News & Events

  • Re-wrapping Red Tape: Changes to the Treasury Act

    Re-wrapping Red Tape: Treasury Laws Amendment

    As we start down the slippery slope towards the end of the 2017-18 financial year, conveyancers, solicitors, buyers and developers alike need to come to terms with the likely impact of the Treasury Laws Amendment (2018 Measures No.1) Act 2018 (Treasury Act) on real property transactions.

    With the Treasury Act commencing on 1 April 2018, buyers (yes… buyers!) rather than the developer (or the supplier) must now withhold and pay directly to the Australian Taxation Office the GST payable on a taxable supply that is made by way of sale or long term lease of:

    1. new residential premises; or
    2. potential residential land that is included in a property subdivision plan and which does not contain any building that is in use for a commercial purpose.

    However, the withholding regime will not apply to new residential premises which have been created through substantial renovations.

    The amount to be withheld by buyers will be equal to:

    1. 1/11th of the purchase price identified in the contract for sale;
    2. where there is no purchase price, 1/11th of the GST exclusive market value; or
    3. where the margin scheme applies, 7% of the purchase price (or GST exclusive market value where there is no purchase price).

    The amount must be withheld and paid to the Australian Taxation Office on the day on which consideration is first provided. In most circumstances, this will be on the day of settlement.

    The Treasury Act applies to all contracts under which any consideration (other than the deposit) is first provided on or after 1 July 2018, though there is an exemption for those contracts entered into before 1 July 2018 and under which the consideration is first provided before 1 July 2020.

    So what are the practical implications of the Treasury Act? Well, for a developer, they will still need to account for the GST amount in its BAS and will be entitled to a credit for the GST amount once paid by the buyer to the ATO. They will also need to give buyers notice specifying whether the buyer is required to withhold payment from the supply, and if relevant, the amount to be withheld and paid to the ATO.

    It would be prudent for developers to consider a review of their existing developments and future sales to ensure both administrative processes and contract terms facilitate the requirements of the withholding regime.

    Whilst the intention of the Treasury Act is to discourage GST avoidance, we expect the changes will be somewhat detrimental to developers and likely to lead to increased transaction costs.

    For property developers who require further advice on these reforms, please contact a member of our Real Estate Development team.

    Written by Benjamin Grady, Associate, and Julian Pozza, Lawyer.

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  • Expert Witness Survives Challenge

    Expert Witness Survives Challenge

    The acceptance of expert evidence by a commissioner of the Land and Environment Court was unsuccessfully challenged in a recent appeal.

    The appeal arose from an application to modify a development consent for the construction of a dwelling house. The consent, which was granted in 2001, incorporated a design for a driveway to access the dwelling and the modification application involved a significant reconfiguration of the driveway.  The driveway was steep and engineering evidence was called by both sides.

    The council’s evidence was given by its development engineer.  He held formal academic qualifications in engineering surveying but not in engineering but had extensive experience, spanning almost 40 years in local government, in domestic driveway design.

    His evidence was challenged by the applicant on two grounds.  One was that he did not have appropriate qualifications to give expert engineering evidence to the court as he had no formal engineering qualifications.  The other was that, as an officer of the council, he had a conflict of interests and could not be regarded as an appropriate person to give expert evidence to the Court.

    Both grounds of challenge were rejected by the court in a decision handed down last week.

    On the first ground, Moore J held that the qualification for a person to give expert evidence is not that they have a university-based qualification but that they can demonstrate that from their specialised training, knowledge or experience, they have obtained the necessary degree of specialised knowledge or skill to be regarded able to speak authoritatively about it.  In this case the council witness clearly had significant relevant experience and an appropriate and relevant qualification to give expert evidence on the technical aspects of the proposed driveway design. His Honour commented (at [72]) that:

    Indeed, to hold that the absence of a university-based qualification would disentitle Mr Clare from being accepted as an expert for the purposes of assessing Mr Doyle’s application would be intellectual arrogance of the highest order. It would also be bad at law!

    The court also rejected the second ground of challenge, saying that neither the expert witness nor the council as his employer had any pecuniary interest or other direct or indirect interest in the outcome of the proceedings.  Moore J said that a conflict of interests could arise which could prevent a witness from meeting the obligations for independence required of an expert witness where they might be perceived as having a direct or indirect pecuniary interest arising out of their employer’s role in particular proceedings.  The exclusion of such a potential witness may not be unreasonable in such a case, depending on the particular circumstances.

    However, his Honour observed that such a situation does not arise in the case of a council employee when the council’s position in the proceedings is consistent with the position adopted by the council employee.  The Court noted that a contrary position arises where the position adopted by the council is inconsistent with the approach recommended by the council officer and observed that, to avoid such a conflict, it was customary for councils to engage external experts when that situation occurred.

    For more information about this case, or on expert witnesses, please contact Alan Bradbury.

