Hepburn Shire
Chief Executive Officer,
PO Box 21, Daylesford 3460
Dear CEO, Mayor and Councillors,
Re : Draft “GENERAL LOCAL LAW NO. 2 OF 2019 – COMMUNITY AMENITY
AND MUNICIPAL PLACES
I write in relation to my concerns with the draft outcomes of
the review of Local Laws #2.
As a local person I strongly support the issues raised by other
members of the Hepburn Shire community, especially those outlined
so eloquently by Dr Patrick Jones and Dr Jeff Stewart. I believe
that outcomes from the review of the 2009 Local Law No 2 generally
do not reflect the expectations of the Hepburn Community. The
Hepburn Shire has an eclectic demographic with many in the
community putting forward new solutions to address sustainability
issues and the role we each play as part of a civil society. I
commend the thinkers, the facilitators and the debaters in our
community, I listen with open ears. Our local government should
work more closer with our community to come up with modern,
innovative governance solutions to protect the welfare of
individuals, our community as a whole and the land we are blessed
to live on.
My submission focuses mostly on the adverse impacts of the
proposed laws on volunteer Committees of Management (CoM) who are
responsible for the management of Crown Land reserves of various
tenures. I am currently the Secretary of the Bullarto Public Hall
CoM and Chairperson of the Eganstown Public Cemetery Trust. Both
these entities are charged with the care of important community
assets (public places) on behalf of all Victorians.
The way community assets can be enjoyed and utilised will be
seriously impinged upon should the draft new laws be enacted and
enforced. Below I discuss changes to specific sections of the new
laws that I believe will adversely impact or render it increasingly
difficult for the community to use these beautiful and much-loved
public spaces.
As explained on the Shire website the new Local Law 2 uses an
expanded definition for public place, the new definition has the
same meaning as the Summary Offences Act. This definition relates
to all public land, not just Council land and increases Council’s
authority to ensure consistency across the Shire
https://www.hepburn.vic.gov.au/draft-general-local-law-no-2.
The expanded definition of “Public Place” includes land tenures
that the Shire has never been legislated to manage. For example, in
the Hepburn Shire the Wombat State Forest is public land managed by
DELWP under the Forest Act 1958. It could be argued that the State
Forest will now fall within the new expanded definition of public
place and therefore theoretically under Hepburn Shire jurisdiction
for enforcement of Local Law 2. Currently people can camp wherever
they like in State Forests, in fact Wombat State Forest is one of
the most visited areas for dispersed camping in Victoria. Local Law
#2 does not allow camping in public places. This example
demonstrates that the expanded definition “Public Places” is
clearly unworkable, and this blanket approach which includes all
public land opens up a plethora of disputes around land tenure and
management responsibilities. In adopting the expanded definition of
public place how did the Shire ensure that they comply with the
requirement that Local Laws shall not overlap, duplicate, conflict
with or be inconsistent with existing legislative provisions?
DEFINITION
2019 Public place has the same meaning as the Summary Offences
Act 1966
"public place" includes and applies to—
(a) any public highway
road street bridge footway footpath court alley passage or
thoroughfare notwithstanding that it may be formed on private
property;
(b) any park garden
reserve or other place of public recreation or resort;
(c) any railway
station platform or carriage;
(d) any wharf pier or
jetty;
(e) any passenger ship
or boat plying for hire;
(f) any public vehicle
plying for hire;
(g) any church or
chapel open to the public or any other building where divine
service is being publicly held;
(h) any Government
school or the land or premises in connexion therewith;
(i) any public hall theatre
or room while members of the public are in attendance at, or are
assembling for or departing from, a public entertainment or meeting
therein;
(j) any market;
(k) any auction room or mart or
place while a sale by auction is there proceeding;
(l) any licensed premises or
authorised premises within the meaning of the Liquor Control
Reform Act 1998 ;
(m) any race-course
cricket ground football ground or other such place while members of
the public are present or are permitted to have access thereto
whether with or without payment for admission;
(n) any place of
public resort;
(o) any open place to
which the public whether upon or without payment for admittance
have or are permitted to have access; or
(p) any public place
within the meaning of the words "public place" whether by virtue of
this Act or otherwise
2009 “Public place” means any land owned, leased, vested in,
managed or occupied by Council and includes: (a) roads and road
reserves; (b) reserves for recreational purposes; and (c) any place
prescribed to be a public place.
The Shire website states; Minor amendments have been made to a
number of clauses in the old Local Law to ensure the new Local Law
is consistent with current legislation
https://www.hepburn.vic.gov.au/draft-general-local-law-no-2.
Unfortunately the Shire fails to explain how the changes align with
legislation. As I explain throughout this letter some of the minor
amendments that have not been explained by the Shire could in fact
bring about profound changes to how public places can be used by
the local community.
The 2009 Local Law put sensible restrictions on when a fire
could be lit, the new Local Law (2.1) puts a blanket ban on all
fires in public places unless in a barbeque and does not even allow
for application for a permit to light a fire.
2.1 Behaviour in Municipal places or public place:
A person must not in a municipal place or public place:
(e) light a fire unless it is in a barbeque;
2009 Incinerators and Open Fires 4.1 A person must not light or
allow to be lit or remain alight any incinerator or open fire on
such days or at such times as are declared by the Council. Penalty:
2 penalty units
Committees of Management will not be able to burn vegetation
waste as part of fire preparation on the crown land reserves that
they manage. Instead this vegetation will have to be transported to
a green waste centre at considerable cost and effort. Recent
maintenance works at the Eganstown Public Cemetery has left a huge
pile of woody weeds that were cleared and heaped up by a local
contractor to be burnt when the pile had dried sufficiently. This
kind of works would not be allowed under the new Local Law.
Standing around a warm fire on a cold day is an activity which
is deeply embedded in Australian cultural gatherings both
indigenous and anglo. Under the changes to the Local Laws there
will be no more standing around a warm fire on a cold day at the
Bullarto Hall, or the local football ground or any other public
place.
There will be no more smoking ceremonies !!!!!!!!!!!!!!!!!
2.2 Damaging or interfering with roads or Council land
A person must not destroy, damage, remove, interfere with,
attach to or change in any way anything in, on or under a road,
footpath or public place.
2009 Damage to Public Places 3.4 A person must not damage,
interfere with, remove a sign from, or disfigure a public place.
Penalty: 5 Penalty units
Whilst there are only very small changes to the wording of the
Local Laws under Section 2.2 (see above box) these changes
fundamentally alter what is allowed on public places. The current
Local Law quite sensibly states that a person cannot damage,
interfere with, alter or disfigure a public place. The new Local
Law includes the statement that a person must not change in anyway
anything in, on or under a road, footpath or public place. The
added statement “must not change in anyway anything” implies that a
person cannot remove or render safe anything harmful or damaging
that they find in a public place. Public places belong to the
public, individuals should have the right to act in the public good
and remove or shift anything causing harm or damage to a public
place if it can be done safely, and this should be able to happen
without fear of retribution.
Section 2.4 (see text box below) of the new Local Law puts a
blanket ban on all motorised vehicles in public places except on
designated roadways and parking areas. In the past a permit could
be applied for to cover vehicles in public places, the new Local
Law does not allow for this.
2.4 Use of vehicles in a municipal place
A person must not ride or drive any motor car, motor cycle,
bicycle or other vehicle in any municipal place other than in an
area set aside for vehicle parking or any designated roadway or
bicycle pathway.
2009 Motorised Vehicles 3.2 Unless in accordance with a permit
or within a defined carriageway area, a person must not ride,
drive, park, leave standing or otherwise use any motorised vehicle
on any public land. Penalty: 5 Penalty units
NO MORE BULLARTO TRACTOR PULL!
2.5 Festivals, Carnivals and circuses
2.5.2 A person, must not, without a permit, hold a street party,
festival, procession, or event, in a public place.
2009 Festivals, Carnivals and Circuses 3.7 Unless in accordance
with a permit, a person must not conduct a festival, carnival,
circus, parade or other similar activity in a public place.
DEFINITION:
2019 Event means an organised recreational, cultural, commercial
or social gathering or people or set of inclusive activities
undertaken at predetermined date/s and time/s on a temporary basis.
These event activities also tend to require effective management of
potential detrimental impacts on the community and includes a
procession, festival or street party.
Section 2.5 of the new Local Law sounds much the same as the
2009 Local Law (see text box above) with the seemingly minor
addition of the term “event”. A look at the definition is required
to understand the effect of the word “event” in the new Local Laws.
The 2009 Local Laws did not have a definition for event. The
addition of this word in the Local Laws appears to be all
encompassing especially when combined with the expanded definition
of public places. I’m left utterly perplexed as to whether events
such as weddings, parties and funerals at the Bullarto Public Hall
or funerals at the Eganstown Public Cemetery will have to apply for
a permit. Will the local primary school have to apply for a permit
to run their annual Christmas concert at the Bullarto Hall? The
Local Laws sec 2.5 is either ridiculously ambiguous or ridiculously
cumbersome.
2.7 Busking
A person must not, without a permit, busk in a public place.
2009 Entertainment and Busking 9.3 Unless in accordance with a
permit, a person must not busk on a public place. Penalty: 2
Penalty units
DEFINITION:
2019 Busk/busking means to perform to the public, whether by
acting, juggling, dancing, singing, mime, statue, drawing, playing
a musical instrument or otherwise entertain passer-by, with or
without collecting money
2009 “Busk” or “Busking” means providing entertainment in a
public place, Council land or road by playing a musical instrument,
singing, conjuring, juggling, mime, mimicking, dancing, puppetry,
recitation, performance art or other theatrical or visual
activities conducted or which appear to be conducted for the
purpose of attracting money donations rather than for a set
fee.
