Norman Waterhouse

Normans Briefly

In this issue

Welcome to the January edition of the Normans Briefly.

>   Governance - Records Management - A Critical Duty
>   Property, Infrastructure & Development - Obtaining an Exemption from the Retail and Commercial Leases Act
>   Employment - New Minimum Entitlements for the Local Government Sector
>   Environment and Planning - Judicial Review of Variation Application Dismissed
>   Environment and Planning - Record Penalty for Tree Removal

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Governance - Records Management - A Critical Duty

Records management is an important administrative activity that supports a council's core business. A good records management practice is an essential element in transparency and accountability in local government.

As we outlined in our October 2011 Briefly, there is a significant obligation on councils under the State Records Act 1997 (the Act) to keep and maintain official records in good order and condition. The objects of the Act are, amongst other things, to ensure that official records of enduring evidentiary or informational value are preserved and that members of the public, investigators, or other interested parties have ready access to official records in the custody of State Records. Subject to limited exceptions, ‘official records’ are those made or received by a council in the conduct of its business. Given this wide definition, the Act imposes a high duty on councils, their employees and elected members, to keep and maintain relevant documents.

In addition to the obligations on councils, there are also significant criminal penalties if a person, without proper authority, intentionally –

  • damages or alters an official record; or
  • disposes of an official record; or
  • removes an official record from official custody.

The maximum penalty is a $10,000 fine or imprisonment for two years.

The authority to dispose of an official record can only be conferred under the Act, which is usually so conferred by way of a determination of State Records as to when certain official records may be destroyed.

Public officers who create and use official records daily in the course of their duties must ensure that they comply with the requirements in the Act and do not, in any circumstances, alter or destroy official records without proper authority.

For employees of a council, the intentional damage or destruction of an official record of the council may lead to disciplinary action and termination.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 8210 1253 or

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Property, Infrastructure & Development - Obtaining an Exemption from the Retail and Commercial Leases Act

Many of the leases and licences a council may enter into will be subject to the Retail and Commercial Leases Act 1999 (SA) (the Act).  Often, the council as lessor, will find that the Act imposes requirements that prevent it from negotiating terms that are consistent with Council policy and/or conflict with terms negotiated in good faith with a prospective lessee. In such circumstances, it is important for Councils to be aware that an exemption from part of or the whole of the Act can be obtained.

We have been involved in numerous matters where councils have found an exemption from the Act necessary or expedient. These situations often arise where the provisions of the Act (which were drafted with commercial leasing activities in mind) have consequences unintended by parliament which can be unnecessarily obstructive in the context of community group or sporting club leases where the dynamics between a council and a lessee, and the terms of the resulting lease can be fundamentally different from commercial leasing practices.

A common example occurs where a lessee (ordinarily a community group) requests that the council undertake works or maintenance of a capital nature to their premises. A council and a lessee may agree that the lessee is to fund a proportion of the works or maintenance or is to repay a proportion of any funding the council provides.

Another example occurs with council owned facilities such as tourist parks or community centres. It is not uncommon that agreements are entered into with operators, lessees or managers involving obligations to make capital expenditure in the form of upgrades to the premises.

In both of these situations the Act will generally prevent a council, as lessor, from requiring the lessee to make or reimburse capital expenditure. Therefore in these circumstances the exemption option can be a useful tool for both parties to achieve their desired outcome.

Types of exemption

An exemption from the Act may be granted pursuant to section 77 of the Act. This section provides for two different forms of exemption.

Note that if council is seeking to exempt the minimum five year term imposed under the Act an exemption is not required.  Instead, an exclusionary certificate signed by the lessee and witnessed by its lawyer will exclude the imposition of the minimum five year term.

Ministerial exemption

The first form of exemption, pursuant to section 77(1) of the Act, is a Ministerial exemption. Under this section, the Minister (being the Minister to whom the Act has been committed, or who is otherwise vested with the administration of the Act), may grant an exemption in respect of an application by an interested person.

The Minister may exempt leases from any or all of the provisions of the Act. A Ministerial exemption may be granted in relation to a specific existing or proposed lease or any number of leases of a particular class (being leases with a common characteristic, for example leases with a common locality, common parties or a common purpose).

Additionally, the Minister may also grant an exemption from the Act in relation to specific premises or a number of premises of a particular class, as opposed exempting a lease itself.

Magistrates Court exemption

An exemption may also be obtained pursuant to section 77(2) of the Act by making an application to the Magistrates Court (Court).  The Court may grant an exemption from any or all of the provisions of the Act in relation to an existing or proposed lease, or an existing or proposed premises.

However, unlike the Minister, the Court cannot grant exemptions in relation to a number of leases or premises of a particular class.

Conditions may be imposed on the exemption

The Minister or the Court may impose conditions on the grant of the exemption that the Minister or the Court deems appropriate.

Which exemption should be used?

Where council intend to exempt (in a single application), a number of leases or a number of premises which together could be described as a class of leases or premises, then an application to the Minister is required. As mentioned, the Court cannot grant an exemption to a class of leases or premises.
Otherwise, where the application pertains to a single lease or premises, an application may be made to either the Minister or the Court.