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  • Competition Consumer Act: Business Breakfast Club April Summary

    Competition Consumer Act: Business Breakfast Club April Summary

    UPDATE: On 6 November 2017, changes to the Competition and Consumer Act 2010 (Cth) took effect.

    This month at Business Breakfast Club, we discussed changes to the Competition and Consumer Act 2010 (the Act) which change the notification regime and extend the type of prohibited conduct. The changes make it easier for small businesses to obtain legal protection from potential breaches of the competition laws which usually prohibit businesses from collectively bargaining with a customer or supplier. In particular, we focused on the illegal practices of “concerted practice”, “cartel conduct” and “collective bargaining”. BAL Legal Director, Mark Love shared some of his insights on the topic. Mark touched on:

    Why do you need legal protection?

    Competitors who engage in collective bargaining may be in breach of the Act. The most effective way for businesses to collectively bargain without risk of breaching the Act is to lodge a ‘notification’ with the Australian Competition and Consumer Commission (ACCC) which identifies the proposed bargaining group and the type of conduct they intend to engage in. The notification process has been available since 2007, but has historically been viewed by the business community as not providing a substantive practical benefit. This is because the notifications were interpreted narrowly by the ACCC so it was still possible to breach the Act. Now, notification can be given for a class of persons both in relation to the beneficiaries of the bargaining group and the targets (customers or suppliers). However, with the broadening of the notification regime comes a third basis for infringement: concerted practice.

    Collective bargaining

    Collective bargaining is an arrangement whereby two or more competitors come together to negotiate terms, conditions and prices with a supplier or a customer. Essentially, collective bargaining tends to benefit smaller businesses who do not have the volume (of sales or purchases) alone to give them bargaining power. Permission to collectively bargain can be obtained through the notification or authorisation procedures of the Act provided there is some “public interest” in allowing the conduct.

    Cartel conduct

    Cartel conduct encompasses agreements between competitors to fix prices, divide markets, rig bids, or restrict outputs thus restricting competition.  To prove “cartel conduct” the ACCC is not required to prove that there has been a lessening of competition as a result of the conduct, rather the ACCC must demonstrate that:

    1. the persons concerned are in “competition” (whether for customers or suppliers);
    2. there is a relevant “purpose” to the arrangement or understanding; and
    3. there is a relevant contract, agreement or understanding to that effect.

    The Court considered “cartel conduct” in ACCC v Australian Egg Corporation Limited [2017] FCAFC 152. In that case, the ACCC alleged that Australian Egg Corporation Limited (AECL) and two egg producing companies, Ironside Management Services Pty Ltd (T/A Twelve Oak Poultry) and Farm Pride Foods Limited attempted to induce egg producers who were members of AECL ‘to enter into an arrangement to cull hens or otherwise dispose of eggs, for the purpose of reducing the amount of eggs available for supply to consumers and businesses in Australia’.

    Virtually every aspect of the ACCC’s case against AECL was found by the presiding judge to be true and based on largely uncontested facts, specifically the conduct of the parties at an industry summit brought together urgently to address the very issue of the oversupply of eggs and the damage that was apt to do to egg producers and the Australian Egg industry. However, despite the findings of fact the Court found AECL was not in breach of the Act because the conduct was something “less than a binding contract or arrangement”.

    Concerted practice

    As a result of the AECL decision, the Act now includes a third basis of infringement which is a hybrid of the cartel and collective bargaining provisions. Concerted practice is a form of coordination between competing businesses by which, without them having entered a contract, arrangement or understanding, practical cooperation between them is substituted for the risks of competition. There must be the purpose or likely effect of substantially lessening competition which has been held to be “whether the effect of the arrangement was substantial in the sense of being meaningful or relevant to the competitive process”.

    Q&A Corner

    Q. What are the risks associated with lodging a notification to the ACCC?

    A. Lodging a notification to the ACCC requires businesses to disclose information regarding the proposed conduct in a sufficiently precise manner. The ACCC can then consult with interested parties and assess the notification. As part of the notification, it is important that you:

    • outline the areas of competition likely to be affected by the proposed conduct;
    • describe the likely public benefits from the proposed conduct; and
    • specify the likely public detriments (including any adverse effect on competition).

    Some businesses may be reluctant to disclose this information as it may prompt the ACCC to carefully scrutinise the conduct of the businesses engaged in exclusive dealing. Further, once notification is lodged with the ACCC, it is published on the ACCC’s public register. Businesses must determine whether the risks associated with notifying the ACCC of the proposed conduct (the publication of business information) outweighs the risks of not obtaining the ACCC’s “blessing” for the conduct. Remember, breaches of the cartel, collective bargaining (and now) concerted practice provisions can result in criminal prosecution.

    The Business Breakfast Club is held on the second Friday of each month, the next one is on 11 May. If you would like to attend, please contact us to be added to the invite list.

