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Application of Section 37 of the Local Government Act 2009 to Continuing Local Laws in Amalgamated Local Government Areas

Purpose

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:

a local government not affected by the structural reforms implemented in 2008
an amalgamated local government that has implemented its new planning scheme
an amalgamated local government which has repealed any local laws to which section 37 of the LGA applies
an amalgamated local government which intends to repeal any local laws to which section 37 of the LGA applies
an amalgamated local government which intends to allow any local laws to which section 37 of the LGA applies to lapse on 31 December 2011;

Background

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:

vegetation clearing
advertising devices
gates and grids
levees
roadside dining.

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.

Application of section 37

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.

Application of section 29A State interest check

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:

the continuation of instruments made under any other continuing local laws about the same matter that are repealed
the repeal of any anti-competitive provisions identified during the public interest test process.

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.

Application of other procedural requirements

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.

Transitional arrangements for instruments made under continuing local laws

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.

Practical implications of this advice

In practice a local government should:

select one of the continuing local laws, subject to section 37 of the LGA, that applied in one of its former merging local government areas
apply that local law to the whole of its local government area
in undertaking this process must comply with all the standard local law making processes prescribed in the LGA other than the requirements prescribed in section 29A
make appropriate transitional arrangements for any existing instruments made under any other continuing local laws that are being repealed as a consequence of the application of one continuing local law to the entire area
these processes need to be completed by 31 December 2011.

Last updated on Tuesday, 07 August 2012