Posted on August 15, 2016 by Sue Puckeridge
Local Council caretaker period – business as usual (almost)
For those Councils in NSW which were not amalgamated on 12 May 2016, Council elections will take place on Saturday 10 September 2016. As a result, the 4 week caretaker period commenced on Friday 12 August 2016. There is a common misconception that during the caretaker period, a Council is restricted from entering into any contract or making any material decisions. This is not the case.
While clause 393B of the Local Government (General) Regulation 2005 (‘Regulation‘) limits the exercise of certain functions by a Council, General Manager or other delegate during the caretaker period, the restrictions are limited and aimed at preventing a Council from making major decisions which might restrict the actions of an incoming Council.
The limitations restrict a Council from:
- entering a contract or undertaking involving the expenditure or receipt by the Council of an amount equal to or greater than $150,000 or 1% of the Council’s revenue from rates in the preceding financial year (whichever is the larger),
- determining a development application to which at least 25 persons have objected under section 79 (5) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) (defined as a ‘controversial development application’), except where:
- a failure to make such a determination would give rise to a deemed refusal under section 82 of the EPA Act, or
- such a deemed refusal arose before the commencement of the caretaker period,
- appointing or reappointing a Council’s General Manager (or removing the General Manager), unless the appointment is temporary or Council is filling a vacancy in the circumstances prescribed by section 336 (1) of the Local Government Act 1993.
All of these functions can be exercised in a particular case with the consent of the Minister (cl 393B(2) of the Regulation) and do not apply to a Joint Regional Planning Panel or the Central Sydney Planning Committee.
Clearly, there are many contracts which are for amounts less than $150,000.00 or 1% of Council’s rates revenue from the preceding year. These can still be entered into during the caretaker period. Negotiations which may be taking place for contracts greater than $150,000.00 or 1% of Council’s rates revenue can still proceed, although the contract could not be finalised and executed.
Similarly, the only restriction on the exercise of Council’s regulatory power is in respect of a controversial development application. Most development applications do not attract 25 or more objections and could therefore be determined during this period.
All other powers can still be exercised under delegation, provided the General Manager’s delegation is not subject to any specific restriction in relation to the caretaker period.
Although it is important to be mindful of the caretaker provisions, they should not be interpreted to mean that a Council is prevented from making any decision or incurring any expenditure. The day to day operations of the Council can still continue.
For further information regarding the Council’s powers during the caretaker period, please contact Sue Puckeridge on 02 8235 9702.