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  • Investigations of Staff Misconduct Complaints

    Essential Guide to Local Government Law: Investigating Staff Misconduct Complaints

    Investigations of staff misconduct complaints, including workplace bullying can be difficult. It is important to carry out your investigations in a reasonable manner: below is a guide on how to best investigate staff misconduct complaints, including workplace bullying.

    Key instruments

    1. Local Government (State) Award 2017 (‘Award’).
    2. Local Government Industry Guidelines on Workplace Investigations under section 36 of the Award (‘Guidelines’)
    3. Model Code of Conduct for Local Councils in NSW (‘the Code’)
    4. Procedures for the Administration of the Model Code of Conduct (‘the Procedures’)

    Key questions to ask when a complaint has been made

    How serious is the complaint?

    • If the complaint is minor, dated, or there are mitigating factors, then it may be best dealt with at a management level. There is discretion under both the Award (clause 36) and the Procedures (at 5.2) to handle a complaint this way.
    • What will be achieved by escalating (or not escalating) the complaint? At law, the only legitimate purpose to invoke civil disciplinary proceedings is to protect the Council (and public confidence in it). Invoking proceedings to simply ‘punish’ an employee is unnecessary and impermissible.

    What process do I need to follow?

    • Establish if the complaint is most accurately characterised as a performance issue, a conduct issue, both, or neither, and adopt the corresponding process. You may need to get more particulars to answer these questions (i.e. who, what, how, where, when etc). If you think the complaint, if substantiated, might amount to a breach of the Code, identify with precision what particular section(s) of the Code are involved.

    Remember that there may be multiple processes to follow, and ensure your process complies with all applicable processes. Key potentially applicable processes include:

    • the disciplinary process set out at cl 36 of the Award (and the Guidelines);
    • the Procedures for Administration of the Model Code of Conduct; and/or
    • the Public Interest Disclosure process.

    Key considerations once a decision has been made to Investigate:

      1. It is important to follow all applicable procedures. Make sure you know who has what role.
      2. Remember that the employee has a right to be represented in any Investigation.
      3. Most Investigations regarding staff can be dealt with ‘in-house’, but consider whether Council needs assistance of an external body to carry out the Investigation. This is particularly advisable in cases concerning serious or complex allegations, sensitive subject matter, where an actual or perceived conflict of interest exists, or where Council doesn’t have the resources to conduct the investigation expeditiously.
      4. Any sanctions or disciplinary responses for proven misconduct must be only those necessary to ‘protect’ the Council (and public confidence in it). Disproportionate sanctions are impermissibly punitive.

    Key things to remember in all investigations:

    Procedural Fairness

    Procedural fairness is owed to the respondent, not the complainant.

    In essence, the rules of procedural fairness require:

      1. the person who may be subject to an adverse finding is ‘heard’ in a manner appropriate to the circumstances;
      2. the decision maker is able to bring an impartial mind to the question before him or her (and is seen to be able to do so); and
      3. decisions are made on the basis of logically probative evidence.

    In particular, the employee concerned has a right:

      1. to receive clear notice of all allegations and how, precisely, they might offend the Code;
      2. to receive all relevant information before responding to the allegations;
      3. to be given a fair amount of time to consider the allegations and supporting materials before being required to respond; and
      4. for their response to be received and genuinely considered before an adverse decision is made.

    Suspension

    In certain circumstances it may be appropriate to suspend an employee while an investigation is being carried out. However, suspension as a disciplinary tool should be used sparingly and only when it is necessary for the integrity of the investigation and protection of the Council.

    Work Health and Safety

    It is important to carry out your investigations in a reasonable manner so as to reduce the risk of mental health injuries to those involved.

    Need more help?

    Our Employment and Workplace Lawyers provide effective solutions to help manage your workplace and employees, while minimising your exposure to risks and issues. Where claims are made by employees, we are experienced advocates in all workplace jurisdictions, including the Fair Work Commission and the Federal Courts.

    For further advice on investigations into staff misconduct complaints, please contact Gabrielle Sullivan, Director of Employment and Workplace Relations, or Alan Bradbury, Director of Planning, Environment and Local Government.

    Read more Essential Guides to Local Government Law.

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  • 4 BAL Directors ranked in the 2018 edition of Best Lawyers - Australia

    4 BAL Directors ranked in the 2018 edition of Best Lawyers - Australia

    Four BAL Directors have been recognised for their legal excellence in the 2018 edition of the Australian Financial Review’s Best Lawyers Australia list. Produced by a peer review company and published by the Australian Financial Review, the list is compiled following an extensive evaluation process. The list includes more than 3,300 lawyers from 330 law firms nationwide, up from more than 3000 last year.

    The directors have been successful in the following practice areas:

    • Alan Bradbury – Government Practice, Planning and Environment Law;
    • John Bradley – Leasing Law, Real Property Law;
    • Mark Love – Commercial Law, Insolvency and Reorganisation Law, and Corporate Law; and
    • John Wilson – Labour and Employment Law, Occupational Health and Safety Law.

