News & Events

  • Doyles Guide recognises BAL Lawyers Employment Law and Investigations group in 2021

    BAL Lawyers is delighted to announce that our Employment Law & Investigations group has been recognised as among the best employment law firms in Canberra.

    The latest Doyles rankings, released in February 2021, feature the team and its members in four categories, representing their work for both employee and employer-focused practice areas.

    Both practice areas have been recognised, in addition to individuals’ recognition:

    • BAL Lawyers is the Leading employee and trade-union focused Employment Law Firm in Canberra;
    • BAL Lawyers is listed as a Recommended employer-focused  Employment Law Firm in Canberra;
    • Gabrielle Sullivan and John Wilson are each named as the two Leading employee and trade union focused Employment Lawyers in Canberra
    • Gabrielle Sullivan and John Wilson are each named among Recommended employer-focused Employment lawyers in Canberra.

    “We are delighted that both our preeminent work on behalf of employees, and employers, has been formally recognised” John Wilson, a Legal Director in the team said today.

    “We are also pleased that our employer focused monthly HR Breakfast Club  discussion forum has become somewhat of an institution, bringing together HR Managers from across Canberra to look closely at the issues that people managers face on a daily basis,” says Gabrielle Sullivan, a regular speaker at the events.

    Gabrielle and John, along with Associate Rebecca Richardson and Lawyer Andrew Chakrabarty, assist their clients in what is often either a highly charged and disruptive time in their lives.  The team’s unrivalled expertise is complemented by their solution-centred approach, which puts their clients’ interests at the heart of the matter.

    Doyle’s Guide is an independent body that publishes rankings predominantly based on peer review and client feedback.

    Employment Law and Investigations at BAL

    (L-R) Andrew Chakrabarty, Gabrielle Sullivan, John Wilson and Rebecca Richardson

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  • essential guide to voluntary planning agreements

    Essential Guide to Voluntary Planning Agreements

    The latest edition of our Essential Guide to Local Government Law will assist local councils to understand the benefits and the requirements which apply to the making of a voluntary planning agreement under the Environmental Planning and Assessment Act 1979 (EPA Act).

    What is a Voluntary Planning Agreement?

    A voluntary planning agreement (VPA) is a written agreement between a planning authority (such as a local council) and a developer who has sought a change to an environmental planning instrument (EPI) or who has made or proposes to make a development application (or who is associated with someone who has) in which the developer agrees to make contributions to the authority for use for a public purpose.

    Although it is described as an agreement, a VPA usually takes the form of a deed, because the developer is making contributions but is not usually receiving any consideration in return.

    A high degree of transparency is required throughout the VPA process to preserve the integrity of the development assessment process.  The developer wants the consent authority to consider its offer to enter into a VPA when the Council evaluates a proposal to amend an EPI or considers the merits of a development application.[1] It is therefore important that the public can see what additional benefits the developer is offering to provide, to reduce the risk of bias or of irrelevant matters being taken into account. Planning authorities should not place disproportionate weight on a VPA when considering the planning merits of a development application or a proposal to amend an EPI[2].

    Councils should be careful to ensure that, where the circumstances described above exist, they follow the prescribed process for the making of VPAs and do not enter into agreements which have a similar effect outside that regime. Considering such agreements in the development assessment process may result in a development consent being found to be invalid.[3]

    What are the benefits of a Voluntary Planning Agreement?

    A developer will often offer to make contributions as part of the process of seeking a change to an EPI or preparing a development application as a way to offset potential impacts of development on the broader community.

    A broad range of contributions can be obtained by a planning authority under a VPA. Common forms of contributions which are provided under VPAs include (but are not limited to):

    1. the dedication of land free of cost, which can include land outside the scope of the land to which the relevant application relates.
    2. the payment of one or more monetary contributions. These can be in addition to development contributions and can exceed the development contribution cap amount. Provision can also be made in a VPA for monetary contributions to be reviewed and adjusted according to cost revisions rather than indexation.
    3. the carrying out of works, such as the construction or upgrade of roads, stormwater infrastructure, playgrounds and community facilities, environmental works etc.

    VPAs therefore provide a mechanism under which a willing developer can make contributions of a type or value which the planning authority could not require the developer to provide by other means. There does not need to be a strong connection between the proposed development and a monetary contribution or the works to be undertaken under a VPA, although the existence of some nexus between the two makes it less likely that the VPA might be seen as an attempt by the developer to ‘buy’ a development consent.[4]

    What information must be included in a Voluntary Planning Agreement?

