The Local Law February edition by McCullough Robertson Lawyers

The Local Law

Navigating good government

February 2025

Welcome

We are pleased to bring you the February 2025 edition of The Local Law.

In an ever-changing landscape of local government, staying informed is crucial. This publication is designed for CEOs, elected representatives, local government officers and inhouse lawyers, offering insights and updates on key decisions, legislation, and relevant topics you need to make informed decisions.

In this edition, we explore penalty infringement notices, key lessons on contract administration and insurance covenants, and reflect on five years of the Human Rights Act. We also unpack additional entry powers under the Local Government Act and outline key takeaways from the Cordwell Resources v Noosa decision. Lastly, we provide an update on the Yes in Faith’s Backyard reforms to address the housing crisis.

Our thoughts are with the communities who have been impacted by the recent floods. We recognise the incredible efforts of local councils, emergency responders, and volunteers working tirelessly to support recovery. As always, we stand ready to assist in any way we can.

To provide feedback or if you would like to read more about particular topics, please send your thoughts to a member of our team.

We hope that you find this edition insightful and engaging.

Troy Webb

Partner and Head of Local Government

How penalty infringement notices work

Penalty Infringement Notices

Council has a variety of mechanisms available within its ‘enforcement toolkit’. Determination of the most appropriate tool to deploy will vary from case to case. Factors to consider in that assessment include the seriousness of offending, historical noncompliance, council resources and cost and desired outcome (rectification, deterrence, etc.).

Issuing a Penalty Infringement Notice (PIN) is a commonly used option by local governments and enforcing authorities.

What are PINs?

A PIN is a statutory notice which imposes a monetary fine for the commitment of an offence. Local governments, and other enforcement authorities, have the power to issue PINs pursuant to the State Penalties Enforcement Act 1999 (Qld) (SPER Act) and the State Penalties Enforcement Regulation 2014 (Qld) (SPER Regulation).

PINs provide an alternative enforcement mechanism to pursuing prosecution through the court system. Consequently, PINs are an attractive option where the offence is relatively straight forward and supported by clear evidence. In issuing a PIN, an authority avoids

1 Section 13(1) SPER Act.

2 Section 202 Local Government Act 2009 (Qld).

3 Section 15 SPER Act.

the costs and complexity of court proceedings, which require strict rules of evidence.

If the fine is paid, the matter is resolved, and further prosecution cannot occur for the same offence on the same facts. However, if the alleged offender wishes to challenge the offence, or put an authority ‘to proof’ on the offence’s committal, an offender can elect to have the matter heard in the Magistrates Court. If that election is made, the decision lies with the enforcing authority as to whether a proceeding is commenced by way of Complaint and Summons under the Justices Act 1886 (Qld).

When can a PIN be issued?

A PIN can be issued by an ‘authorised person’ who has reasonable belief that a person has committed an ‘infringement notice offence’.1 Who constitutes an ‘authorised person’ will depend on the offence alleged. Generally, authorised persons will be employees of the local government appointed by the local government’s chief executive officer.2

An ‘infringement notice offence’ includes a wide range of offences under the local government acts and local laws. Schedule 1 of the SPER Regulation identifies the infringement notice offences and the individuals authorised to serve a corresponding infringement notice for such offences.

What is required to issue PINs?

A PIN must be in the form approved by the administering authority and include specific details. These include the alleged offender’s identifying information, a clear description of the offence (which could include the legislative offence provision and the nature, time and place of the offence), the fine amount and payment instructions.3

A recipient of a PIN has 28 days to pay the fine or contest the offence in court. If the fine meets a specific threshold, the offender may request instalment payments. The notice must also indicate that it can be withdrawn by the issuer at any time before payment and warn that non-payment may lead to enforcement action, including involvement by SPER and additional fees.

Local governments should note that the penalty is capped under the SPER Regulation and is typically much lower than the maximum penalty for the offence.

Benefits

h Relatively simple, fast and cost-effective;

h Alternative to Court proceedings and associated burdensome evidentiary requirements; and

h Achieves specific and general deterrence.

Limitations

h Inability to require rectification works or other action to compel compliance;

h Accused can challenge the PIN by seeking the matter be determined by a Magistrates Court;

h Fine amount limited by legislation, collected by SPER and may not ultimately be seen by the enforcing authority.