    This is the ninth consecutive year the Alan Bradbury has been acknowledged for his expertise. Managing Legal Director John Wilson makes his sixth appearance in the list, while Mark Love and John Bradley were again recognised for their respective practices.

    John Wilson congratulated his fellow Legal Directors on their achievements.

    “A listing in Best Lawyers is a considerable honour, reflecting as it does the praise of fellow practitioners in each speciality,” he said. “For three of my colleagues and I to be included speaks highly to the calibre of our team at Bradley Allen Love.”

    Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honour, conferred on a lawyer by his or her peers. For more than three decades, Best Lawyers lists have earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere.

    The full list is available here.

    BAL directors - best lawyers 2018

    Above: Mark Love, John Wilson, John Bradley and Alan Bradbury, – listed in The Best Lawyers in Australia© 2018

    ABOUT BEST LAWYERS

    Best Lawyers is the oldest and most respected attorney ranking service in the world. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote from around the world, and Best Lawyers® received almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honour.

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  • Builders beware - owners given clarity on shoddy building work in off-the-plan apartments

    Builders beware: owners given clarity on shoddy building work in off-the-plan apartments

    A building dispute running for the better half of two decades between the owners of Units Plan 1917 and the developer, Koundouris Projects, appears to have finally come to an end on 16 February 2018 with the High Court refusing Koundouris’ application for leave to appeal against the decision of the ACT Court of Appeal in Koundouris v Owners – Units Plan No 1917 [2017] ACTCA 36.

    Originally heard in 2016, the matter concerns a claim by the owners of Units Plan 1917 against the builder, Mr Koundouris, in relation to the construction of the Lagani apartment complex and the various issues in the complex following its completion, including the existence and ongoing water leaking and damage in units and the cracking of masonry and facades. The matter heard was complex, particularly due to the various changes in legislation having taken place during the construction phase, and turned on the interpretation of the statutory warranties contained in the Building Act 1972 (ACT) (now repealed) and the Building Act 2004 (ACT). Though the primary judge held that Mr Koundouris had indeed breached these statutory warranties, it was the decision of the ACT Court of Appeal that provides greater certainty to unit owners, builders and developers alike as to the application of the statutory warranties in off-the-plan contracts for sale.

    The ACT Court of Appeal largely upheld the primary judge’s decision but made the following important distinctions:

    1. It is not necessary for a builder and developer to have a written contract in place for the statutory warranties to apply;
    1. The statutory warranties extend to the defined parts of the unit titled building, being load bearing walls, columns, footings, slabs and balcony’s;
    1. The statutory warranties operate both during construction and following completion;
    1. The source of an owners rights for breaches of the statutory warranties arise as the successor in title but can also arise for successive owners as the statutory warranties are implied in the contract for sale; and
    1. Unsuccessful repair works (where there is an inherent issue with the construction of the building) throughout the statutory warranty period may lead a builder to breach the statutory warranties repeatedly allowing a claim to be brought against the builder for an extended period of time.

    Though some might suggest that the decision of the ACT Court of Appeal may discourage builders from attempting to repair building defects for fear of inadvertently extending the limitation period under the statutory warranty, the decision makes clear that the intention of the statutory warranties are to protect the consumer from shoddy building work and that the provisions of the legislation should be interpreted accordingly.

    Written by Benjamin Grady and Alexander Paton. If you require further information or advice in regards to your rights and obligations concerning building defects, please contact us.

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  • Financial Exploitation through Powers of Attorney and the Remedies

    Financial Exploitation through Powers of Attorney and the Remedies

    Thankfully, more people are becoming aware and talking more openly about Elder Abuse and its prevalence among the Australian community. The most common type of elder abuse is the financial exploitation of a close elderly family member (followed by psychological and physical abuse).

    Unfortunately, much of the financial exploitation stems from misuse by an attorney appointed pursuant to a Power of Attorney document.

    This article presents a brief summary on how financial exploitation through a Power of Attorney can take place, and the remedies available against a “rogue” attorney.

    How does Financial Exploitation Take Place

    Putting in place a Power of Attorney has practical advantages – it is a relatively low cost, informal and private appointment by a donor allowing the appointment of a person or persons (the “attorney”) to make decisions on the donor’s behalf with regard to their financial and property matters.

    Unfortunately, it is the informal, private and unregulated nature of a Power of Attorney that makes it susceptible to misuse.

    A Financial Management Order by contrast requires a formal application to the relevant State or Territory Guardianship or Financial Management Board or Tribunal (in the ACT, this would be the ACT Civil and Administrative Tribunal or simply, “ACAT”). The Board or Tribunal is then responsible for ensuring a decision is arrived at having regard to all the evidence, including medical evidence, arguments and submissions by interested persons and that a decision is ultimately made in the best interests of the interested person.

