Changes to Various Laws Affecting Local Governments as a Result of Emergency Measures to Manage COVID–19 Crisis

Applicable audience: Local Government, Council Planners and Referral Authorities

Summary

You will probably already be aware that the Victorian Government recently passed the COVID 19-Omnibus (Emergency Measures) Act 2020 (Omnibus Act) which came into operation on the 25 April 2020.

The purpose of the Omnibus Act is essentially two fold in that it seeks to modify certain laws and empower the making of regulations under certain Acts in order to take into account the effects of COVID – 19 on the Victorian community.

The laws that have been modified, and for which regulations are to be made, are set out in detail in the Omnibus Act. A number of these changes are of importance to local governments. Of relevance are:

1. The ability of the Governor in Council to make regulations with respect to certain eligible leases.
2. The deferring of the commencement of the Environment Protection Act 2018.
3. The making of changes to the Local Government Act 2020 to allow for certain meetings to take place electronically.
4. The making of changes to the Planning and Environment Act 1987 to allow certain documents to be provided and made available electronically and changes to panel hearings.

Amendments

Leases

Russell Kennedy has provided information about changes to leases in our recent Alert from the 5th of May 2020.

Recently, the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (Vic) which was passed on 1 May 2020, but backed to commence from the 29 March 2020, provides more detail in relation to leases. If you have questions about leases, please feel free to contact our leasing team.

Environment Protection

Russell Kennedy has prepared an Alert on the deferring of changes to the Environment Protection Act 2018 (Vic) in our Alert published on the 24th of April 2020.

Local Government Act 2020

The Local Government Act 2020 (LGA 2020) is commencing in stages.

The Omnibus Act has inserted a new Part 12 into the LGA 2020 with a commencement date of 25 April 2020.

Part 12 of the LGA 2020 provides as follows:

1. From the 1 May 2020 until 1 November 2020 – A Councillor, a member of a governing body of a regional library, or any other person may be present or attend any of the following meetings by electronic means of communication:
   1. a Council meeting;
   2. a joint meeting of Councils;
   3. a meeting of a delegated committee or a joint delegated committee;
   4. a meeting of a governing body of a regional library; and
   5. a meeting of a special committee.
      
      
2. From the 1 May 2020 until 1 November 2020 – if a meeting has to be open to the public, that meeting can be satisfied if:
   1. in relation to a Council meeting or a joint meeting of Councils if the meeting is streamed live on the internet site of the Council; and
   2. in the case of a meeting of a delegated committee or a joint delegated committee or a special committee, if the meeting is streamed live on the internet site of the Council, or the meeting is recorded and made available on the internet site of the Council as soon as practicable after the meeting.
      
      
3. A Council or delegated committee is not required to stream the meeting live on the internet site of the Council or make a recording of the meeting if the Council or delegated committee considers it necessary to close the meeting to the public because of circumstances set out in section 66(2)(a) of the LGA 2020.These circumstances are:
   1. the meeting is to consider confidential information;
   2. security reasons; or
   3. it is necessary to do so to enable the meeting to proceed in an orderly manner.

Care should be taken in considering item (c)(iii) above and when this can be acted upon.

Planning and Environment Act

The amendment to the Planning and Environment Act 1987 (PE Act) provides that where a provision of the PE Act requires a designated person (i.e. the Minister, planning authority, responsible authority, referral authority, a municipal council or any other person or entity) to make available a document for inspection at the designated person’s office free of charge, that requirement can be satisfied by posting the documents upon the designated entity’s internet site (or by other electronic means). This includes documents relating to:

1. planning permit applications, and
2. planning scheme amendments.

There is a restriction to the posting of material by electronic means. A designated entity must protect the privacy of persons by not disclosing person information about any of the following individuals without their consent:

1. an individual who has made an application for a planning permit;
2. an individual who has made an application for an amendment of a planning permit; and
3. an individual who has made a submission or an objection.

This prohibition does not extend to:

1. publishing one or more addresses of land that is the subject of an application for a planning permit, an application to amend a planning permit, or an amendment to amend a planning scheme; or
2. the making available of personal information about an individual upon request of a person if the individual has made an application for a planning permit, or an amendment to a planning permit, or has lodged a submission or objection under the PE Act.

The amendments also make modified rules about panel hearings.These are:

1. making a panel hearing available to the general public by being able to be viewed free of charge by the general public by electronic means, either while the hearing is being held or as soon as reasonably practicable afterwards;
2. a panel hearing can be made available by electronic means on an internet site or by other electronic means;
3. if a person has a right to be called or is called by a panel, the panel is not required to hear the person in person, but may instead require the person or their representative to appear and be heard at a specified time by electronic means; and
4. the Omnibus Act extends the coverage of the rights and obligations specified under section 163 of the PE Act which states:
   'A panel may report and make recommendations on a submission without hearing the person who made the submission if the person is not present or represented at the time and place appointed for the hearing of the submission.'
   
   to include the appearance or non-appearance of a person or their representative by electronic means.

These provisions will sunset 6 months after commencement of the Omnibus Act, being on and from 26 October 2020.

Conclusion

The Omnibus Act contains many more changes than those just mentioned above. However, in relation to the LGA 2020 and the PE Act, the second reading speech of the Omnibus Act states in part:

“The Bill will amend the Local Government Act 2020 to permit local councils and libraries to operate more flexibly by having virtual council meetings, ensuring continued service delivery and decision‐making. Members of the public will be able to observe certain meetings online.”

“It is critical that Victoria’s planning system continues to operate during the COVID‐19 restrictions, to send a strong signal to the community, industry and investors that planning remains open for business. The Bill will amend the Planning and Environment Act 1987 to enable requirements to make planning scheme amendments, planning permit applications and other documents physically available for inspection to be satisfied by displaying these documents on an Internet site. It will also enable planning panels to conduct hearings by video conference or in other ways."

Further information

If you require any further information, please contact Astrid Di Carlo on (03) 9609 1576 or adicarlo@rk.com.au or Peter Healy on (03) 9609 1596 or phealy@rk.com.au.

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