    The EPA Act requires that the following information be included in a VPA:[5]

    1. a description of the land to which the agreement applies,
    2. a description of:
      1. the change to the environmental planning instrument to which the agreement applies, or
      2. the development to which the agreement applies,
    3. the nature and extent of the provision to be made by the developer, the time or times by which the provision is to be made and the manner in which the provision is to be made,
    4. in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 7.11, 7.12 or 7.24 to the development,
    5. if the agreement does not exclude the application of section 7.11 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 7.11,
    6. a mechanism for the resolution of disputes under the agreement,
    7. the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.

    A planning agreement cannot exclude the application of section 7.11 or 7.12 of the EPA Act unless the consent authority for the development or the Minister is a party to the agreement. A VPA cannot exclude the application of section 7.24 of the EPA Act without the approval of the Minister.[6]

    What is the process for entry into a Voluntary Planning Agreement?

    The process for entry into a VPA is constrained by the processes set out in the EPA Act and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and is generally as follows:

    1. a developer makes a written offer to provide contributions to a public authority in connection with a proposal to amend an EPI or a development application. The planning authority to whom the offer is directed does not have to be the same entity as the consent authority for the proposed development,
    2. one party will prepare a draft VPA[7] and ‘explanatory note’, which summarises the key aspects of the VPA.[8] The terms of the draft VPA are then negotiated by the parties,
    3. the draft VPA and explanatory note are placed on public exhibition for not less than 28 days. Where possible, exhibition should occur contemporaneously with the giving of notice of the relevant EPI or development application to which it relates,[9]
    4. it is implicit that any submissions which are made in the exhibition period are considered by the planning authority before it decides whether or not to enter into the VPA. Where material changes need to be made to a VPA after the exhibition period has ended it will be necessary to re-exhibit the amended draft VPA before the parties enter into it,
    5. the VPA must then be signed by the parties[10] (although it may not commence until some further event has taken place, such as the grant of development consent),
    6. the VPA will (often) be registered on the title of the land to which it relates, and
    7. any amendments made by the parties wish to the VPA will need to be placed on public exhibition and any submissions considered prior to any such changes taking effect.

    How are Voluntary Planning Agreements enforced?

    A VPA must include a suitable mechanism for its enforcement. The “suitability” of a proposed enforcement mechanism should be assessed by reference to whether the means of enforcement is likely to eliminate or reduce, to a commercially acceptable level, the risk that the obligation created by the VPA will not be performed and that the planning authority or the community will not receive the intended benefits.[11]

    Common enforcement mechanisms include bonds and guarantees. A bond provides financial security by giving the planning authority access to money which it can use to fulfil a payment obligation or to complete works if a developer is unable or unwilling to do so. A deed of guarantee operates by requiring another entity to guarantee that it will fulfil the developer ’s obligations under the VPA if it is unable or unwilling to do so.  Alternative types of security could include registering a caveat on the title to the land or a combination of security options such as providing a bond and registering a caveat or providing a bond and deed of guarantee from a related or parent company. An assessment as to what enforcement mechanism is ‘suitable’ should be made on a case by case basis.

    In addition to calling on the enforcement provisions included in the VPA, a planning authority can enforce compliance with a VPA by:

    1. requiring contributions to be made as a condition precedent to the issue of a subdivision certificate under s.6.15(1)(d) of the EPA Act, or
    2. following the dispute resolution mechanisms in the VPA, or
    3. seeking an order for compliance under s.9.45 of the EPA Act by commencing civil enforcement proceedings in the Land and Environment Court of NSW.

    Public Voluntary Planning Agreement resources

    There are a range of public resources on VPAs which Council’s may find useful, including:

    This guide provides general advice only. Please contact Alice Menyhart, Director in our Planning, Environment and Local Government Team for specific VPA advice or for assistance in drafting, reviewing, amending or enforcing a VPA.

    The law in this Guide is current as at 13 January 2021.

    [1] EPA Act, s.4.15(1)(a)(iii).

    [2] See additional guidance on the fundamental principles which apply to the consideration of planning agreements in the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005. DPIE published an exhibition draft Planning agreements practice note in April 2020, although it has not yet been made.

    [3] Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140.

    [4] See Tesco Stores v Secretary of State for the Environment & Ors. [1995] 1 WLR 759.

    [5] EPA Act, s.7.4(3).

    [6] Or a development corporation designated by the Minister to give approvals under subsection 7.3(5A).

    [7] A template VPA can be found in Attachment A to the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005.

    [8] Cl. 25E of the EPA Regulation sets out what must be included in the explanatory note.

    [9] Cl 25D EPA Regulation

    [10] A VPA must be signed by the parties to the agreement: cl.25B(1)(b) EPA Regulation

    [11] Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429, 459 [132].

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  • dog on- and off-leash areas

    Dog on- and off-leash areas and the EPA Act

    A recent decision of the NSW Land and Environment Court demonstrates that NSW councils need to carefully consider the provisions of both Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act) when making decisions about the creation of on- and off-leash areas for dogs under the Companion Animals Act 1998.

    In Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 Preston CJ has provided a detailed and informative analysis of the way the two Acts interact. This article has been prepared to provide a brief summary of the decision, with a focus on the application of the EPA Act in relation to the establishment of dog on and off-leash areas in public reserves.

    Background 

    The former Pittwater Council had given an order pursuant to the Companion Animals Act that all dogs were prohibited on “all beaches” in its area. This position was revisited in 2019 when the Northern Beaches Council twice resolved to allow the public to use Station Beach with their dogs. The first decision concerned the use of part of the beach as an off-leash area on a trial basis for 12 months. The other decision, made some months later, concerned the use of part of the beach as a dog on-leash area.

    Station Beach, on the Pittwater side of Palm Beach, and the adjacent Governor Phillip Park, comprise a reserve for public recreation and have been so for nearly a century. The local council, now Northern Beaches Council, had the care, control and management of the reserve.

    The Palm Beach Protection Group Inc. challenged the Council’s decisions on two grounds:

    1. The Council breached s 4.2 or s 4.3 of the EPA Act when authorising the carrying out of development, being the use of the beach by the public with their dogs, as the use was either prohibited development or development permitted only with development consent, which had not been obtained (the unlawful development ground); and
    2. The use of the beach authorised by the Council’s decisions was an ‘activity’ within the meaning of Part 5 of the Act, that each of the Council’s decisions was an approval of that activity, and the Council, as the determining authority, had not considered the environmental impact of the activity before granting that approval (the inadequate EIA ground).

    The Group also contended that the Council was required by s 5.7 of the EPA Act to consider an environmental impact statement prior to granting the approval as the activity was ‘likely to significantly affect the environment’.

    The unlawful development ground

    The crux of the Group’s complaint on these grounds was that the use of the reserve by people with their dogs was a separate and distinct use of the beach to that by people without dogs, and was a use that was either prohibited, or that required consent under the applicable environmental planning instruments.

    The Council contended, amongst other things, that:

    • the use of land authorised by its decisions was use for the purpose of a “recreation area”, a land-use which was permitted with consent under the relevant land use zones, but which could be carried out without consent on a public reserve under the care and control of the Council under cl. 65(3) of the Infrastructure SEPP; and
    • alternatively, development consent was not required because the use of the land was a “continuing use” authorised by s 4.68(1) of the EPA Act.

    The Court found that the use of Station Breach enabled by each Council decision was properly characterised as being development for the purpose of a recreation area.[1] His Honour observed that the detailed activities carried out before may be different to those carried out after the Council’s decisions, in that people used the beach and adjacent waters without their dogs before, but with their dogs after, the Council’s decisions, but that this did not constitute a change in the purpose of the use. The characterisation of the purpose of the use is to be done at the appropriate level of generality, sufficient to cover the individual activities, but not in terms of the detailed activities.[2]

    The Court went on to find that development consent was not required because the use of the reserve for the purpose of a recreation area had lawfully commenced almost a century earlier, long before the introduction of any requirement to obtain development consent for that use under relevant planning instruments. In so doing, the Court held that the Council’s decision did not involve an enlargement, expansion or intensification of the use of the land for the purpose of recreation area, despite the Group adducing evidence of an increased number of dogs on the reserve following the Council’s decision. The Court reasoned that the use of the reserve, both before and after the Council’s decisions, was still for the purpose of public recreation and that, while the nature of the use may have changed, what mattered was whether the number of people using the beach and adjacent waters had increased or the area of the beach and adjacent waters being used had increased. The Court found that this was not established by the evidence.

    The inadequate EIA ground

    The Group also contended that each of the Council’s decisions constituted an approval of an activity, being the use of land, under Part 5 of the EPA Act. In doing so, the Group argued that Part 5 applied so as to impose a twofold duty on the Council. First, the Council had a duty under s.5.5 to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity”. Secondly, where the activity was likely to significantly affect the environment, before granting any approval, it had a duty under s.5.7 to examine and consider an environmental impact statement in respect of the activity. The Group presented expert evidence to show that the use of Station Beach by dogs was likely to significantly affect the environment because of its likely impact on the threatened seagrass population Posidonia australis and the threatened seahorse species Hippocampus whitei (White’s Seahorse).