    Perhaps one of the most notable cases of financial exploitation was highlighted in the case of Brennan v State of Western Australia[1]. Mr Kopec was a polish migrant living in Western Australia with very few relatives in Australia. He lived by himself on a farm and was suffering from deteriorating physical and mental health. Mr Kopec appointed Damien Brennan, a legal practitioner as his attorney pursuant to an Enduring Power of Attorney. Over the span of the next 8 years, Mr Brennan continued to misappropriate close to $900,000 of Mr Kopec’s estate including continuing to operate the Enduring Power of Attorney well after Mr Brennan had died.

    A more recent case involving the misappropriation of funds by an attorney is the case of Mezzapica v Mezzapica[2] which was handed down in November 2017. This case involved an elderly Italian mother who had appointed her two sons as her attorneys. After the mother’s death, one of the sons (Robert, the Plaintiff) questioned a number of transactions which were entered into by the other son (Renato, the Defendant) including a number of cheques which Renato had drawn from his mother’s Commonwealth Bank account in favour of himself.

    The Court held that the cheques were not actually drawn in the exercise of Renato’s power as his mother’s attorney. The Court did however find that Renato had misappropriated other funds (totalling over $62,000) from a trust account which held in his mother’s name for the benefit of her grandchildren. This misappropriation by Renato constituted a breach of trust by his mother such that the mother’s estate had to account for the loss.

    Fortunately in this case, it was held that the mother did not suffer a loss. At the date of this article it is not clear whether further action will be taken against Renato for his acts as his mother’s attorney.

    Available remedies

    The range of remedies available in circumstances of financial exploitation and misappropriation can be broadly classified into three categories:

    • statutory remedies;
    • common law remedies; and
    • criminal remedies

    A brief overview of each of these is discussed further below:

    Statutory remedies

    Victoria, Queensland, South Australia, the ACT and Tasmania have specifically legislated to impose substantial penalties or allow for compensation for the donor (or their estate) caused by the failure of an attorney to comply with their statutory duties in the exercise of their powers[3]

    The remaining States and Territory (Western Australia, Northern Territory and New South Wales) do not provide any legislative right to seek compensation or damages from an attorney where the donors assets have been misappropriated if there has been proof of financial exploitation. The only statutory remedy in Western Australia, Northern Territory and New South Wales is that an application can be made to the relevant State and Territory Court or Tribunal (or, the Court or Tribunal can make a decision on their own initiative) to revoke a Power of Attorney if they are satisfied it is in the best interests of the Donor.

    Common Law Remedies

    There are three fundamental equitable grounds upon which a Court can set aside a transaction involving financial exploitation by an attorney:

    • Breach of Fiduciary Duty – an attorney is a fiduciary and where the attorney obtains a profit as a result of a transaction that conflicts with the interests of the donor, the Court has the ability to set aside the transaction
    • Unconscionable conduct – the High Court’s decision in the case of Amadio[4] established the principles with respect to Unconscionability can be established where three elements have been satisfied:
    1. That one party has a “special advantage” (the stronger party);
    2. That the disability is sufficiently evident that the stronger party knew or ought to have known of the weaker party’s special disadvantage; and
    3. the stronger party took unfair advantage of the weaker party’s special disadvantage to obtain a benefit for him/herself.
    • Undue influence – where an attorney has procured a transaction by undue influence, again the transaction can be set aside.

    Criminal Remedies

    At the present time, there is no specific criminal offence in any Australian jurisdiction that deals with financial exploitation of an elderly person, through a Power of Attorney or otherwise. Financial abuse and exploitation can be prosecuted through a variety of property offensive including misappropriation of property, theft or fraud and in some cases, domestic violence or abuse. In the ACT, there is a separate offence for dishonestly obtaining a financial advantage by deception [5]

    In reality however, there has been a noted failure by police to investigate and subsequently prosecute for criminal offences in cases where there has been financial exploitation of an older person generally. There is also typically a strong desire by older persons to maintain family privacy and as a result, financial exploitation is often unreported.

    Written by Golnar Nekoee, Associate, Wills and Estate Planning. To create a power of attorney, or review your will and estate plan, please contact us.

    [1] Brennan v The State of Western Australia [2010] WASCA 19

    [2] Mezzapica v Mezzapica [2017] NSWSC 1553

    [3] Powers of Attorney Act 2014 (VIC) s77, Powers of Attorney Act 2006 (ACT) s 50 – time limits apply from when the application must be made to compensate the principal or the estate, Powers of Attorney Act 1998 (Qld) s106-107, Powers of Attorney and Agency Act 1984 (SA) s 7, Powers of Attorney Act 2000(TAS) s32

    [4] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14

    [5]Part 3.3 Division 3.3.2 of the Criminal Code 2002 (ACT)

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  • Has the clock really stopped time?