Key Takeaways

Councils have a range of enforcement options, with PINs being an effective choice for straightforward offences. PINs allow councils to impose fines without court proceedings, offering a more efficient resolution. Once a fine is paid, the matter is resolved, but if contested, it can be taken to court. PINs must be issued by authorised personnel and include essential details such as the offence, fine, and payment instructions. The penalty is capped and generally lower than a court-imposed fine, making it a practical enforcement tool.

Troy Webb, Partner

Governance,

Planning and Environment

T +61 7 3233 8928

E twebb@mccullough.com.au and

Alyssa

Kearney, Lawyer Planning and Environment

T +61 7 3233 8598

E alyssakearney@mccullough.com.au

Key lessons in contract administration and insurance covenants Rusbridge v Lake Fox Limited [2024] QSC 279

The recent Supreme Court decision in Rusbridge v Lake Fox Limited [2024] QSC 279 highlights the importance for local governments to carefully draft risk and insurance provisions in supplier contracts and ensure proper contract administration by insisting upon the provision of comprehensive evidence of insurance placement of the required policies.

In this case, the principal contractor was Orica Australia Pty Ltd (Orica). Orica engaged Lake Fox Ltd (Lake Fox) to provide transport services. This required Lake Fox to attend at the premises to perform the work under contract. While a worker employed by Lake Fox was working at Orica’s premises, he suffered an injury and sued Orica.

Orica defended the proceeding against it, but ultimately paid over $228,000 in damages to the injured worker. After payment of the claim, Orica commenced a claim against Lake Fox to recover the damages paid. However, Orica did not rely on an indemnity provision in the agreement to pursue Lake Fox, it relied upon an insurance covenant.

In the contract between them, Lake Fox agreed to take out liability insurance covering both itself and Orica ‘as an additional insured or a person to whom the benefit extends for its respective rights and interests’. Based on that provision,

Orica argued that Lake Fox was required to take out liability insurance for its benefit with respect to the injured worker’s claim.

Lake Fox had a liability policy as required by the contract. However, on reviewing the detail of that policy, the court found that it did not name Orica as an additional insured, nor did it otherwise provide cover to Orica. Like many liability policies, the Lake Fox policy had an extended definition of ‘insured’, but that definition did not extend cover to Orica as required or cover Orica for its negligence.

The result of Lake Fox’s failure to take out insurance cover for Orica was that Orica was entitled to judgment against Lake Fox for the full extent of the claim, including costs.

Key takeaways

There are a number of lessons that can be taken from this decision which should be heeded by both local governments and their contracting partners.

1. Local governments can benefit from insurance policies arranged by their contracting parties, so long as those policies are properly arranged and extend cover to third parties. However, this potential benefit needs to be tempered by the understanding that not all third parties will hold or be able to obtain insurance with insurers willing to take on the substantial extra risk arising from providing cover to local governments. The market for such cover is finite and can be expensive to obtain, and local governments insisting upon such covers in all circumstances could have indirect effects such as increasing the cost of services as providers look to pass on those costs.

Stephen

White, Partner Insurance and Corporate Risk

T +61 7 3233 8785

E stephenwhite@mccullough.com.au

2. In this instance, although Orica was successful against Lake Fox, it is likely Lake Fox had no cover available to pay for the damages awarded to Orica. Such liability would not be covered under its WorkCover policy or under its liability policy. If Lake Fox did not have the means to pay, Orica’s ‘victory’ may have been a hollow one.

3. Where local governments can and do insist upon contracting partners effecting cover for their benefit, this case is an important reminder that it is necessary to obtain and properly review the relevant insurance policy to make sure it complies with the requirements of the contract. Specifically, the definition of ‘insured’ in the policy should be carefully assessed to ensure that it extends to third parties. Not all insurers will change the policy to name the principal as an insured. Relying on ‘certificates of currency’, which are often incorrect or incomplete, does provide satisfactory assurance of proper cover.

The Human Rights Act

Half a decade on

The Human Rights Act 2019 (Qld) (the HRA) received assent and commenced 7 March 2019, with substantive provisions commencing 1 January 2020.