    The Council contested that its decisions constituted “an approval” of an “activity” under Part 5, submitting that the decisions merely involved exercises of power under the Companion Animals Act, being a revocation or variation of the former Pittwater Council’s order under that Act to prohibit dogs on all beaches. In the alternative, the Council contended that it had complied with Part 5 because:

    • it had carried out an environmental impact assessment of the dog off-leash area trial, in the form of a “Review of Environmental Factors” (REF);
    • it had considered the REF to the fullest extent possible, evident by its adoption of certain recommended mitigation measures;
    • it had concluded that the dog off-leash area trial was not an activity likely to significantly affect the environment, so that an EIS was not required; and
    • there was no additional requirement to consider the impacts on the environment in relation to the second decision concerning the dog on-leash area, as the Council’s assessment in relation to the off-leash area was adequate and its determination that that activity was not likely to significantly affect the environment was reasonable.

    The Court, however, held that Part 5 of the EPA Act did apply to the Council’s decisions.[3]  It found that the Council had breached ss.5.5 and 5.7 in its consideration and approval of the activity of allowing dogs to use the reserve on-leash and had breached s.5.7 by granting approval to the use of the reserve by dogs off-leash without having obtained, examined and considered an EIS in respect of the activity.

    The Court gave extensive reasons. Its key findings were that:

    • with respect to the on-leash area, the Council had not considered the environmental impacts of the activity. In this regard the Court observed that the report to the Council meeting approving the activity did not undertake any examination of any matters affecting or likely to affect the environment by reason of the activity. Although the report referred to the earlier approval of the off-leash activity, the Court found those references did not import the assessment of the environmental impact of that activity;[4]
    • the duty under s 5.5(1) to consider the environmental impact of an activity applies to each and every activity that a determining authority considers. An environmental assessment under 5.5(1) of one activity does not suffice to discharge the duty under s 5.5(1) to consider the environmental impact of another activity.[5] The activities or conducting a dog off-leash trial and allowing dogs on-leash were different.[6] The Council could therefore not rely on the REF for the dog off-leash trial to discharge its obligation to consider the environmental impact of the approval of the dog on-leash area; and
    • in respect of the breach of s.5.7:
      • the finding in the REF that the off-leash trial was not likely to have a significant effect on the environment was not adopted by the Council, so that the Council did not in fact find that the dog off-leash area trial was not likely to significantly affect the environment;[7]
      • the finding in the REF that the proposed trial was unlikely to have any significant or long-term negative environment impact was conditional upon all of the mitigation measures outlined with the REF being implemented. The Council had not implemented all of those measures;[8]
      • as a matter of jurisdictional fact, the activity of allowing both dogs on and off-leash at Station Beach approved by the Council was likely to significantly affect the environment by reason of a range of direct and indirect impacts on the environmentally sensitive seagrasses and White’s seahorse; and[9]
      • consequently, the Council had granted an approval to the activities without having obtained and considered an EIS in respect of that activity when it was required to have done so.[10]

    Implications

    There are several important lessons to be learned from this case. First and foremost, a council making decisions with respect to dog on- and off-leash areas under the Companion Animals Act should approach its task mindful that those decisions are subject to the EPA Act.  While it is likely that in most instances dog on- and off-leash areas will be within a public reserve for public recreation purposes for which continuing lawful use protections under the EPA apply, a council will nevertheless need to consider the environmental impacts of creating or varying dog on or off-leash areas of the activity under Part 5.

    The Court’s decision will also be of broader interest for determining authorities under Part 5. First, the decision emphasised the need to consider the environmental impacts for each activity being contemplated. Although a determining authority might reasonably conclude that a particular activity has smaller environmental impact than a similar activity previously contemplated and assessed, that fact alone does not discharge the duty of a determining authority to properly consider the environmental impact of each activity under s.5.5(1).  Secondly, in order to properly discharge its duty under s.5.7(1), a determining authority should make an affirmative decision about whether the proposed activity will, or is likely to, have a significant effect on the environment. Finally, where a REF concludes that an activity is unlikely to have a significant impact but only if carried out in accordance with specified mitigation measures or controls, a determining authority must ensure that those measures or controls are implemented to avoid the risk of its approval being set aside.

    If you have specific areas of concern relating to dog on- and off-leash areas in your local government area, please contact Andrew Brickhill or Alan Bradbury for further information and advice.

    [1] At [131]

    [2] At [134] citing Royal Agricultural Society (NSW) v Sydney City Council at 310; Chamwell Pty Ltd v Strathfield Council at [36].

    [3] At [253].

    [4] At [263]

    [5] At [268]

    [6] At [269]

    [7] At [282]

    [8] At [283 – 285]

    [9] At [282, 345]

    [10] At [322, 345]

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  • Homebuilder grant extended

    Real Estate Alert: Homebuilder Grant Extended

    The Federal Government has announced an extension of the Homebuilder Grant, which includes:

    • extending the eligibility period from 1 January 2021 to 31 March 2021;
    • reducing the grant to $15,000.00 for those applicants who sign contracts between 1 January 2021 and 31 March 2021;
    • extending the construction commencement window by 6 months (to the end of September 2021); and
    • increasing the price cap for new builds in New South Wales (now $950,000.00).