    Essential Guide to Local Government Law: Stopping the Clock

    Class 1 appeals dominate the Land and Environment Court’s caseload.[1] Many of these are commenced against the ‘deemed refusal’ of a development application.  This occurs when the consent authority fails to determine the application within the assessment period prescribed by the Environmental Planning and Assessment Act 1979 (the Act) and the Environmental Planning and Assessment Regulation 2000 (the Regulation).   It is therefore important that applicants and consent authorities understand the correct approach to calculating when a ‘deemed refusal’ will occur, and also know how to extend the development assessment period where necessary. This essential guide will look at when the development assessment clock stops and what events will restart it.

    When does the assessment period start and end?

    Under the Regulation consent authorities have 40, 60 or 90 days to determine a development application, depending on what type of application it is. This is known as the assessment period. ‘Days’ in this context means all days – not just business days. If the consent authority does not determine the application within the assessment period then the application is deemed to have been refused.[2] The applicant then has the right to seek review of that decision in the NSW Land and Environment Court within six months of that date.[3]

    When calculating the length of the assessment period, the day on which the development application is lodged, as well as the following day, are not included.[4] This is to allow the consent authority time to register and check the application for compliance with the requirements of Schedule 1 of the Regulation before the merits assessment is commenced.

    If the application does not identify all relevant integrated development approvals or concurrence requirements then the consent authority might take longer than the two days to check the application. To allow for this, for integrated development or development requiring concurrence, the assessment period starts at the earlier of 14 days after the development application is lodged or the date the application is referred to the relevant concurrence authority or approvals body.[5]

    What stops the clock?

    The assessment period ‘clock’ can be stopped by:

    1. The consent authority, concurrence authority or approvals body issuing a request for additional information in accordance with the Act and Regulation; or
    2. The applicant ‘modifying’ the development application within the assessment period, where the amended application is accepted by the consent authority.

    How these two processes operate to stop the assessment clock is set out below.

    Additional information requests

    It is common during the development assessment process for a decision maker to require additional information in order to properly consider an application. The assessment ‘clock’ can be ‘stopped’ if:

    1. the consent authority makes a request for additional information under clause 54 of the Regulation within 25 days from the start of the assessment period;[6] or
    2. a concurrence authority or approvals body makes a request for additional information, within 25 days of the date the authority received the development application from the consent authority[7].

    In practice, the relevant period in which a request for further information can be made that will have the effect of stopping the assessment clock is 27 days (because of the additional two days allowed under clause 106(c) of the Regulation) unless the application is for integrated development or development which requires concurrence or an approval from another body[8]. If the consent authority asks for additional information in this period then the assessment period clock stops on the day of the request. If a concurrence or approvals body makes the request, then the assessment clock stops on the day that the consent authority receives the request from the concurrence or approvals body. If more than one request for additional information is made while the assessment clock is stopped then the clock stays stopped until all requests have been addressed.

    The assessment clock can also be stopped if, in relation to integrated development which requires consent under the National Parks and Wildlife Act 1974, the Chief Executive of the Office of Environment and Heritage is of the opinion that it necessary to consult with an Aboriginal person, land council or other organisation before a decision concerning the general terms of approval can be made and the consultation commences within 25 days after the date on which the development application is forwarded to the Secretary of the Office of Environment and Heritage[9]  In this case  the clock is paused for the consultation period, provided this is not longer than 46 days from the date on which the development application was lodged with the consent authority.

    To be effective, the request for additional information must be made in writing [10], must inform the applicant that the clock has stopped[11] and must be made within the time allowed in the Regulation. It may also specify a reasonable period within which the information must be provided.[12]

    An authority can ask for additional information outside the period described above; however, this will not have the effect of ‘stopping the clock’ and will not extend the assessment period or delay the deemed refusal date.

    Amending a development application

    Amending a development application under clause 55 of the Regulation can also have the effect of resetting the ‘clock’ for the assessment period. Whilst this in itself is no longer controversial, it can be difficult to determine whether and when a particular development application has been amended.

    This issue was considered in two recent Land and Environment Court decisions: Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129 and Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6.  In both cases the applicant argued that an exchange of correspondence between the applicant and council constituted an amendment of the development application such as to restart the assessment period and push back the deemed refusal date to a date within 6 months of the commencement of the appeal. In each case the Court found that the ‘dribs and drabs’ approach to making changes to the application was insufficient to constitute an amendment to the development application for the purpose of clause 55, and did not restart the clock for assessing the application. In Australian Consulting Architects the Court clarified that, for this to occur, it would be necessary for the applicant to put a settled, composite proposal to the consent authority and for this to be accepted by the authority for assessment and determination.

    When does the ‘clock’ restart?

    The assessment period clock restarts when the applicant:[13]

    1. gives the information requested to the consent authority, or
    2. notifies the consent authority (in writing) that the information will not be provided; or
    3. does not give the information in the reasonable period specified in the notice, or any further period of time which is allowed by the authority.