The intent of the HRA is now well known to protect 23 human rights, including:

1. The right to recognition and equality before the law;

2. The right to privacy; and

3. The right to freedom from cruel, inhuman, or degrading treatment.

The HRA mandates that public entities act compatibly with protected human rights, and give ‘proper consideration’ to those rights in decision-making processes. Courts expect that consideration to occur in a ‘common’ or ‘garden variety’ fashion, for all persons working in the public sector, both senior and junior (applying Castles v Secretary to the Department of Justice [2010] VSC 310 at [185] per Emerton J).

Additionally, the HRA imposed requirements on the Queensland Legislative Assembly itself, that generally, legislation to be passed must (save for exceptional circumstances) be compatible with protected human rights.

Much preparatory work was undertaken in the lead-up to the commencement of the HRA to ensure that public entities were properly prepared.

But how is it actually working in practice in the real world and how is Queensland tracking against the other ‘Charter’ jurisdictions (Victoria and the ACT) who we took guidance from in formulating the HRA?

That is something which the independent review of the HRA was mandated to consider under section 95 of the HRA. This review, chaired by Professor Susan Harris Rimmer, was required to provide its report on the review by 20 September 2024, with the Attorney-General to table a copy of the report in the Legislative Assembly within 14 sitting days after receiving the report.

As at February 2025, it is understood that the report has been tabled, and remains under consideration by the current State Government.

Pending public release of that report, some indicative guidance can be taken from the annual reports which the Queensland Human Rights Commission (QHRC) issue – including most recently its Annual report on the operation of Queensland’s Human Rights Act 2019 - 2023-24

At a high level, QHRC concluded that there has been incorporation of consideration of human rights into many of strategies, processes and procedures, with the development of training and guidelines for staff to assist their service delivery, and mandatory processes for the consideration of human rights in policy development. However, the Commission considered that progress towards a general human rights culture was somewhat. Resourcing appeared to be a key limiter.

Key takeaways

Certainly, from our perspective, and a general consideration of recent jurisprudence, there has been a strong uptake and willingness to comply with the HRA and its intent. However, the precise nuances of its application in a Queensland specific context will sensibly continue to evolve.

Michael Lucey, Partner Litigation and Dispute Resolution Group

T +61 7 3233 8934

E mlucey@mccullough.com.au

Bernard Dwyer, Lawyer

Employment Relations and Safety

T +61 7 3233 8533

E bdwyer@mccullough.com.au

Unpacking the Local Government Act

Authorised persons and private property –other entry powers

In the previous edition of Unpacking the Local Government Act, we looked at the powers of an authorised person to enter private property with consent. In this edition, we consider two lesser-known ways an authorised person can enter without the occupier’s consent.

Entering under an application, permit or notice

Section 132 of the Local Government Act 2009 (Qld) (Act) allows an authorised person to enter a property to help process an application made under a local government act, to inspect a record kept for budget accommodation, to find out whether the conditions of a permit or notice have been complied with, or to inspect work that is the subject of, or carried out under, a notice.

The intent of the section is to allow authorised persons to gather information to assess applications or permits, or to assess compliance with an issued permit or notice. The application, permit or notice can be issued under any ‘local government act’, which is broadly defined in schedule 4 of the Act to mean a law under which a local government performs a local government’s responsibilities, including for example a local law, the Building Act 1975 (Qld), the Planning Act 2016 (Qld), the Plumbing and Drainage Act 2018 (Qld) or the Water Supply (Safety and Reliability) Act 2008 (Qld) among others.

Entry can be made under section 132 at any ‘reasonable time’ during the day, or at night under certain conditions. Upon entry, the authorised person must inform any occupier of the property of the reason for entering the property and that

the authorised person is allowed under the Act to enter the property without the permission of the occupier. The authorised person may enter a home on the property only if accompanied by the occupier.

The power of this section comes from the wide range of circumstances in which it may be used. Given how broadly ‘application’, ‘permit’ and ‘notice’ are defined in the section, and how wide the definition of ‘local government act’ is, section 132 may be relevant more often than first thought. For example, the section may be useful for:

• gathering information to assist in assessing a development application;

• checking compliance with conditions of a local law permit;

• inspecting to see if plumbing work has been completed satisfactorily; or

• checking a property complies with the requirements of a dangerous dog declaration.