    To be eligible for the Homebuilder Grant you must:

    • be a natural person (e.g. not a corporation);
    • be an Australian citizen aged 18 or over; and
    • earn less than $125,000.00 as an individual, or less than $200,000.00 as a couple.

    Construction must commence within six (6) months of the signing the contract.

    For further information please contact the Real Estate Team at BAL Lawyers.

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  • COVID relief for businesses

    COVID relief for businesses extended

    Businesses experiencing financial distress as a result of COVID-19 will continue to receive financial relief until 31 December 2020.

    What does this mean for businesses?

    The extension predominantly impacts companies in relation to statutory demands and insolvent trading.

    Statutory Demands

    When creditors issue a statutory demand against a company before 31 December 2020, the demand must be in the amount of $20,000 or more and the company has six months to respond to this demand. This is a marked increase from the pre-COVID statutory framework, where creditors could issue a demand for any amount above $2,000 and companies would only have 21 days to respond.

    Insolvent Trading

    In addition, companies’ insolvent trading relief will be extended to 31 December 2020. This measure insulates directors from any personal liability for debts incurred in the ordinary course of the business if they trade on behalf of the company whilst it is insolvent. It should be noted that this relief does not extend to directors if they have breached their statutory or common law directors’ duties.

    What does this mean for individuals?

    For natural persons the legislation provides more support in relation to bankruptcy notices and the extension of the moratorium on declarations of intention for debtors’ petitions.

    Bankruptcy Notices

    Individuals who receive a bankruptcy notice before 31 December 2020 will have six months to respond and the notice must be in the amount of $20,000.00 or more. As with companies, this is a significant increase from the pre-Covid statutory framework where the debt only needed to be $5,000.00 or more and individuals only had 21 days to respond.

    Debtors’ Petitions

    The moratorium period for a declaration of intention to issue a debtor’s petition with the Australian Financial Security Authority will continue to be six months rather than the usual 21 days. This enables individuals to make their own provisions with creditors and if those arrangements are ineffective, they can then declare themselves bankrupt. If an individual fails to declare themselves bankrupt at the end of that six-month period, a creditor can apply to a court to make the person bankrupt.

    Don’t be complacent

    While the extension of these measures is good news for business currently in financial distress, it is not the time to be complacent in managing your debts. If you are at all concerned about where your financial position might leave you in a legal context, contact Nicole Harrowfield or the  Business & Corporate team at BAL Lawyers.

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  • trust deeds foreign surcharge

    Discretionary trust deeds and foreign surcharge liability – act before 31 December 2020

    On 24 June 2020, in New South Wales, the State Revenue Legislation Further Amendment Act 2020 (‘the Act’) received royal assent and is now in force.  If you are a trustee or beneficiary of a trust that owns property in NSW this new amendment could have far reaching implications for you.

    The Act has amended the Land Tax Act 1956 (NSW) and the Land Tax Management Act 1956 (NSW) so that if there is or there may be a “foreign” beneficiary of a discretionary trust, that trust will incur a foreign land tax surcharge. The only way to avoid this surcharge is for the trust deed to contain an irrevocable provision that specifically prevents foreign persons from benefiting from the discretionary trust. If your trust deed is silent on current or future foreign beneficiaries, then the land tax surcharge will apply.

    Two of the main purposes of Act[1] are:

    1. To avoid discretionary trusts becoming subject to surcharge purchaser duty or surcharge land tax where there is no intention that income or assets in the trust will be distributed to foreign persons; and
    2. To enhance landholder duty provisions to address inequities and anomalies their application and to bring New South Wales closer in alignment with other jurisdictions and to fortify them against avoidance through the use of foreign acquisitions vehicles.

    So, who is a “foreign person”?

    For the purposes of determining whether there will be a surcharge on purchaser duty or land tax, a ‘foreign person’ is, essentially, someone who:

    1. is not an Australian Citizen; and
    2. does not reside in Australia for at least 200 days per annum.

    It follows that foreign corporate entities are not permitted to be beneficiaries of discretionary trusts. A foreign entity is as an entity in which a foreign person shareholder holds at least a 20% interest in the entity. For more information on who is a “foreign person” NSW Revenue have this helpful page: https://www.revenue.nsw.gov.au/help-centre/resources-library/g009.

    What is the amount of foreign land tax surcharge?

    The trusts that fail to comply with these new regulations will be required to pay a foreign land tax surcharge of 2% on residential land on top of ordinary land tax rates. Additionally, non-compliant trusts will be subject to a foreign surcharge rate of duty of 8% that will apply to dutiable transactions pertaining to residential property.

    It is important to note, that even if you do not pay land tax, you could be required to pay the land tax surcharge if your trust contravenes these new provisions.

    What do you need to do?

    Trustees will have until 31 December 2020 to update their trust deeds to include a provision that irrevocably and specifically prevents foreign persons from benefiting from discretionary trusts. As of 1 January 2021, trustees will be required to pay the foreign surcharge if they have failed to include such a provision in their trust deed.

    If you need assistance varying the terms of your trust deed to avoid the foreign surcharge, get in contact with Katie Innes or Ben Grady at BAL lawyers.

    [1] As outlined in the Second Reading Speech

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  • Planning & Environment Law Webinar

    Register

    The webinar took place at 12:00pm – 1:00pm on Wednesday 23 October  & Tuesday 3 November 2020.

    Input on the topic was followed by the opportunity for discussion and Q & A.

    For information about recent Planning & Environment cases and Part 6 Certificates email the presenter.

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  • Weed control post bushfires

    Essential Guide to Local Government Law | Weed Control under the Biosecurity Act Post Bushfires

    Key Instruments

    Biosecurity Act 2015 (NSW)
    Biosecurity Regulation 2017 (NSW)

    Relevant NSW Department of Primary Industry (DPI) policies and procedures:

    Biosecurity – Weed Management
    Biosecurity Directions
    Biosecurity Undertaking
    Biosecurity Formal Weed Inspections 

    Following the bushfires across much of NSW that had a catastrophic impact on many local government areas, councils and communities are deep into recovery efforts.  As Spring rainfall adds up, one area that may be overlooked is the risks and opportunities that unplanned fire and subsequent favourable conditions can present in relation to weeds.

    The interactions between fire and weeds are complex, varied and often difficult to predict.[1] Depending on the area, unplanned fires can create an opportunity for competitive weed species to colonise and dominate burnt sites.[2]  The movement of equipment, machinery, stock and people associated with fire response and recovery efforts can also facilitate the inadvertent spread of weeds.[3]  However, wildfires can also present local councils and landholders with the chance to undertake opportunistic weed control actions, as the destructive effect of fires can sometimes reduce target weeds and may also facilitate improved access for weed treatment.[4]   Weed management, now regulated under the Biosecurity Act 2015 (NSW) (the Act), is therefore part of the process of restoring fire affected communities.

    The Biosecurity Act 2015 (the Act)

    The Act establishes a comprehensive framework for the management of pests, diseases and contaminants. It includes the noxious weed control functions carried out by local councils that were previously included in the, now repealed, Noxious Weeds Act 1993 (NW Act).

    Although the Act has now been in force for a couple of years, there has only been one Court decision that has considered its scope and then only in a limited way. In Goode v Gwydir Shire Council [2020] NSWLEC 33, the Court held that the Act did not confer any right of private action on members of the public and that only the Secretary can bring proceedings in the Land and Environment Court to remedy or restrain a breach of the Act.[5]

    Where is the reference to weeds?

    Under the Act priority weeds are no longer defined as ‘noxious’ and the noxious class listings under the repealed NW Act no longer apply. This provides greater flexibly to manage and control all weeds.[6]

    The Act is also ‘outcomes focused’ in that its scope is defined with reference to things which may have a ‘biosecurity impact’. A biosecurity impact is an adverse effect on the economy, the environment or the community that arises, or has the potential to arise, from a ‘biosecurity matter’.[7] Importantly, for the regulation of weeds, a biosecurity matter includes the introduction, presence, spread or increase of a pest into or within NSW.

    In most cases plants previously categorised as ‘weeds’ are now a ‘pest’ for the purposes of the Act. ‘Pest’ includes a plant, (whether dead or alive) that has, or is suspected of having, an adverse effect on the environment, the economy or the community because it has the potential to, amongst other things:

    1. out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight;
    2. reduce the productivity of agricultural systems or the value of agricultural products;
    3. reduce the amenity or aesthetic value of premises; or
    4. harm or reduce biodiversity.[8] 

    There is also list of prohibited matters, including weeds, in Schedule 2 to the Act. However, this is not an exhaustive list of the weeds to which the Act applies and any plant which has or is likely to have a biosecurity impact is subject to the Act.

    How does the Act regulate weeds?

    The Act regulates weeds in three key ways:

    1. by imposing biosecurity duties on persons and occupiers of land to do various things to avoid and manage biosecurity impacts;
    2. regulating specific weeds; and
    3. regulating specific regions or zones.

    This Guide focuses on the biosecurity duties imposed by the Act which apply to weeds, for which local councils have a key regulatory role.

