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Local Government Compliance and Enforcement Regulation Review – Draft Report (22 May 2014)
The City of Ryde provides the following submission with regard to the Local Government Compliance
and Enforcement Draft Report.
Prior to addressing the specific recommendations contained in the Draft Report, the City of Ryde
makes the following comments.
In principle, the City of Ryde supports efforts to clarify regulatory responsibilities and to reduce
duplication. Council also supports efforts to ensure appropriate cost recovery options are available
to regulators and would welcome stronger and more effective partnerships with State regulatory
bodies.
Given the number of other significant reviews currently being undertaken it is strongly
recommended that further consultation with Councils and stakeholders be undertaken prior to
enacting any of these recommendations. In particular, it would be appropriate for those changes
relating to Development Assessment, Planning, and Building regulation to be subject to further
consideration in light of the review of the Environmental Planning and Assessment Act 1979 and any
proposed changes that arise from that review.
Supported Recommendations
The City of Ryde generally supports recommendations for a stronger partnership with the
Environmental Protection Authority; revisions to the NSW Guide to Better Regulation; providing a
stronger statutory basis for the application of better regulatory principles; targeted facilitation of
shared services; amendments to the Local Government Act 1993 to provide a modern, consolidated
and effective suite of compliance and enforcement powers; greater consideration of Councils’
responsibilities when State agencies devolve regulatory activities to local government; greater use of
online services for Annual Fire Safety Certificates and Animal Registration.
The City of Ryde strongly supports efforts to enhance Councils’ ability to recover their efficient
regulatory costs. However this is a subset of a wider Local Government funding issue, and it is our
recommendation that a holistic review of Local Government funding as be undertaken. Such a
review should consider the removal of statutory fee caps where no regard has been given to each
Council’s true cost. It should also consider the cost of litigation to Local Government regulators.
Currently, the cost to Councils to defend or pursue regulatory activities in court is high and recovery
options are limited. Some consideration should be given to measures that would ensure regulatory
bodies are able to fully recover legal costs associated with effectively undertaking their regulatory
activities.
The City of Ryde would also strongly support the creation of a stronger and fully resourced State
Building Authority with clear powers and adequate resources to ensure Private Certifiers are
effectively and ethically undertaking their duties. Further to this, the City of Ryde believes more
effective legislative and statutory deterrents are required to ensure illegal construction works can be
appropriately dealt with by the courts; this should be combined with more appropriate measures to
ensure full legal costs can be recovered by regulators as noted above.
Recommendations Supported in Principle with reservations
While the City of Ryde does not object to state efforts to collate resources and documents
promoting best practice it is noted that a number of recommendations relate to regulatory areas
where the City of Ryde already performs well. As such the provision of guidance documents would
be of little benefit to Council. Our Enforcement Policy, complaint review processes, Food shop
inspection program, and Boarding House regulation program are all functioning efficiently and are
recognised as best practice. The City of Ryde’s Swimming Pool regulation program is also well
developed and Council’s new regulatory responsibilities have been efficiently operationalized.
The City of Ryde acknowledges the success of the Food Regulation Partnership; however, given the
varying complexities of different regulatory areas and other State-Local relationships, particularly in
the development and planning sectors, it is unclear whether the funding or the will exists at the
State level to enact similar partnerships in other areas. More specifically, the City of Ryde questions
the Department of Planning and Environment’s capacity and willingness to engage in such a
partnership. Planning legislation and the planning sector is substantially different to that of the food
services sector and subsequently a different type of partnership may be required. The Department
of Planning and Infrastructure repeatedly sought to undertake a more paternal role, rather than a
partnering role, seeking to circumvent and over-rule Councils through the Part 3A process, Urban
Activation Precincts and Pre-gateway review process. However, should the review of the
Environmental Planning and Assessment Act bring about reforms that recognise and support
Councils’ role in the planning system it could set the foundation for a new, more efficient and
effective partnership.
The City of Ryde has no objection to the development of standard waste management requirements
for exempt and complying developments provided Councils are consulted during the drafting
process to ensure the conditions are consistent with the operation of Council’s waste services and
include adequate access and storage requirements.