Keep the exemptions in mind

Councils should be aware that the obligations imposed under the Act are not inflexible. We often act on behalf of councils to obtain exemptions from the Court. We have also assited a number of councils obtain Ministerial exemptions.

The exemption option is worth considering when undertaking strategic planning of council asset management practices.  An exemption of a part or the whole of the Act can provide significant advantages to council and should be considered when preparing council policies regarding leasing and licensing of council assets.

For more specific information on any of the material contained in this article please contact James McEwen on 8210 1209 or or Peter Varacalli on 8210 1215 or


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Employment - New Minimum Entitlements for the Local Government Sector

New Awards

Late last year, the South Australian Industrial Relations Commission (the Commission) introduced the Local Government Cafes, Restaurants and Snack Bar Award (the Cafes Award), Local Government (Health Services) Award (the Health Services Award) and Nurses (South Australian Local Government Sector) Award (the Nurses Award). These Awards apply to local government employees who work in connection with a café, restaurant or snack bar, as health services workers in specified capacities, or nurses, respectively.

Familiarity with the scope and application of the new Awards is essential.

Amongst the employees now regulated by the Cafes Award are those who prepare food, serve or provide customer assistance at licensed or unlicensed premises operated by a council. Carers and disability support persons working in hospitals, nursing/rest homes or residential care facilities operated by councils are now covered by the Health Services Award. Further, any nurses, midwives or enrolled nurses, who are registered or entitled to be registered under the Nurses Act 1984 (SA), engaged in such facilities are now exclusively covered by the Nurses Award.

The new Awards address the unique employment conditions relevant to employees working in the areas of hospitality and health in local government now that the two-year transitional period following the state government’s referral of its industrial powers to the Commonwealth has ceased.

The new Awards differ in many respects from the South Australian Salaried Municipal Officers Award and Nurses (SA) Award, which applied previously. Notable changes have been made to the definition and treatment of causal employees, ordinary hours, overtime, penalty rates and union rights.

Further, the scope of the Caretakers and Cleaners Award and the Health, Recreation and Fitness Award have also been altered to specifically address work undertaken by employees engaged in the local government sector.

We recommend that all senior and human resource officers become familiar with the new Awards, particularly where enterprise bargaining negotiations with employees working in the areas of hospitality and health are due to commence in 2012.

Increase to Casual Loading

The minimum casual loading for all local government employees will increase to 25% by 1 January 2014. Until then, councils need to comply with the following phasing in orders issued by the Commission:

First full pay period on or after 1 January 2012 - 22%
First full pay period on or after 1 July 2012 - 23%
First full pay period on or after 1 January 2013 - 24%

Field staff will not be affected by these increases, as the Local Government Employees Award already prescribes a minimum 25% casual loading. However, any other casual employee will be entitled to receive the applicable transitional casual loading until 2014, when 25% will become the minimum entitlement. This is unless a lesser loading is provided in an applicable enterprise agreement.

These increases bring casual employees within the local government sector in line with casuals in the Federal industrial relations system.

For more specific information on any of the material contained in this article please contact Amanda Green on 8217 1306 or

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Environment and Planning - Judicial Review of Variation Application Dismissed

Mr and Mrs Holds and Ms Sims (the plaintiffs) brought proceedings for judicial review in the Supreme Court in relation to the decision of the City of Port Adelaide Enfield (the Council) to approve a variation proposed by Ms Vnuk and Ms Matthews (the owners) to a development approval for a two storey dwelling.  The plaintiffs owned land adjoining the development site.


The Council approved a two storey dwelling with a decked balcony area at the upper level in November 2005.  After construction had begun, the plaintiffs complained about overlooking, particularly by persons using the balcony.   In 2009, after some years of dispute, and in an attempt to appease the plaintiffs, the owners lodged a further development application for “balcony rectification works and installation of balcony screening and additional screening”.  That application sought approval for additional screening of the balcony which would reduce the degree of overlooking, and for the installation of stronger structural support for the balcony to bear the weight of the additional screening.  The Council treated the application as an application to vary the original approval, and approved the variation in April 2010.

The owners then substantially carried out the works described in the variation application.  The plaintiffs were (apparently) not appeased, and in October 2010 the plaintiffs commenced the Supreme Court proceedings.

Norman Waterhouse acted for Council, with Gavin Leydon as file principal.

The plaintiffs argued that it was unreasonable for the Council to have concluded that the variation was not seriously at variance with the Council’s development plan and to have approved the variation. 


In dismissing the application for judicial review, Justice Kourakis found that approval of the variation was not seriously at variance with the development plan in force at the time that the variation application was made.

His Honour considered that even if the original approval had been seriously at variance (which he did not find to be the case), and even if the resultant development would have been seriously at variance when taken as a whole, the Council validly exercised it powers under section 39(7) of the Development Act 1993 which requires development applications to be assessed only the extent of the variation.  In this case, the extent of the variation was simply to ameliorate a negative aspect of the original approval, namely the degree of overlooking of the plaintiffs’ properties.  On no view could that be “seriously at variance”, although we note the Court did not consider a situation where, for example, a screen employed to reduce overlooking has serious negative amenity impacts of its own.