    If the request for additional information came from a concurrence authority or referral body, then the assessment clock restarts 2 days after the consent authority refers the requested information to that entity (or notifies it that the information will not be provided).

    When identifying when the assessment periods ends, it is also important to remember that s 36 of the Interpretation Act 1987 prevents any assessment period from ending on a Saturday, Sunday, or public holiday. In these cases the next working day is taken to be the last day of the assessment period.

    It may be difficult to work out whether the clocks have restarted where:

    1. the applicant has provided some, but not all of the additional information required, or the information provided is inadequate; or
    2. the consent authority informally extends the time period in which the information is required to be provided.

    When the additional information is inadequate

    If the information provided in response to a request for additional information is inadequate, or if further additional information is required, the consent authority can stop the assessment ‘clock’ again and request further information.  If the new request is made within the relevant 27 day period then this subsequent request can also ‘stop the clock’. In calculating the 27 day period in which any subsequent request for additional information may be made, any days for which the assessment clock has already been stopped are not counted.

    When the period for the provision of information is deemed to have been extended

    As noted above, if an applicant does not provide the information within the time specified in the request for additional information/the stop the clock notice, then the clock will generally restart after that date has passed. However, the time for the provision of the additional information can be deemed to have been extended by the authority in certain circumstances.

    This situation arose in Corbett Constructions P/L v Wollondilly Shire Council [2017] NSWLEC 135. In that case the Council had asked the applicant to provide a substantial amount of additional information within 28 days in relation to a development application for a large medium-density residential development.  After the deadline had passed an exchange of emails took place between the applicant and the Council in which the applicant indicated that the additional information would be provided “in the coming weeks” and the Council acknowledged and appeared to accept the delay. The Land and Environment Court found that the Council’s actions effectively amounted to an implied extension of time for the provision of the additional information, thus delaying the restarting of the assessment clock and the date on which the 6 month appeal period started.   To avoid this uncertainty, any extensions of time for the provision of the additional information should be given formally in writing by the Council and expressly state that the stop the clock provisions remain in effect.

    Conclusion

    It is important for a development applicant and consent authority to know the date when an application must be determined or will otherwise be deemed to be refused. To be able to do this it is necessary to consider whether, when and for how long the assessment clock was ‘stopped’ in accordance with the principles set out above.

    For further information about, or assistance with, a council land acquisition, please contact Alice MenyhartAlan Bradbury or Andrew Brickhill on (02) 6274 0999.

    The content contained in this guide is, of course, general commentary only.  It is not legal advice.  Readers should contact us and receive our specific advice on the particular situation that concerns them.

    References:

    [1] Land and Environment Court ‘Class 1: Environmental Planning and Protection Appeals – Fast Facts’ at  http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_1/class_1.aspx accessed at 9 March 2018

    [2] Section 8.11 of the Act

    [3] Section 8.10 of the Act.

    [4] Clause 107 of the Regulation

    [5] Clause 108 of the Regulation

    [6] Clause 109 of the Regulation

    [7] Clause 110 of the Regulation

    [8] For those applications, the assessment period starts at the earlier of 14 days after the development application is lodged or the date the application is referred to the relevant concurrence authority or approvals body: clause 108 of the Regulation

    [9] Clause 111 of the Regulation

    [10] Clause 54(2)(a) of the Regulation

    [11] Clause 112 of the Regulation

    [12] Clause 54(2)(b) of the Regulation

    [13] Clauses 54 and 109 of the Regulation

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  • wellbeing at work - hr breakfst club march summary

    Wellbeing at work: HR Breakfast Club March Summary

    DEVELOPING A WELLNESS PROGRAM BUSINESS CASE

    This month, guest speaker, Lauren Sayers – Deputy HR Manager at the ANU spoke about the importance of developing a wellbeing program for the workplace, and some tips on how to implement one successfully.

    Lauren is an ACT Australian HR Institute (AHRI) Council member & forum convenor and has 15+ years of management and HR experience across Hospitality, Telecommunications and Tertiary Education sectors. Lauren spoke about:

    What does a wellbeing program include?

    Employee health and wellness programs can include activities that promote good employee health, identify health-related risks in the employee population, and
    look to support any potential health-related problems present in the employee population.

    Why should we invest in wellbeing program?

    Employers should work to create a healthy workplace for a few broad strategic reasons:

    • To control the financial costs associated with an unhealthy workplace
    • and to gain the benefits of;
    • A healthy workforce;
    • To build the organisation’s employer of choice profile; and
    • Possible legal implications – e.g. WHS/workers compensation etc.

    A further example of reasons to invest in employee health and wellbeing and the relationship between employee healthand engagement.

    Example interventions and wellbeing program activities:

    The following examples can be used to build a workplace wellbeing program.