Entering property under an approved inspection program

Section 133 of the Act allows an authorised person to enter a property without the permission of the occupier at any reasonable time of the day or night under an ‘approved inspection program’. An approved inspection program is a program approved by a council, under which an authorised

person may enter and inspect properties in the local government area to ensure the local government acts are being complied with.

A local government must give, or make a reasonable attempt to give, notice to occupiers a reasonable time before entering the property. Typically, that would be done by letterbox flyer along with public notices or advertisements letting residents know that the inspection program is occurring.

An authorised person must inform the occupier of any property of the reason for entering and that they are authorised to do so under the Act without the permission of the occupier, as soon as they enter the property. This section cannot be used to enter homes on properties.

Section 133 is useful if council wants to undertake a wide ranging, general compliance inspection program. A typical example would be an inspection program checking pool fences (although section 134A of the Act deals specifically with entry to check regulated pools). This section is not appropriate for a specific, targeted inspection of a single property. The inspection program must be approved by council pursuant to the rules set out in section 134 of the Act.

Key takeaways

Sections 132 and 133 offer two alternatives to the more commonly used entry powers for authorised persons. Have a look at both sections and consider whether they may be appropriate for a problem your local government is grappling with.

Note – both sections, and the supporting sections, can be accessed here - Local Government Act 2009 - Queensland Legislation - Queensland Government

Troy Webb, Partner Governance, Planning and Environment

T +61 7 3233 8928

E twebb@mccullough.com.au

Patrick O’Brien, Senior Associate Governance, Planning and Environment

T +61 7 3233 8529

E pobrien@mccullough.com.au

Council enforcement notice upheld by Court

Success tips from Cordwell Resources Pty Ltd v Noosa Council [2024] QPEC 51

The Planning and Environment Court has upheld an enforcement notice issued by Noosa Council in its decision on a recent appeal commenced by the notice recipient in Maroochydore (Cordwell Resources Pty Ltd v Noosa Council [2024] QPEC 51).

Background

Council issued an enforcement notice to the operator of Kin Kin Quarry, Cordwell Resources, in relation to the construction of a fixed screening plant at the site. Council issued the notice on the basis that the plant, in particular its location and features, was in breach of the operator’s development approval and, therefore, a development offence had been committed.

The operator appealed Council’s enforcement notice by way of a proceeding in the Planning and Environment Court. Over the course of a four-day hearing, his Honour Judge Everson heard from Council and the operator’s legal teams and expert witnesses in relation to matters of structural engineering and operations, noise, dust and traffic amenity and town planning.

Decision

At the conclusion of the hearing, his Honour determined that Council had validly issued the enforcement notice. In reaching his conclusion, his Honour accepted the evidence provided by the Council’s structural engineer and quarry operations experts which identified that the plant was a ‘fixed plant’ and its construction did not align with the operator’s approved management plan. It was determined that the plant’s current location had town planning consequences and was a material departure from the basis on which the development approval was given.

His Honour made final orders as proposed by Council which issued a revised enforcement notice to the operator. The revised notice was in substantially the same terms as Council’s original notice, save for the amendment of the time for compliance and the inclusion of an alternative rectification option. Ultimately, the notice requires the operator to either remove the fixed plant, move it to the approved area or regularise it in accordance with planning legislation.

“ Expert witnesses in relation to matters of structural engineering and operations, noise, dust and traffic amenity and town planning”

Key takeaways

Given the community interest in the matter and Council’s history with the operator, Council involved its legal team from the commencement of its initial investigations into the subject plant. This allowed Council to make well informed, calculated and strategic decisions regarding the most effective enforcement response.

Tips from the proceeding include:

1. Engage legal representatives early in the enforcement process for complex or high-interest matters (prior to the issuance of statutory notices, PINs, commencing proceedings etc.);

2. Conduct multiple site inspections and gather evidence prior to taking the first enforcement step;

3. Retain quality expert advice to inform the strength of Council’s evidence; and

4. If requiring the removal of unlawful building work, include an alternative option to allow the recipient to apply to regularise the work if appropriate.