Section 2.7 (see text box above) once again demonstrates that
whilst the wording of the Local Law stays much the same a change in
the definition greatly alters what can occur in public places. The
2009 Local Laws definition of busking includes different forms of
entertainment for the purpose of attracting money donations rather
than for a set fee. The new Local Law defines busking much more
broadly to include different forms of entertainment with or without
collecting money.
Under the 2009 Local Laws the local brass band could play at
public events such as the Bullarto Tractor Pull, under the new
Local Laws they will have to apply for a permit. Will the Bullarto
Hall Committee have to apply for a permit for the bugle player and
piper at the annual Bullarto ANZAC memorial service? Will a
grieving family have to apply for a permit to have a piper or other
musician at the burial of their loved one? Once again, the
increasingly broad-brush approach of the Local Laws is either
ridiculously ambiguous or ridiculously cumbersome and onerous.
2.11 Vehicle repair
A person must not, without a permit, dismantle, repair or carry
out maintenance on a vehicle in a public place.
2009 Vehicle Repair 11.6 Unless in accordance with a permit or
it is necessary for removal of a vehicle, a person must not
dismantle, repair or carry out maintenance on a vehicle in a public
place. Penalty: 2 Penalty units
The new Local Law Section 2.11 (see text box above) simply
removes a common sense element of the 2009 Local Law, this change
is downright silly. A person should be able to repair a vehicle if
it breaks down in a public place without having to apply for a
permit. That person should be compelled to immediately repair any
vehicle that breaks down in a public place and ensure it can be
removed as soon as practicable without delay.
2.12 Outdoor eating facilities
A person must not, without a permit, place on a road, footpath
or public place any tables and/or chairs, or any associated
equipment, for the purpose of allowing food and drink to be sold to
or consumed by any member of the public.
2009 Outdoor Eating Facilities 12.1 Unless in accordance with a
permit, a person must not establish or allow the establishment of
an outdoor eating facility on a road. Penalty: 2 Penalty units
Section 2.12 (see text box above) of the Local Laws again
demonstrates the unworkable nature of the expanded definition of
public place and the silly all-encompassing over use of this term.
The 2009 Local Laws sensibly prevented people from setting up
tables and chairs on roadways without a permit. The new Local Law
prevents people from setting up tables and or chairs in any public
place without a permit. Does this mean visitors to the area will
have to apply for a permit to put up table and chairs for a picnic
in a public place? Will locals have to apply for a permit to put up
a sun chair if they take their dinner to Jubilee Lake on a hot
night?
It appears to me that Hepburn Shire has not properly and fully
addressed how they make and revise their Local Laws. In researching
my response, I came across the “Guidelines for Local Laws Manual”
The manual is a step-by-step resource that aims to help councils
achieve better practice Local Law making from the preparation phase
right through to the revision and amendment of Local Laws”.
https://www.localgovernment.vic.gov.au/__data/assets/pdf_file/0028/48718/Local_Laws_Manual.pdf
(accessed 12/12/2019)
I found the following sections of Guidelines for Local Laws
Manual particularly pertinent to the issues being raised by many in
our community.
Local Laws are made by Councils in response to a perceived
problem. The Local Law is intended to mitigate or eliminate this
problem. As outlined in the Victorian Guide to Regulation, unless
the source, nature and scale of the problem are fully understood,
the proposed regulatory solution is likely to be inadequate,
inappropriate and/or inefficient. (Guidelines for Local Laws Manual
p.21)
Council should have a clear idea of how it proposes to measure
the success of individual provisions of the Local Law. The ongoing
need for and efficacy of a Local Law needs to be tracked. The
problem that a Local Law is intended to address may not remain
static over time. It may increase, in which case the Local Law
provisions may prove to be inadequate. Alternatively, the problem
may decline of its own accord, in which case the Local Law will no
longer be necessary. Accordingly, the resources devoted to it such
as inspections or audits, or the issuing of permits may also become
unnecessary. (Guidelines for Local Laws Manual p.23)
The Guidelines for Local Laws Manual introduces the Local Law
Community Impact Statement (LLCIS). The LLCIS seeks to improve
consistency, clarity and transparency for those affected by Local
Laws, including businesses and community members, while serving as
a tool for Councils to use throughout the Local Law-making
process.
I believe there would be better more realistic outcomes if
Hepburn Shire were to openly and transparently adopt a Local Law
Community Impact Statement process as outlined in the Local
Government Guidelines for Local Laws Manual.
Thank you for the opportunity to provide this submission to the
review process for Local Laws #2. I would like to have time to
speak on this submission at the Special Meeting of Council to be
held in the Daylesford Senior Citizens Rooms, rear of 76 Vincent
Street, Daylesford on Monday, 16 December 2019,
at 6pm.
Yours Sincerely
Ms Loris Duclos
225 Whitegum Drive, Wheatsheaf 3461
[email protected]
mob. 0427874552
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