    Biosecurity duties

    The biosecurity duties imposed by the Act include:

    1. a general biosecurity duty;[9]
    2. a duty to notify the presence of a prohibited matter;[10]
    3. a duty to prevent, eliminate or minimise risk posed by a prohibited matter;[11] and
    4. a duty to notify a biosecurity event.[12]

    A person who fails to discharge any of their ‘biosecurity duties’ is guilty of an offence under the Act.

    In relation to weeds, the general biosecurity duty requires that any person who deals with a weed and knows or ought reasonably to know of the biosecurity risk posed by it has a duty to ensure that the risk is prevented, eliminated or minimised.[13]  The Act contains a very wide definition of ‘dealing’.[14]

    An occupier of land is responsible for any weed on that land unless they can establish otherwise. The Act extends this duty to include a requirement that occupiers take steps to prevent, eliminate or minimise any biosecurity risk posed by weeds on public roads, watercourses and other public land in close proximity to the occupier’s land.[15]  Where there is more than one ‘occupier’ of land then each occupier is subject to the same biosecurity duty.[16]  ‘Occupier’ is defined in the Act to include any person having the care, custody or control of the land. The Act does not distinguish between private occupiers of land and land occupied by the Crown or a local council. It is therefore important that councils are aware of their obligations and duties as a land occupier, as well as their duties when acting as the Local Control Authority (LCA) under the Act.

    Council functions

    In most cases, councils are the LCA for their Local Government Area. As the LCA, a council is responsible for addressing issues relating to weeds in their area, including exercising weed control functions, implementing weed control programs, reporting, and keeping records.[17]  This includes inspecting private and public lands to ensure owners/occupiers of land carry out their obligations under the Act.[18]

    Council’s weed control functions are primarily exercised through authorised officers.[19]  Any person appointed as an inspector under the NW Act immediately before its repeal is taken to have been appointed as an authorised officer for the purposes of the Act.[20]

    Authorised Officer Functions

    Council’s authorised officers may exercise the powers conferred under Part 8 of the Act. These powers are similar to the functions given to investigation officers under the Environmental Planning and Assessment Act 1979 (the EPA Act) and to authorised officers under the Protection of the Environment Operations Act 1997 (the PEO Act). The powers include:

    1. information gathering – officers can require information and records to be furnished, require answers to questions, and demand a person’s name and address;
    2. entering premises – enter onto any premises (note that the consent of the occupier or a search warrant is required for residential premises[21]); and
    3. investigation and risk management functions – these include a range of actions which can be undertaken by the authorised officer, such as conducting examinations, taking samples or erecting signs; however, these must be done in accordance with the purposes and processes specified in the Act.

    As the LCA, council’s responsibilities under the Act are limited to weed management and council’s authorised officers can only exercise these powers in relation to weeds located on land (or waterways) for which the Council is the LCA.[22]  Authorised officers cannot exercise these functions in relation to the other matters covered by the Act. DPI has published an Authorised Officers FAQs guide which may assist councils and their staff who are responsible for weed control.

    Directions

    An important function given to an authorised officer is the power to give a ‘biosecurity direction’. Authorised officers can give two different forms of directions:

    1. a general biosecurity direction, which will apply to the public generally or to a specified class of persons; or
    2. an individual biosecurity direction, which applies to a particular person.[23]

    A general direction can prohibit, regulate or control (absolutely or conditionally) the carrying out of any activity in connection with weeds, a carrier (meaning anything capable of having a weed on it, attached to it or contained in it) or a potential carrier. A general direction may be given by an authorised officer if the officer reasonably believes the direction is necessary for a purpose identified in section 126 of the Act (e.g to prevent, eliminate or minimise a biosecurity risk or prevent, manage or control a biosecurity impact) and the direction does not exceed the limitations set out in sections 134 to 137.

    A biosecurity direction can also be given to a particular person – an ‘individual biosecurity direction’.[24] Examples of what may be included in an individual biosecurity direction are in section 130 of the Act. These include directions requiring the treatment or destruction of a biosecurity matter, such as a weed. Directions should be supported by evidence, such as records of observations or conversations, photographs and reports. 

    The Act does not expressly require an authorised officer to give advance notice of their intention to issue a biosecurity direction. This is similar to the situation under the PEO Act in respect of notices given under that Act. In that context, the Court has found that, except in urgent or emergency situations, notice is still generally required in order to afford procedural fairness to the intended recipient.[25]  In contrast, the Act expressly states that an authorised officer is not required to notify any person who may be affected by a biosecurity direction before giving the direction.[26]  However, where possible, we recommend that authorised officers’ give notice of their intention to issue a biosecurity direction and provide an opportunity for occupiers to undertake voluntary weed control before a final direction is issued under the Act, to ensure procedural fairness.