The City of Ryde supports the limited use of Standard Development Conditions; Standard Conditions
should not apply to areas subject to flooding, bushfire, threatened ecological communities, slope
instability, or heritage protection. Flexibility must be retained to allow additional conditions tailored
to local conditions and the protection of local amenity requirements.
Recommendations Not Supported
The City of Ryde has strenuous objections to a number of recommendations that will reduce
Councils ability to protect the safety and amenity of residents, reduce the flexibility required to deal
with local conditions, and fetter Councils ability to pursue the strategic direction agreed to by our
community.
In the City of Ryde’s view, the introduction of a Regulator’s Compliance Code is unnecessary and
contrary to efforts to reduce duplication of regulatory policy. Noting that the voluntary UK Code is
very broad and is also non-statutory, adopting a similar code will add little to no significant value to
the regulatory framework provided regulator’s responsibilities are clearly defined in relevant acts
and regulations as per a number of the other recommendations.
The City of Ryde does not support the introduction of more standard exemptions and minimum
requirements for Section 68 approvals. Activities such as Footpath Dining and Skip Bin use have the
potential for significant amenity and safety impacts as well as the potential to cause significant
damage to public property. As such, Councils must retain the right to approve and regulate these
activities. Strong legislative support is required to allow Councils to undertake this regulation
effectively and removing them from Section 68 with no alternative legislative mechanism for
regulation is not supported. Local Approval Policies may also have a significant role in these areas,
and for the same reasons, their abolition is not supported.
The City of Ryde does not support the recommendation, in its current form, relating to the use of
alternative and internal review mechanisms. Instead, Council would welcome consideration of
further improvements to external review mechanisms. As noted above, The City of Ryde already
possesses a fully staffed and well-developed internal complaints and review procedure. This
procedure is recognised as Best Practice by the NSW Ombudsman. In addition Council is subject to a
number of state bodies with the power to review regulatory activities such as the ombudsman, the
NSW Division of Local Government, the ICAC, the Dept. of Fair Trading, The Building Professionals
Board, the Department of Planning, and the NSW Privacy Commissioner. In The City of Ryde's view
many of these external bodies are resource-poor and their varied and occasionally overlapping roles
are a source of confusion for the community; the resulting in-effectiveness undermines Councils’
regulatory authority and contributes to the appearance of over-wrought and ineffective
bureaucracy. It is the City of Ryde’s recommendation that Councils with efficient internal review
mechanisms be supported by a review seeking to adequately resource, streamline, consolidate, and
simplify the existing external review mechanisms.
With respect to the review of Parking Infringement Notices, in our view, Councils adopting internal
review panels that comply with both the SDRO’s and the Attorney General’s Guidelines should not
be prevented from utilising the SDROs Premium Service package.
The City of Ryde strongly objects to recommendation that conditions of consent above those
standards offered in the BCA must be justified by a cost-benefit analysis and approved by an
independent body under a ‘gateway model’. Councils require the flexibility to impose increased
construction standards to ensure local conditions and community expectations are addressed.
Moreover, Councils’ role in protecting local amenity should not be fettered by purely commercial
imperatives. It is also noted that the Department of Planning’s ‘gateway process’ exemplifies the un-
consultative approach that currently undermines Council’s planning authority and prevents the
development of a more efficient and productive state-local partnership with respect to strategic
land-use planning. Such a model should not be the model for other regulatory areas.
The City of Ryde also has strong objections to the recommendation that Certifiers be allowed to
issue Occupation Certificates if Council does not respond to notification of a breach within a
specified time period. The proposed process lacks the required level of probity to ensure
developers, builders and certifiers are subject to appropriate checks and regulation. Default
concurrence is entirely inappropriate in an area where the risk of substantial impact to amenity and
safety is so prevalent. Other recommendations proposed recognise the issue of poor certifier
performance and seek to address it though greater visibility and more efficient and centralised
oversight. This recommendation would entirely undermine those efforts by vastly increasing the
potential damage poor performing certifiers could cause. In Council’s view the area of Private
Certification requires significant review. There is an inherent conflict of interest, which could clearly
lead to undesirable conduct under the current model, when private certifiers are engaged by the
people they are tasked with regulating. The current framework lacks the probity, transparency, and
independence to guarantee effective and efficient regulation.
Please find attached a table detailing Council’s position with respect to the recommendations as
outlined in the Draft Report’s Executive Summary.
Thank you for your consideration.
Dominic Johnson,
Group Manager Environment & Planning
25 June 2014
Attachment – Table of responses to draft recommendations.
A new partnership between State Government and Local Government.
1 Supported in principal but more detail required
Council is particularly supportive of clarifying regulatory roles and responsibilities
and enhancing Councils’ ability to recover their efficient costs.
Council questions the Department’s capacity and willingness to engage in such a
partnership. The Department has repeatedly sought to undertake a more paternal
role, rather than a partnering role, seeking to circumvent or over-rule Council’s
regulatory authority through UAPs and Pre-gateway reviews.
Planning legislation and the planning sector is substantially different to that of the
food services sector and subsequently a more substantially different type of
partnership may be required.
The development of a new partnership needs to be linked to the review
Environmental Planning and Assessment Act and the associated planning reforms.
Should the reforms respect Council’s role in the planning system and more clearly
define the Department’s role as one of partnership rather than duplication, a more
productive and efficient partnership would be possible.
2 Supported
Council would welcome a stronger partnership with NSW EPA, and would suggest
also considering the implementation of regional based districts based on the NSW
Health – Public Health Unit model. This would provide manageable administrative
regions with sufficient ability to respond to local issues.
Improving the regulatory framework at the State level.
3 Supported with comment
Council is particularly supportive of more effective cost recovery mechanisms for
Local Government regulators.
Council notes that the funding issue extends beyond regulatory activity and is subset
of a wider problem in the current Local Government funding model. It is
recommended that a full review of the Local Government funding model be
undertaken with a view to enabling full cost recovery (including for effective legal
costs) for regulatory activities.
4 Supported
5 Supported
It is noted that Council maintains, and would continue to maintain, its own register
of its regulatory and other functions.
6 Not Supported in its current form
Council believes such a code is unnecessary. Regulator’s responsibilities should be
clearly defined and articulated in the relevant Acts and Regulations as per a number
of the other recommendations of this report, a further code would undo efforts to
simplify regulatory policy and reduce duplication.
Council supports the inclusion of Local Government Regulators in the former Better
Regulation Office’s Regulator’s Group or Network.
Council has no objection to the provision of simplified cost benefit analysis
guidance, but notes this would provide little benefit under the current framework.
Council recommends a full review of the Local Government funding model.
Council agrees with the principle of simplified policies and statutory instruments,
but notes that while some standardisation is possible, flexibility needs to be
retained to allow Councils to address any conditions unique to their local
government areas.
7 Supported with comment
Council supports a model enforcement policy to be developed in consultation with
state and local regulators. Council considers the Ryde Enforcement Policy and
Procedures to be highly effective and believes it should be promoted as a best-
practice example.
Any fee based training should be optional – to be taken up by Councils on an as-
needs basis.
8 No Objection
9 Supported with comment
Council has no objections provided the setting of fees is to be established on the
basis of full cost recovery. Historically, statutory fee setting has grossly limited
Council’s capacity to levels well below acceptable cost recovery levels. In addition,
legal costs associated with regulatory activity are also largely unrecoverable.
Guidance material would be of limited benefit under the current framework. Council
recommends a full review of the current Local Government funding model.
Enhancing Regulatory collaboration with Councils.
10 Supported with comment
This should be considered in concurrence with the wider review of the Local
Government Act.
Council supports efforts to facilitate service sharing between Councils in targeted
areas such as tender administration. However, the City of Ryde also recommends
that Councils be empowered under the Act to from, and be involved in, other
corporations or entities for the purposes of sharing staff through inter-Council
contractual arrangements.