Further, His Honour held that there would be no practical benefit in quashing the approval because the owners could in any event proceed with their earlier approval.

Considerations for Variation Applications

In his reasons, His Honour provided some useful guidelines to apply when considering an application to vary a development authorisation pursuant to section 39(6) and 39(7) of the Act:

  1. The purpose of the variation power appears to be to facilitate and expedite the making of variations without exposing developers to delay whilst all of the elements of the development are reconsidered, and to the risk that a previously given authorisation will be retrospectively burdened with more onerous restrictions. The underlying policy appears to be to facilitate the approval of desirable improvements which become apparent in the course of a development.
  2. The relevant authority must decide whether the development proposed by the application is a variation of the approved development or an application for approval of a different development, although frequently the determination of the merits of the proposal will not be substantially different no matter which character the application assumes.
  3. If the application proposes to vary an approved development, the elements of the proposal not comprehended by the original approval must be identified.  Section 39(7) of the Act requires that these elements are treated as a “new application” and comprise “the extent of the variation”. They must be assessed against the applicable development plan. 
  4. It is also necessary to consider any pre-existing approvals for either a variation application or a new application because the effect of the proposal on the locality in which it will be undertaken cannot be addressed without having regard to the existing approval.

In this matter, after deciding that the Council was correct in treating the application in question as one for variation and that it was not seriously at variance with the development plan, the Court held that it would be “absurd” to require a relevant authority to refuse the variation application where it would improve the variance between the development plan applicable at the time of the variation application and the existing approval. The fact that the variation application would improve any variance (without introducing any new variances) from development plan provided strong grounds to approve the variation application.

His Honour concluded that “it was simply impossible in these circumstances to contend that the variation approval was irrational or illogical and assuming a valid extant approval, the potential to more effectively reduce the variance from the development plan was not a rational reason to refuse the application”.

The decision is a success for the Council and serves as a useful reminder as to how applications for variation applications made under Sections 39(6) and 39(7) of the Act should be treated by the relevant authority.

The plaintiffs were ordered to pay the Council’s costs, and the owners’ costs of the proceedings.

For more specific information on any of the material contained in this article please contact Jacqueline Sherpherd on 8210 1230 or

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Environment and Planning - Record Penalty for Tree Removal

In December 2011 the Environment, Resources and Development Court imposed the largest penalty yet for the unlawful removal of a significant tree.  Norman Waterhouse acted for the prosecuting Council, the City of Marion.  David Billington undertook day-to-day carriage of the matter.

Judge Costello convicted all five defendants, imposed fines of $35,000 plus victims of crime levy on each of the three individual defendants, and ordered all defendants to pay the Council’s legal costs of the prosecution, assessed against the District Court Scale rather than the far less-generous Magistrates Court Scale.  The fines will be remitted to the Council upon payment to the Court.


The first and second defendants purchased the subject land in October 2009.  The third defendant was the sole director of the second defendant.  At the time of purchasing the land a large lemon-scented gum tree stood in the centre of the property, at the rear of a dwelling on the land.

The tree was a “magnificent specimen”, a “local landmark” and of good health.  Officers of the Council gave evidence that approval to remove the tree would not have been given.

The land’s purchase price was substantially depressed on the basis that the tree could not lawfully be removed, and therefore the development potential of the land was significantly limited.

In December 2009, without seeking development approval, the owners of the land engaged the fourth defendant to remove the subject tree.  The fifth defendant was the sole director of the fourth defendant.   The exact size of the tree prior to its removal was not recorded.

After removing the tree the owners obtained development approval for construction of an additional two dwellings at the rear or the property. The land was then sold for more than $100,000 above the original purchase price.

Central to the issues in dispute at trial was whether the tree met the requisite circumference size of a “significant tree” under the Development Act 1993.  The Council called a number of witnesses in support of its case that the tree was in fact significant including an arborist who had measured the tree but not recorded his measurements.  The defendants gave evidence to the contrary.

Ultimately, the Court accepted the evidence of the Council’s witnesses, concluding beyond reasonable doubt that the circumference of the tree was in excess of two metres at one metre above natural ground level.


In determining the appropriate penalty to be imposed, the Court determined that the removal of the tree was motivated by a desire for financial gain by the owners, who profited from its removal.  While the tree lopper did not profit in the same way, the Court considered it to be essential that people who make a living from tree removals ensure the appropriate approvals are obtained before removing trees.  In essence, those people stand as the gatekeepers and protectors of significant trees and are to be held to a higher standard.

Further factors considered relevant by the Court were the defendants’ failure to plead guilty, apparent lack of contrition, personal financial circumstances, and their general lack of cooperation during the Council’s investigations.

The Court further remarked “that there is a compelling public interest in imposing a penalty in matters such as these which will serve as a general deterrence to others who may be tempted, to as it were, ‘take a chance’ that they can cut down a tree like this and get away with it.”


Councils and developers alike must realise that the imposition of significant fines is a real possibility where the unlawful removal of a “regulated” or “significant” tree is motivated by financial gain.

For more specific information on any of the material contained in this article please contact James Nicolson on 8217 1342 or

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