts Schedule 1A into the Local Government Act 1999 (SA). It establishes a statutory authority, the Stormwater Management Authority (“the Authority”), to give effect to the Stormwater Management Agreement entered into by the Government of South Australia and the Local Government Association on 14 March 2006. The Authority has been given power to apply funding out of the Stormwater Management Fund, which is also established by the Amendment Act for various purposes.
The board of the Authority will consist of 7 members which will include representation from both State and Local Government. One significant function of the Authority is to issue guidelines for the preparation of Stormwater Management Plans (“SMP”) by councils. The Authority has also been given coercive powers to order councils to establish and comply with a SMP. Councils have also been granted powers to take action to give effect to an approved SMP in relation to both public and private land. The Amendment Act now provides clarity in relation to responsibilities for stormwater infrastructure which has been a source of confusion for some time.
The Local Government Association secure site will also shortly be updated to provide for the various powers and functions of councils in the instrument of delegation under the Local Government Act 1999 (SA).
For further information about issues covered in this article, please contact Felice D'Agostino on 8210 1202 or fdagostino@normans.com.au.
Section 188 Fees and Charges and the place of Expiation Fees
Pursuant to Section 188 of the Local Government Act 1999 (SA) (“the Act”), a council may impose fees and charges. The fees and charges which a council may impose under this section are limited to the specific items detailed in Section 188(1). Section 188(6) provides that a list of the fees and charges imposed by a council under Section 188 must be maintained and made available for public inspection. Only fees and charges that relate to the items specified in Section 188(11) should be included in a council’s list of fees and charges imposed pursuant to Section 188 of the Act.
It appears that councils may be including expiation fees in their list of fees and charges under Section 188(6). Expiation fees are not a prescribed fee or charge under Section 188(1) of the Act and should not be included in this list. An expiation fee for an offence is generally set by the Act which contains the offence to which the expiation fee relates. Whilst a council may in some instances set expiation fees, for example for breach of a council by-law, any expiation fees set by a council are not fees and charges set or imposed pursuant to Section 188 of the Act. To avoid any confusion as to the power under which an expiation fee has been set, we recommend that all councils review their lists of fees and charges imposed under Section 188 of the Act.
For further information about issues covered in this article please contact Felice D'Agostino on 8210 1202
or fdagostino@normans.com.au.
Repealed Provisions of the Local Government Act 1934
A number of provisions of the Local Government Act 1934 (SA) (“the 1934 Act”) were repealed recently as a result of a proclamation in the Government Gazette on 26 July 2007. For your reference, the provisions of the 1934 Act which are now no longer operative are – Sections 720, 735, 743, 747, 748, 792, 793 and 794. Many of these provisions were evidentiary provisions concerning presumptions and facilitation of proof. Other provisions extended a penalty imposed in the case of a person who commits an offence to any person who causes, orders or direct the offence or aids, abets, counsels or procures the commission of the offence The provision in the 1934 Act which gave the Governor power to remit whole or part of a fine or penalty has also been repealed.
For further information about issues covered in this article, please contact Felice D'Agostino on 8210 1202 or fdagostino@normans.com.au.
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