11 Supported with comment
While Council has no objection to this recommendation Council again notes that a
full review of the Local Government funding model is required if a long-term and
sustainable funding model allowing the development of more efficient systems and
collaborative arrangements is to be achieved.
Improving the regulatory framework at the local level.
12 Not Supported in its current form
Council has no objections to removing duplication in principle and notes that Local
Government regulators should be consulted as the detail of any changes to the Act
are drafted. Council also recommends pilot schemes to test proposals and assess
the impacts to amenity and how they can be managed.
Council does not support the removal of certain “low risk” activities from the list of
activities requiring approval under Section 69 of the Act. While activities such as
busking or the use of load speakers may be considered “low risk”, they can
occasionally have significant amenity impacts and represent an extremely small
portion of Council’s regulatory activity. Council sees no significant benefit to
removing the need for these approvals as the limited savings do not justify the
potential amenity impact. Other methods such as longer approval or permit terms
could be used to reduce the burden of these activities for Councils who have a
uniquely high regulatory burden with respect to these activities.
Council has to longer duration approvals with automatic renewals provided they are
issued at the discretion of Council and available in addition to short term, one-off
approvals.
At this time Council does not support this recommendation as more detail is
required with respect to the nature of the exemptions and requirements proposed,
noting that the amenity impacts and safety implications of these activities are
significant. Similarly Council does not support the removal of LAPs. These activities
have the potential for significant amenity impacts and the potential to generate
significant public risk. Skip Bins also have the potential to create significant damage
to public land. Council recommends Local Government regulators retain the right to
approve and appropriately regulate these activities.
Council has to objection to allowing Councils to recognise s68 approvals issued by
other regulatory bodies, provided it is at Council’s discretion and that Council
retains the right to undertake cost recovery for the purposes of regulating the
approved activities with respect to local/site conditions and any associated
compliance matters.
13 Supported
14 Supported with comment.
Council agrees that alternative and internal review mechanisms should be
supported in principle. However, Council and the State Government already offer a
range of review mechanisms to businesses and the community including. Council
has a fully staffed and well-developed internal complaints and review procedure,
which is recognised by the NSW Ombudsman as Best Practice. In addition Council is
subject to a number of state bodies with the power to review regulatory activities
such as the NSW Ombudsman, the NSW Division of Local Government, the ICAC, the
Dept. of Fair Trading, The Building Professionals Board, the Department of Planning,
and the NSW Privacy Commissioner. In Council’s view many of these external bodies
are resource poor and their varied roles are confusing for the community; the
resulting in-effectiveness undermines Council’s regulatory authority and contributes
to the appearance of over-wrought and ineffective bureaucracy. It is Council’s
recommendation that these state review bodies be streamlined, simplified, and
consolidated where possible.
Improving regulatory outcomes.
15 Supported
Planning
16 Supported with comment
Appropriate standard conditions may be supported for residential development, in
particular for single dwelling and dual occupancy developments. However, Council
does not support the application of standardised conditions in areas subject to
flooding, bushfire, threatened ecological communities, slope instability, or heritage
protection.
Council also notes that while there may be some potential for a limited suite of
standard conditions, some flexibility must be retained beyond standard conditions
to allow local conditions and amenity requirements to be appropriately protected.
17 Supported
The NSW Swimming Pool Register and the NSW Boarding House Register offer
examples of how this could be achieved.
Building and Construction
18 Supported
Council strongly supports a sufficiently resourced state regulator for building trades
and private certification.
Council would welcome a more effective partnership model in which responsibilities
are clearly defined and appropriate cost recovery mechanisms are available.
19 Supported
20 Not Supported
Council strongly objects to this recommendation. Council’s role in protecting local
amenity should not be fettered by purely commercial imperatives.
Council requires the flexibility to impose increased construction standards to ensure
community expectations and local conditions such as flooding, bushfire, and
landslip, are addressed.
The Department of Planning’s current “gateway” process exemplifies the un-
consultative approach that currently undermines Council’s planning authority and
prevents the development of a more efficient and productive state-local partnership
with respect to strategic land-use planning. Such a model should not be adopted in
other regulatory areas.
21 Not Supported
Council strongly objects to this recommendation. The proposed process lacks the
required level of probity to ensure developers, builders and certifiers are subject to
appropriate checks and regulation. Default concurrence is entirely inappropriate in
an area where the risk of substantial impact to amenity and safety is so prevalent.
In Council’s view the area of Private Certification requires significant review. There is
an inherent conflict of interest, which could clearly lead to undesirable conduct,
when private certifiers are engaged in a free market environment by the people
they are tasked with regulating. The current framework lacks the probity,
transparency, and independence to guarantee effective and efficient regulation.
Other recommendations in the draft report recognise the issue of poor certifier
performance and seek to address it though greater visibility and more efficient and
centralised oversight. This recommendation would entirely undermine those efforts
by vastly increasing the potential damage poorly performing certifiers could cause.
22 No objection
Council raises no objection to this measure, but notes the community confusion
relating to certification responsibilities is such that this measure is likely to have
limited impact. Should a Building Authority be adopted, it is Council’s
recommendation that it undertake an extensive community engagement campaign
to increase awareness of certification processes.
Public health, safety and the environment
23 Supported with comment
The City of Ryde has no objection provided Councils retain the right to regulate
activities of all vendors operating in their Local Government Areas, regardless of the
vendors home Council. Councils must also retain the right to recover the costs of
regulation of all vendors operating within their jurisdiction.
24 Not supported
Council does not consider any further capping of inspections to be necessary. Under
the current system, Council already assigns shops a risk band/category, which
determines the frequency of inspection appropriately.
Council recommends that inspection frequency bands used by regulators be
published centrally by the NSW Food Authority.
25 Supported with comment
Council welcomes the review but notes key stakeholders including local government
regulators should be consulted before any procedural changes are made.
Council would also like to see current flaws in the system addressed – for example,
multiple registrations can be logged for a single business and occasionally Council is
not notified of changes to registration details. There is also a lack of clarity with
respect to regulatory responsibility for certain food-shop types such as non-licenced
manufacturers.
26 No Objection with comment
No objection in principle, noting that Council is comfortable with its progress with
respect to implementing the amendments to the Swimming Pool Act
More detail on the proposed operation of fly-in squads would be required for
Council to assess their appropriateness and possible effectiveness.
27 No Objection
28 No Objection
The City of Ryde has no objection to the development of standard waste
management requirements for exempt and complying developments provided
Councils are consulted during the drafting process to ensure the conditions are
consistent with the operation of waste services and include adequate access and
storage requirements.
Council also notes that NSROC are currently assessing the potential for a shared
services agreement on a variety of items including a Regional Waste Disposal
Tender.
Parking and road transport.
29 Not Supported
Several NSW Councils including the City of Ryde operate internal Review Panels for
review of technical matters only; provided they comply with the Attorney General’s
and the SDRO Guidelines, this should not preclude these Councils from adopting the
SDROs premium service package.
30 No objection
31 No objection
Companion animal Management.
32 No objection
33 No objection
34 No objection
35 No objection
36 Supported
Other areas
37 No Objection
Council has no objections to maximum terms of 10 years, noting most customers
prefer shorter terms of between 5-8 years in-line with the terms of the lease for
their primary establishment and so no significant benefit or saving is predicted as a
result of this change.
38 Supported with comment
While Council supports the use of basic performance data to highlight areas
requiring review or additional resources, the additional administrative cost of this
reporting needs to be recognised and incorporated into cost recovery measures.
Council also notes that the accuracy and consistency of information provided for
existing comparative performance publications relating to Local Government
activities is questionable. In some cases the definitions Council’s use to define data
sets varies undermining the veracity of the comparisons. Data sets would need to be
clearly defined and audited, and this auditing cost should be included in any cost-
benefit analysis for
39 Not supported
Council agrees that in certain instances, longer approval periods may be
appropriate; however, events need to be assessed on a case by case basis as they
vary widely in nature and impact.