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The department provides the following advice as an option for those amalgamated local governments that wish to continue to regulate by local laws those matters which are subject to section 37 of the Local Government Act 2009 (LGA) until these matters can be regulated under a new planning scheme.
This advice is not relevant to the following local governments:
The Department has received a number of inquiries from amalgamated local governments about their ability to continue to regulate by local laws those matters which are subject to section 37 of the LGA, given that any existing local laws which have not already been applied to the whole of the amalgamated local government area will automatically lapse on 31 December 2011.
The provisions of the Local Government Reform Implementation Regulation 2008 and the Local Government Reform Implementation (Transferring Areas) Regulation 2007 (the Reform Regulations) provide that an existing local law of a pre-reform local government (a continuing local law) will lapse on 31 December 2011 unless a local government repeals the local law or applies the continuing local law by local law to the whole of its local government area.
Section 37 of the LGA places restrictions on local governments making new local laws that establish an alternative development process. Some examples of matters to which section 37 may apply include:
However, section 37(3)(b) allows for existing local laws dealing with these matters to be retained and amended until a local government’s new planning scheme comes into effect.
The Department is of the view that the application of a continuing local law by a local government to the whole of its local government area may be considered an amendment of an existing local law for the purposes of section 37(3)(b) of the LGA.
The Department is of the view that a local government which applies a continuing local law to the whole of its local government area does not need to comply with the process prescribed in section 29A, provided the only amendments made to the local law provide for:
However, if after applying a continuing local law to its entire local government area under section 37(3)(b) of the LGA, a local government wishes to subsequently make substantive amendments to the local law, when making those subsequent substantive amendments it would need to comply with the process prescribed in section 29A of the LGA.
A local government must comply with all other standard local law making processes when applying a continuing local law to the whole of its local government area for the purposes of section 37(3)(b) of the LGA, including the requirements for a public interest test, public consultation and the process prescribed in section 29B of the LGA.
In respect of any existing instruments made under a continuing local law (e.g. permits, vegetation protection orders etc) appropriate transitional arrangements should be made to continue their application where appropriate. A local government should seek its own legal advice in respect of these requirements.
In practice a local government should: