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.