    • Healthy @ work- ergonomic assessments
    • Body and Mind & work
    • Winter wise- flu shots
    • Financial wellness – financial advice
    • Relaxation – complementary therapies
    • Physical Health – health assessments
    • Mental Health – R U OK Day?
    • Rest – sleep foundation
    • Summer Safe – Cancer Council
    • Stretch zone – promote workplace stretching and time away from workstation
    • Rest zone – sun lounger/sleep pod
    • Mindfulness zone- e.g. reading, colouring in, Sudoku

    You can download a copy of the slides from the presentation here.

    The HR Breakfast Club runs on the third Friday of every month at BAL Lawyers. If you would like to be added to the invite list, please contact us. The next HR Breakfast club will be held of 20 April 2018 – for more details, please click here.

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  • Privacy Act and data breaches: Business Breakfast Club March Summary

    Data Breaches and Privacy Act Changes: Business Breakfast Club March Summary

    UPDATE: On 22 February 2018 amendments to the Privacy Act 1988 (Cth) took effect to introduce a mandatory notification procedure for eligible data breaches.

    This month at Business Breakfast Club, we discussed the changes to the Privacy Act which introduced a mandatory notification procedure for eligible data breaches. BAL Director, Katie Innes shared some of her insights on the new responsibilities surrounding information and Privacy law. Katie touched on:

    What is an eligible data breach:

    An eligible data breach is either:

    • unauthorised access or disclosure of information that a reasonable person would conclude is likely to result in serious harm to any individuals to whom the information relates; or
    • information that is lost in circumstances where unauthorised access or disclosure of information is likely to occur and it can be reasonably concluded that such an outcome would result in serious harm to any of the individuals to whom the information relates.

    How and when is notification given?

    Notification relating to an eligible data breach is a written statement to the individuals affected by the breach and the Office of the Australian Information Commissioner and must include:

    • a description of what occurred;
    • the kinds of information concerned; and
    • the recommended next steps that individuals affected should take in response to the data breach.

    In certain circumstances, the Commissioner may declare that notification and a written statement about the eligible data breach is not necessary. The Commissioner may make this determination having considered factors such as the public interest, advice given to the Commissioner by an enforcement body or any other matters the Commissioner considers relevant.

    When will it not be an eligible data breach?

    1. You “take action” in relation to the access or disclosure before any serious harm and, as a result of the action, a reasonable person would conclude the access or disclosure will not be likely to result in any serious harm; or
    2. You “take action” in relation to any loss of information before any unauthorised access or disclosure and, as a result of the action, there is no unauthorised access or disclosure; or
    3. You “take action” in relation to any loss of information after unauthorised access or disclosure but before any serious harm and, as a result of the action, a reasonable person would conclude the access or disclosure will not be likely to result in any serious harm.

    If you follow one of the above steps, then you may not be required to notify the individual affected by the data breach.

    Q&A Corner

    Q. What if the personal information is held by more than one entity?

    A. Where the breach has occurred by one or more other entities, only one entity is required to undertake the process of investigation and notification. Essentially, compliance by one is compliance by all. You will need to determine how to allocate responsibility for compliance, and establish who has the most direct relationship with the individuals at risk to take the lead in investigation.

    Q. Can mailing lists be used for purposes other than what they were initially gathered for?

    A. In certain circumstances, yes. Organisations that hold personal information about an individual can only use or disclose the information for the purpose or purposes for which it was collected (known as the ‘primary purpose’ of collection). However you can use the information for a ‘secondary purpose’ if:

    (a)     the individual has consented; or

    (b)     the individual would reasonably expect you to use the information for the secondary purpose and the secondary purpose is:

    (i)  directly related to the primary purpose (if it is sensitive information); or

    (ii)  related to the primary purpose (if it is any other personal information).

    (c)     the use or disclosure is required by law or a Court; or

    (d)     a general permitted situation exists.

    In respect of mailing lists, individuals have the right to update their preferences, by asking the organisation to correct their information or “opt out” of the mailing list entirely.

    Q. Do the changes to the Privacy Act affect requests for files for workers compensation, when the injured employee’s lawyer requests personal and workers compensation files?

    A. No. The recent changes to the Privacy Act focus on the obligation to notify the OAIC or the individuals affected if there is an “eligible data breach”. Individuals remain entitled to access their own personal information through Australian Privacy Principle 12 (and could exercise that right through a lawyer).

    The recent changes also do not affect any disclosure obligations an organisation may have as part of workplace investigations. An organisation’s rights to disclose personal information about an affected employee will be governed by its existing privacy policy, WHS legislation and whether or not the organisation has obtained the individual’s consent to release their personal information to third party investigators or insurers as part of their terms of employment, or in managing any workplace claim.

    If the organisation disclosed information to a third party (without consent or without the legislative obligation to) then it could be considered a data breach and, depending on the potential risk to the individual affected, may be an eligible data breach.

    The Business Breakfast Club is held on the second Friday of each month, the next one is on 13 April. If you would like to attend, please contact us to be added to the invite list.

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