    DPI has prepared a Biosecurity Directions Procedure, which officers should consult if they are considering giving a biosecurity direction.  This procedure applies to all biosecurity risks and not just weeds. The advice provided within the Procedure is focused on suggesting practices and procedures for risk mitigation.

    General Biosecurity Directions

    Authorised officers can give a general biosecurity direction by publishing notice of the direction on the DPI website or in the Gazette (or both) or, in an emergency, displaying a copy of the direction in a prominent place in or adjacent to the relevant premises.[27]  While there is an express provision in s.141 providing that notice is not required, DPI guidance states that officers should be proactive in advising persons affected by the general direction.

    DPI’s procedure also specifies that a general biosecurity direction can only be given by an authorised officer with the appropriate departmental approval. The following approval is required:

    • NSW DPI, Director level or higher
    • LLS, General Manager level, and
    • LCA, General Manager level.

    This appears to be a risk mitigation measure proposed by DPI, as it is not required under the Act.

    Individual Biosecurity Direction

    Authorised officers may give an individual biosecurity direction by serving the direction in writing to the individual.[28]  Section 392 of the Act sets out how documents are to be served.

    A direction may also be given orally (in person), however the oral direction must be confirmed in writing within 7 days after it is given, unless the direction has been complied with by that time.

    Similar to provisions under the EPA Act and the PEO Act, an authorised officer may charge an individual a fee for the administrative costs involved in preparing and giving them a biosecurity direction.[29]   Whilst the fee is payable to the Secretary, s.373 of the Act allows a council to exercise any function of the Secretary in relation to the recovery of fees charged in the exercise of functions by a council-appointed authorised officer.

    Emergency Functions

    The Act also makes provision for authorised officers to exercise particular functions in an emergency. The circumstances in which this power is enlivened is set out in s.122 of the Act. These include where an authorised officer reasonably believes it is necessary to exercise the function because a biosecurity emergency has occurred, is occurring or is imminent, or where they reasonably suspect a biosecurity emergency has occurred, is occurring or is imminent.  In relying on the emergency provisions it would be prudent for officers to document the reasons why they considered the circumstances to be an ‘emergency’.

    Weed control notices under the Noxious Weeds Act

    Under the repealed NW Act, a council was able to give a ‘weed control notice’ to an owner or occupier of land, requiring the owner or occupier to carry out any of the occupier’s obligations to control noxious weeds. The new Act contains a savings provision which allows any person to continue to apply to the LCA for a certificate as to weed control notices affecting particular land and as to any outstanding expenses payable to the authority or any resulting charge on the land under the repealed Act. If a Council receives such a request, they must issue a certificate addressing these matters.

    Conclusion

    This guide has provided a brief overview of some of the responsibilities and functions given to local councils under the Act to manage weeds in their local government area.

    For further information, or for assistance or advice on enforcement and compliance, please contact the Planning, Environment and Local Government team at BAL Lawyers on (02) 6274 0999.

    The content contained in these guides are, of course, general commentary only. They do not constitute legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

    Please note that the law detailed in this Essential Guide is correct as at 13 October 2020.

    [1] Mark Graham and Kevin Taylor, ‘Fire, Weeds and the Native Vegetation of New South Wales: A report prepared by the Hotspots Fire Project’, March 2018, 10.

    [2] Ibid, 14.

    [3] Tasmanian Government Department of Primary Industries, Parks, Water and Environment, ‘Managing Weed Spread After Fire’, Invasive Species (online, 28 November 2019) <https://dpipwe.tas.gov.au/invasive-species/weeds/weed-publications-and-resources/weed-spread-after-fire>

    [4] Graham and Taylor, above n 1, 28.

    [5] Goode v Gwydir Shire Council [2020] NSWLEC 33 at [74] per Pain J.

    [6] Department of Primary Industry, ‘Weed Management Legislation is Changing’.

    [7] Biosecurity Act 2015, s 13.

    [8] Ibid, s 15.

    [9] Ibid, s 22.

    [10] Ibid, s 30.

    [11] Ibid, s 36.

    [12] Ibid, s 38.

    [13] Ibid, s 22.

    [14] Ibid, s 12.

    [15] Ibid, Sch 1.

    [16] Ibid, s 20.

    [17] Ibid, s 371.

    [18] Ibid.

    [19] Ibid, s 372.

    [20] Ibid, Sch 7[9].

    [21] Ibid, s 99.

    [22] Ibid, s 372.

    [23] Ibid, s 124.

    [24] Ibid, s 128.

    [25] Liverpool City Council v Cauchi [2005] NSWLEC 675.

    [26] Biosecurity Act 2015, s 141.

    [27] Ibid, s 127.

    [28] Ibid, s 129.

    [29] Ibid, s 132.

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