Troy Webb, Partner Governance, Planning and Environment

T +61 7 3233 8928

E twebb@mccullough.com.au

Yes in Faith’s Backyard

Unlocking land for affordable housing

Yes in Faith’s Backyard reforms

In December 2024, the Queensland Government introduced the Yes in Faith’s Backyard (YIFBY) legislative reforms, as a further measure to help address the state’s housing crisis. The changes aim to unlock underutilised land owned by faithbased and charitable organisations for affordable housing. While this presents new opportunities, it also raises important challenges for local governments tasked with managing growth and community expectations.

What are the YIFBY changes?

The Planning Amendment Regulation (No. 2) 2024 (Qld) amends the Planning Regulation 2017 (Qld) to open the Ministerial Infrastructure Designation (MID) pathway to social and/or affordable housing on land owned, managed or controlled by a registered charity carrying out community care centre, place of worship or residential care facility.

In particular, the reforms:

1. Expand the ‘community facilities zone’ purposes to include residential uses if all dwellings (other than caretaker’s accommodation) are an ‘affordable housing component’ (meeting the criteria at section 43C of the Planning Regulation 2017 (Qld)) on land that is either:

a. associated with a community care centre, place of worship or residential care facility; or

b. owned, controlled or managed by an entity that carries out such community activity.

2. Expand the MID eligibility for social or affordable housing infrastructure to include charities registered with the Australian Charities and Not-for-profits Commission (ACNC) (where previously only registered providers were eligible), allowing additional entities to access the MID pathway; and

3. Allow existing dwellings to be repurposed as housing without a Material Change of Use (MCU), where the premises are located in a community facilities zone, only minor building works (or no building works) are involved and there are no prescribed overlays applying.

Challenges for Local Governments

While these changes aim to unlock underutilised land and accelerate housing supply, these reforms (as for other infrastructure receiving MID designation) present challenges for local governments in the:

Reduced control: The MID process limits Councils’ ability to assess proposed development against planning schemes, potentially undermining communitydriven planning outcomes.

Infrastructure and service pressure: Rapid development may strain local infrastructure, such as transport, utilities, and community services, without additional funding mechanisms to support upgrades.

Limited community consultation: Fast-tracked approvals could reduce opportunities for meaningful community engagement, leading to local opposition if residents feel their voices are being sidelined.

Risk to planning integrity: Allowing developments outside normal planning frameworks may result in housing projects that are poorly integrated with existing urban environments, lacking in sustainability, or inconsistent with long-term growth strategies.

Emile McPhee, Special Counsel

Real Estate

T +61 7 3233 8761

E emcphee@mccullough.com.au

Rachel Jones, Special Counsel

Planning and Environment

T +61 7 3233 8776

E rjones@mccullough.com.au

Team spotlight

Emile McPhee Special Counsel

Real Estate and joint lead of Community

Housing

T: + 61 7 3233 8761

E: emcphee@mccullough.com.au

Emile is a Special Counsel at McCullough Robertson, bringing expertise across banking, finance, and property law. With a strong focus on affordable housing, property finance, and retirement living, he advises community housing providers (CHPs), lenders, and borrowers, on complex funding structures, acquisitions, and leasing arrangements. His dual expertise in finance and property allows him to offer a comprehensive approach to housing sector transactions, balancing commercial drivers with regulatory requirements.

As joint lead of McCullough Robertson's Community Housing group, Emile plays a key role in supporting the legal needs of the community housing sector. The Community Housing group is a multidisciplinary team advising CHPs, developers, and government bodies on projects aimed at addressing the housing crisis. Their work

covers acquisitions and developments, State and Federal funding initiatives, project and group structuring, construction and planning. The team advises on a variety of projects, including buildto-rent, specialist disability accommodation, land lease communities and small to large scale residential projects.

Beyond his legal practice, Emile is committed to the sector’s growth, serving on the board of Jacaranda Housing and actively contributing to industry bodies. His involvement in both advisory and governance roles reinforces McR’s reputation as a trusted legal partner in the community housing space.

With over two decades of sector experience, Emile and the Community Housing group continue to provide strategic legal solutions that drive sustainable and impactful housing projects.

Meet our team

McCullough Robertson has acted for local governments across Queensland for over 30 years. Our dedicated Local Government Industry Group are specialists in fields of law relevant to local government and ensure that the advice given aligns with, and is cognisant of, the industry and its framework.

For further information, please contact one of our team members: