Council Report Attachment: 1. Community Services Committee, Agenda Item 5.1, 12 December 2006

C O U N C I L R E P O R T Agenda Item 5.11

19 December 2006

PROPOSED LOCAL LAW AMENDMENT – STREET ART PERMIT PROCESS – OUTCOMES OF CONSULTATION

Committee Community Services

Presenter Cr Wilson

Purpose

1. To report on the submissions lodged in relation to the proposed Local Law Amendment (Street Art) Local Law 2006 and their consideration by the Local Law 2006 Submissions Committee to amend the Activities Local Law 1999.

Recommendation

2. That Council:

2.1. make the Activities Local Law Amendment (Street Art) Local Law 2006 ("the Local Law") to amend the Activities Local Law 1999 (“Principal Local Law”) in the form tabled and endorsed at the meeting of the Activities Local Law Amendment (Street Art) Local Law 2006 Submissions Committee on 9 October 2006 (see Attachment 1 incorporating all recommended changes) with the following further amendments:

2.1.1. the two bullet points in 4.1A be converted to sub paragraphs (a) and (b); and

2.1.2. in 4.1A(b) delete the existing words and substitute "to do so is specifically authorised by and in accordance with a planning permit issued under the Melbourne Planning Scheme";

2.2. note that under delegation:

2.2.1. notice of the making of the Local Law will be given in the Government Gazette and by public notice in accordance with section 119(3) of the Local Government Act 1989 (“the Act”);

2.2.2. a copy of the Local Law will be sent to the Minister for Local Government in accordance with section 119(4) of the Act; and

2.2.3. copies of the Local Law will be made available for inspection in accordance with section 120 of the Act as well as on the Council’s website.;

2.3. in making the Local Law, note the independent report from Allen Consulting Group Pty Ltd considers that the proposed changes to the Principal Local Law are in accordance with National Competition Policy principles and the requirements in respect to restrictions on competition in clause 2(j) of schedule 8 of the Act; and

2.4. notify in writing every person who lodged a submission in respect to the proposed Local Law, of Council’s decision and the reason for its decision as detailed in this Management Report to the Community Services Committee.

C O M M U N I T Y S E R V I C E S C O M M I T T E E R E P O R T

Agenda Item 5.1

12 December 2006

PROPOSED LOCAL LAW AMENDMENT – STREET ART PERMIT PROCESS – OUTCOMES OF CONSULTATION

Division Assets and Services

Presenter Geoff Robinson – Group Manager Engineering Services

Purpose

1. The purpose of this report is to report on the submissions lodged in relation to the proposed Local Law Amendment (Street Art) Local Law 2006 and their consideration by the Local Law 2006 Submissions Committee to amend the Activities Local Law 1999.

Recommendation from Management

2. That the Community Services Committee recommend that Council:

2.1. make the Activities Local Law Amendment (Street Art) Local Law 2006 ("the Local Law") to amend the Activities Local Law 1999 (“Principal Local Law”) in the form tabled and endorsed at the meeting of the Activities Local Law Amendment (Street Art) Local Law 2006 Submissions Committee on 9 October 2006 (see Attachment 1 incorporating all recommended changes) with the following further amendments:

2.1.1. the two bullet points in 4.1A be converted to sub paragraphs (a) and (b); and

2.1.2. in 4.1A(b) delete the existing words and substitute "to do so is specifically authorised by and in accordance with a planning permit issued under the Melbourne Planning Scheme";

2.2. note that under delegation:

2.2.1. notice of the making of the Local Law will be given in the Government Gazette and by public notice in accordance with section 119(3) of the Local Government Act 1989 (“the Act”);

2.2.2. a copy of the Local Law will be sent to the Minister for Local Government in accordance with section 119(4) of the Act; and

2.2.3. copies of the Local Law will be made available for inspection in accordance with section 120 of the Act as well as on the Council’s website.;

2.3. in making the Local Law, note the independent report from Allen Consulting Group Pty Ltd considers that the proposed changes to the Principal Local Law are in accordance with National Competition Policy principles and the requirements in respect to restrictions on competition in clause 2(j) of schedule 8 of the Act; and

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2.4. notify in writing every person who lodged a submission in respect to the proposed Local Law, of Council’s decision and the reason for its decision as detailed in this Management Report to the Community Services Committee.

Key Issues

Submissions received from the community

3. The Activities Local Law Amendment (Street Art) Local Law 2006 Submissions Committee received three submissions on the proposed Local Law. These submissions are summarised at Attachment 2. Copies of the submissions are included at Attachment 3. None of the submitters asked to speak at the Submissions Committee Meeting.

4. All three submissions are generally supportive of encouraging legitimate street art and of the proposed permit system. However, one submission is not supportive of street art in the style of ‘graffiti’.

5. One of the submissions – from the North and West Melbourne Association Inc. – sought clarification regarding the relationship between the proposed street art permit system and the existing planning permit controls applying to painting walls in heritage areas. In response to this, the Submissions Committee resolved to recommend the proposed amendment to the proposed Local Law as outlined at point 2.1 (above).

6. The submission from the North and West Melbourne Association Inc. also suggested a minor change to the wording of one of the proposed permit conditions, as follows:

“at no time must the painting, or application, maintenance, alteration or removal of street art at this site result in paint splatters or spillage or any other damage to the air, waterways or the environment or to any surrounding property, or any Council assets or property including adjoining walls, the footpath or road surface, vegetation or any nearby surfaces or assets”(amendments shown in bold).

This amendment was considered appropriate and was included in the version of the proposed Local Law referred to the submissions committee meeting and supported by the submissions committee.

Internal Consultation

7. Internal consultation was undertaken with the City of Melbourne’s Graffiti Group. In accordance with the City of Melbourne Graffiti Management Plan this Group is chaired by a senior Engineering Services officer and is comprised of representatives from relevant Council departments including Street Activity, Customer Relations and Place Management, Facilities Management, Corporate Communications, Arts & Culture, Building Services, Community Services, Parks and Recreation and four community representatives who offer a Police, resident, business/property owner and young person's perspective.

8. The feedback from internal consultation was supportive of the proposed Local Law.

National Competition Policy

9. A report on the National Competition Policy implications of the proposed Local Law amendment has been prepared (see Attachment 4). The report finds that the proposed changes to the Principal Local Law are acceptable.

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Implementation

10. If Council decides to make the Local Law as proposed, the street art permit process would be introduced early in 2007 as a six month trial. As part of the implementation of the trial, the following issues would be addressed:

10.1. refinements to the wording of street art permit conditions;

10.2. membership and Terms of Reference for the panel which determines street art permit applications;

10.3. the development of a communication plan;

10.4. in what circumstances (if any) Council and/or other public authorities may be exempted from the requirements of the street art permit process; and

10.5. how details of approved street art sites will be recorded and made available to relevant parties.

11. If the proposed Local Law is adopted, the street art permit process would be formalised in a Policy Operating Statement under the Principal Local Law and any necessary Prescriptions under the Principal Local Law (to exempt matters not intended to require a permit) would be put in place.

12. Councillors would be advised of the outcomes of the street art permit process trial through a briefing note in July 2007.

Relation to Council Policy

13. The City of Melbourne Graffiti Management Plan was endorsed by the Community and Culture Committee at its meeting on Tuesday, 15 November 2005.

14. The Plan represents a ‘zero tolerance’ approach to ‘graffiti’ which is defined as “tagging and/or stand alone stencils” (Page 2, under the heading ‘Policy’). The Plan outlines a number of actions for managing graffiti within the municipality under the themes of removal, education, prevention, and enforcement. It also outlines techniques for evaluation and monitoring and improvement opportunities.

15. The Plan distinguishes between graffiti and ‘street art’, stating:

Recent consultation has shown that many community members distinguish between tagging, which is considered undesirable, and murals or street art, which are generally valued more highly. (Page 7, under the heading ‘Diversion’)

16. Accordingly, the Plan identifies the following action:

The City of Melbourne will work with property owners, managers and occupiers, graffiti writers, Victoria Police and local communities to investigate providing legitimate avenues for murals and street art to be displayed (Page 7, under the heading ‘Diversion’).

17. The Plan specifies the following as one way of providing a legitimate avenue “for murals and street art to be displayed”:

In some circumstances where property owners have agreed that street art is acceptable to them, the process of establishing agreement between the property owner(s) and Council will be in accordance with the requirements of any Council planning permit criteria. This will address issues such as heritage concerns, formal approval of abutting property owners,

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size, content and its consistency with Council’s guidelines (page 4, under the heading ‘Removal’).

18. In most cases, the display of street art or a mural on a property does not require a planning permit under the Melbourne Planning Scheme. Therefore a new process is needed to cover street art.

19. The proposed Local Law seeks to create a process where a permit would be required under the Principal Local Law to display street art.

Finance

20. There is no direct financial cost associated with this report although there may be additional administrative costs which ultimately arise with the introduction of a permit system.

Legal

21. It is open to Council to make a local law under the Act and it is a subordinate instrument for the purposes of the Interpretation of Legislation Act 1984. The Act sets out the procedure that must be complied with for making a local law.

Sustainability

22. A comprehensive approach to graffiti management – as outlined in the City of Melbourne Graffiti Management Plan – is aimed at a reduction in graffiti tagging. This will improve the visual amenity of city buildings and infrastructure. The street art permit process – a legitimate process to encourage and regulate street art - would encourage an engaging and culturally vital city culture. Street art permits would include a condition that the application of street art must not cause any damage to the environment or to the surrounding area.

Comments

23. The proposed Local Law proposes to establish a new process to apply for a permit to display street art in, or within view from, a public place.

24. The proposed Local Law (see Attachment 1) details a new section which would be inserted in the Principal Local Law at Clause 4.1A. The proposed new section would be entitled ‘Authorisation required for street art in, or within view from, a public place’ and would state:

4.1A Unless:

(a) in accordance with a permit; or

(b) to do so is specifically authorised by and in accordance with a planning permit issued under the Melbourne Planning Scheme,

a person must not draw, paint, attach or mark any message, picture or representation by means of chalk, paint or other material (“drawing”), or allow or suffer to allow, on any part of an outside wall of a building such that the drawing is in, or within view from, a public place.

4.1B Where a drawing is on a building in breach of clause 4.1A, in addition to any other powers Council has under this Local Law, the Council may serve a Notice to Comply on the owner or occupier of the building requiring the removal of the drawing.

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4.1C If the person served with a notice under clause 4.1B fails to comply with the notice to the Council’s satisfaction, the Council can take whatever action it considers is necessary to bring the building into compliance with the notice.

4.1D Any costs incurred by the Council in taking action under clause 4.1C, unless

otherwise agreed by the Council, must be paid by the person served with the notice under clause 4.1C and until such costs are paid with any interest payable, the costs will remain a charge on the premises on which the building is situated.

25. It is proposed that the penalty for failing to comply with this new Clause would be $1,000.

26. The proposed street art permit process is outlined at Attachment 5 (“Proposed Street Art Permit Process”). The process has been modelled on the planning permit process, but has been simplified where possible.

27. A street art permit application may be made for work which already exists at a site or for work which is planned to be done in the future.

28. An application for a street art permit may be made by the property owner or the occupier, provided they have the property owner’s consent.

29. A property that is the subject of a current street art permit may change ownership. The permit may be transferred to the new owner. If the new owner does not consent to keep the street art site, the permit ceases to be valid and the new owner (or any person acting with the consent of the owner) may then paint over the street art.

30. It is proposed that there would be no fee to apply for a street art permit or to transfer a permit to a new owner.

31. If a planning permit is required to display street art on a property (for example, due to heritage controls), the applicant would be referred to Council’s Development Planning Branch to lodge a planning permit application instead. They would not need to apply for a street art permit as well.

32. The local community would be consulted about each application for a street art permit. The applicant may be required to display a sign provided by Council at the proposed street art site for a period of 14 days to notify adjoining property owners/occupiers and the local community of the proposal and to invite their submissions about the proposal. After 14 days has passed, the applicant would be required to provide a statutory declaration to Council, confirming that the sign was displayed on the proposed site for a period of 14 days.

33. It is proposed that a Panel of appropriate people would be convened to consider any submissions and to decide whether to grant or refuse a street art permit application. The proposed Panel will include Council representatives and external representatives will be co-opted when necessary. The Panel would generally not be making decisions based on artistic merit, but would instead be assessing the appropriateness of a proposed site for the display of street art, especially with respect to matters included in the proposed permit conditions outlined below (see point 32). Permits would be issued under existing delegated authority.

34. A street art permit would be granted subject to specific conditions. Proposed conditions are as follows:

34.1. a property occupier/manager of an approved street art site must not cause or allow his or her premises to be kept in a condition which at any time in the opinion of Council officers:

34.1.1. contains material which is considered by Council officers to be obscene, racist or offensive; and/or

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34.1.2. is unsightly or is detrimental to the general amenity of the neighbourhood; and/or

34.1.3. contains material which is considered to discriminate against any person or community;

34.2. at no time must the painting, application, maintenance, alteration or removal of street art at this site result in paint splatters or spillage or any other damage to the air, waterways or the environment or to any surrounding property, or any Council assets or property including adjoining walls, the footpath or road surface, vegetation or any nearby surfaces or assets;

34.3. this approval expires three years after the date of issue. A property owner/occupier may then apply for subsequent extensions of time for further three year periods;

34.4. this permit does not exempt the permit applicant/holder or the property owner/occupier/manager or any other person from their responsibilities under all other Acts, Regulations and Local Laws;

34.5. if at any time the owner of the property for which this street art permit has been issued no longer gives their consent for street art to be on their property, this permit ceases to be valid.

35. If at any time, the above conditions are not met, Council would require the permit holder/property occupier/property manager to bring the site into line with the permit conditions. In some cases (for example where a particular site had failed to meet the permit conditions for a lengthy period of time or on several separate occasions) Council could revoke the street art permit and require the site to be cleaned in accordance with the City of Melbourne Graffiti Management Plan and the new provisions of the proposed Activities Local Law amendment.

36. Some sites may be inappropriate for street art. For example, some high profile pedestrian areas or retail areas may be considered inappropriate.

37. Street art, by its nature, is added to and changed, evolving over time. For this reason, a street art permit would give approval for a site rather than for a static picture. For example, a permit may allow street art on a rear wall of a building. As long as the work is contained within the permitted site boundaries, the actual artwork displayed would be allowed to change over time, as long as the site continued to meet the conditions outlined within the permit (see proposed conditions listed above).

38. Clause 9.2(B)(1) of the existing City of Melbourne Activities Local Law states:

An occupier of premises must not cause or allow his or her premises to be kept in a condition which in the opinion of the Council is unsightly or is detrimental to the general amenity of the neighbourhood.

39. This clause was written with graffiti in mind. The proposed amendments seek to provide a clearer mechanism to deal with street art and/or graffiti.

40. A street art permit application may be lodged for material which already exists on a building. At the time a permit application is lodged, the material in question may already be the subject of enforcement action under the Activities Local Law. In this case, any enforcement action would be suspended until Council decides whether to grant or refuse the permit. It the permit is granted, enforcement action would no longer be pursued as the property would be in compliance with the Activities Local Law. If the permit is refused, Council officers would require the material to be removed in accordance with the proposed Local Law amendment.

41. The street art permit process would not apply to chalk drawings or other artworks on the pavement. Clause 5.7 of Council’s Activities Local Law already requires a permit for this activity.

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Attachments: 1. Activities Local Law Amendment (Street Art) Local Law 2006 2. Summary of Submissions received 3. Submission received 4. National Competition Policy Review 5. Proposed Street Art Permit Process

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Background

42. The proposed Local Law was endorsed for advertising and public consultation by the Council at its meeting on 29 August 2006. At that meeting the Council established the Submissions Committee.

43. Public notice of the proposed Local Law was advertised in The Age and the Victorian Government Gazette.

44. The Submissions Committee met on 9 October 2006 to consider all submissions in response to the public notice.

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Attachment 1 Agenda Item 5.1

Community Services Committee 12 December 2006

1

MELBOURNE CITY COUNCIL

ACTIVITIES LOCAL LAW AMENDMENT (STREET ART) LOCAL LAW 2006

(NO. 2 OF 2006)

PART 1 PRELIMINARY

Title 1. This Local Law is called the “Activities Local Law Amendment (Street Art) Local Law 2006”. Objectives 2. The objectives of this Local Law are to:

(a) Provide a process for regulating and managing the legitimate display of street art in, or within view from, a public place.

(b) provide for the peace, order and good government of the municipality.

Authorising Provision 3. This Local Law is made under Section 111(1) of the Local Government Act 1989 (“the Act”). Application 4. Subject to the provisions of the Principal Local Law, this Local Law applies throughout the

municipal district. Commencement 5. This Local Law commences to operate from the day following its making. Revocation 6. Unless this Local Law is sooner revoked this Local Law ceases to operate on

30 June 2009. Definitions 7. In this Local Law, unless the context or subject matter indicates otherwise,

“Principal Local Law” means the Activities Local Law 1999 (No. 1 of 1999);

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PART 2 GENERAL

Amendments

8. Part 4 of the Principal Local Law is amended in the manner indicated:

(a) Insert in the Introduction after the word “buildings” “and street art in, or within view from, a public place”.

(b) Insert new clauses 4.1A, 4.1B, 4.1C and 4.1D as follows:

“Authorisation required for street art in, or within view from, a public place.

4.1A Unless:

a) in accordance with a permit; or

b) to do so is specifically authorised by and in accordance with a planning permit issued under the Melbourne Planning Scheme,

a person must not draw, paint, attach or mark any message, picture or representation by means of chalk, paint or other material (“drawing”), or allow or suffer to allow, on any part of an outside wall of a building such that the drawing is in, or within view from, a public place.

4.1B Where a drawing is on a building in breach of clause 4.1A, in addition to any

other powers Council has under this Local Law, the Council may serve a Notice to Comply on the owner or occupier of the building requiring the removal of the drawing.

4.1C If the person served with a notice under clause 4.1B fails to comply with the

notice to the Council’s satisfaction, the Council can take whatever action it considers is necessary to bring the building into compliance with the notice.

4.1D Any costs incurred by the Council in taking action under clause 4.1C, unless

otherwise agreed by the Council, must be paid by the person served with the notice under clause 4.1C and until such costs are paid with any interest payable, the costs will remain a charge on the premises on which the building is situated.”

9. The principal Local Law is further amended in the manner indicated

In the Schedule which appears at the end of the Principal Local Law:

After the row referring to clause 4.1 insert a new row as follows:

“4.1A Unauthorised display of street art in, or within view from, a public place $1000”.

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This document is issued by the Melbourne City Council. ……………………………. David Pitchford Chief Executive Officer as the Melbourne City Council’s duly appointed delegate.

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PROPOSED LOCAL LAW AMENDMENT – STREET ART PERMIT PROCESS SUMMARY OF SUBMISSIONS RECEIVED

Information about the source of the feedback Content of the feedback

Generally Supportive (P) Number Source & Date

Received Form of

feedback yes no

Issues

CoM Response

1

WRITTEN SUBMISSIONS RECEIVED FROM COMMUNITY MEMBERS 1 Ms Laura

Formosa , St Albans – 1 September 2006

Letter sent to Lord Mayor’s Office

P • I’d like to make a comment about graffiti around the

shopping centres in Melbourne, as a whole

• I was watching a TV program about the City Council wanting to legalise graffiti to some vacant walls with permission of the dwelling owners.

• I think it’s a good idea, however, I’m firmly not in favour of PUNK style graffiti. It really does give our environment a slack look that is rather depressing and promotes the wrong influences.

• We should have Beautiful Murals, like Australian Wildflowers, and Australian Sceneries like the Bush, the Coastlines and Sunrise and Sunset Murals.

Under the City of Melbourne Graffiti Management Plan, ‘graffiti’ is defined as ‘tagging and stand alone stencils’. Under State law, graffiti done without the property owner’s consent is illegal. The proposed street art permit process would not ‘legalise graffiti’. Instead it would create an opportunity for street art which is legal because the property owner and Council have provided permission. General support for the proposal noted. Property owners/occupiers are free to apply for a permit for street art of any artistic style, ranging from hip hop (‘punk’) through to more traditional styles. An application for a street art permit will not be assessed on the basis of artistic style. Instead, a proposal will be permitted if it is considered that it will not detract from the amenity of the surrounding area.

2 Bill Cook, Chairperson, North and West Melbourne Association Inc – 21 September 2006

Email (with submission attached)

P The North & West Melbourne Association very much

supports the Council in its efforts to address the issues of graffiti and street art.

• Paragraph 4, subclauses 4.1A – 4.1D It is not only buildings that should be subject to the street art permit requirements. There are many other structures that could be used for street art, for example, bus/tram shelters, fences, gates, bridges, utility structures, such as electric or gas pillar cabinets, light poles, water irrigation control cabinets, storage tanks (eg Royal Park Wetlands water storage tanks), cast iron and other public toilets. How will the amendment address such structures, as well as buildings?

• Paragraph 6 It is important that Council and other authorities are subject to the street art permit requirements – just as they are for planning permits for streetscape works, works in parks and gardens, etc.

General support for the proposal noted. The proposed amendment will apply to other structures. Under the existing Activities Local Law, the definition of ‘Building’ includes : “a part of a building and the whole or any part of a structure, temporary building or structure, fence, gate, wall, pavement light, outbuilding, service installation, mast, pole and other appurtenance of a building.” Council departments and other authorities are not exempt from the requirements of the Activities Local Law. However, it is proposed that in special circumstances, Council may exempt itself or another authority from the requirements of the proposed street art permit process to facilitate a street art proposal. Examples of where Council might choose to make an exemption may include art proposals as part of Council’s well-established arts grant application process or a proposal by a public authority to commission a mural to address an ongoing tagging problem. Where a planning permit is required for street art because of heritage overlays, the proposed street art permit process will not

Attachment 2 Agenda Item 5.1

Community Services Committee 12 December 2006

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PROPOSED LOCAL LAW AMENDMENT – STREET ART PERMIT PROCESS SUMMARY OF SUBMISSIONS RECEIVED

Information about the source of the feedback Content of the feedback

Generally Supportive (P) Number Source & Date

Received Form of

feedback yes no

Issues

CoM Response

2

Street art permits should extend beyond areas or places covered by heritage overlays.

• Paragraph 32 Should the matter of illumination of street art be taken into consideration, with possible impacts How is the removal of street art from a building or structure to be guaranteed, following the routine lapse of a permit or a permit becoming invalid (cf paragraph 32.5)? It appears that removal is only required if a permit is revoked as set out in paragraph 33. Removal in all cases should [be] effected promptly and in compliance with the City of Melbourne’s Graffiti Management Plan.

• Paragraph 32.2 It is not only the painting or application of street art that needs to be addressed; any maintenance or alteration and the removal of the street art must not cause any detriment. Also, vegetation should be included in the Council assets/property list.

• Paragraph 34 Sites that may also be considered inappropriate for street art could include within or near Heritage Places or in parks and gardens.

apply. The proposed street art permit system has been designed to cover those properties where a planning permit is not required. No overlap of permit requirements is intended. The proposed street art permit system will not introduce any new controls on illumination. If a property owner would like to illuminate street art on their site, they will need to comply with any existing Council (or other) requirements. It is understood that the Environment Protection Act contains provisions to ensure that lighting does not adversely affect amenity. The same cleaning requirements would apply in the following situations: Following the routine lapse of a street art permit or When a street art permit becomes invalid and When a street art permit is revoked. In each case, the site would be required to be cleaned in accordance with the City of Melbourne Graffiti Management Plan and the new provisions of the proposed Activities Local Law amendment. The proposed street art permit conditions will be amended as follows: “At no time must the painting, application, maintenance, alteration or removal of street art at this site result in paint splatters or spillage or any other damage to the air, waterways or the environment or to any other surrounding property, or any Council assets or property including adjoining walls, the footpath or road surface, vegetation, or any nearby surfaces or assets” (additions emphasised) Examples of locations where street art may be considered either appropriate or inappropriate include parks and gardens or areas within or near heritage places. It is not the intention of the proposed permit process to exclude street art in these areas. As is usual with Local Law implementation, while the legal foundation appears in the actual Local Law, the details of practical implementation will be formalised in a Policy Operating Statement. N.B: While only Clause 4.1A is quoted in the Committee Report, the entire proposed amendment (Clauses 4.1A and 4.1 B to D are included in Attachment One to the report). This submission was discussed in detail with Kaye Oddie, a

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PROPOSED LOCAL LAW AMENDMENT – STREET ART PERMIT PROCESS SUMMARY OF SUBMISSIONS RECEIVED

Information about the source of the feedback Content of the feedback

Generally Supportive (P) Number Source & Date

Received Form of

feedback yes no

Issues

CoM Response

3

• Finally, we seek your advice as to how the more detailed provisions in the Management Report and upon which we have submitted comments are to be adequately translated into the actual Activities Local Law Amendment (Street Art) 2006 (cf Attachment 1) – an example is that only clause 4.1A is included in the Local Law, not clauses 4.1B-D.

representative of the North and West Melbourne Association Inc. On behalf of the Association she conveyed that she was satisfied with the responses provided to each point raised (as outlined above). She was keen to assert that communication materials prepared for the community, government agencies and contractors about this proposed permit system must be very clear to ensure that the process is well understood (for example, clarifying the definition of ‘building’ as discussed above).

3 Mark Boldiston, Specialisation Manager, Professional Development, Law Institute of Victoria – 22 September 2006

Email (with submission attached)

P • I hereby endorse the proposal for a 6 month trial of the

Street Art Permit Process as it formally recognises the difference between tagging and mural/street art and its importance to the vibrancy of the city.

• I endorse this proposal on the assumption that the process is designed to ensure the strong street art culture in Melbourne continues to flourish rather than a back handed way to remove it from our city walls.

• Having recently travelled for six months throughout Europe the only two cities I visited which had such a vibrant street art culture was Berlin and Barcelona (although not on the scale of Melbourne). It is hoped that the continued allowance of street art will result in Melbourne being internationally recognised for more than just the MCG and the Melbourne Cup.

• Our vibrant laneways (including the street art) helps make our city such a wonderful place to live and work. They (in all their forms) need our protection from over development and conservatism.

General support for the proposal noted. The proposed street art permit process is intended as a way of creating legitimate avenues for street art which is valued by the community. Council staff will continue to work with property owners/ occupiers /managers to remove undesirable Illegal graffiti from the city. Comments noted and respected.

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Attachment 3 Agenda Item 5.1

Community Services Committee 12 December 2006

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NORTH & WEST MELBOURNE ASSOCIATION INC.

A0004909Z ABN 68099241363

For those who live or work in North or West Melbourne P.O. BOX 102, NORTH MELBOURNE VIC 3051 tel/sms 0405 151 905 nwma@vicnet.net.au

11/9/06

Ms. Aenea Himbury Community Relations Co-ordinator Engineering Services Group City of Melbourne PO Box 1603 Melbourne VIC 3001 Dear Aenea, RE: SUBMISSION – PROPOSED ACTIVITIES LOCAL LAW AMENDMENT PERMIT REQUIREMENT FOR STREET ART The North & West Melbourne Association very much supports the Council in its efforts to address the issues of graffiti and street art. We would like to make some comments relating to the above proposed Local Law amendment. The comments are referenced to the Council report of 29 August 2006, agenda item 5.14 and, specifically, the Community Services Committee report of 8 August 2006, agenda item 5.7 within the Council report. Paragraph 4, subclauses 4.1A – 4.1D It is not only buildings that should be subject to the street art permit requirements. There are many other structures that could be used for street art, for example, bus/tram shelters, fences, gates, bridges, utility structures, such as electric or gas pillar cabinets, light poles, water irrigation control cabinets, storage tanks (eg Royal Park Wetlands water storage tanks), cast iron and other public toilets. How will the amendment address such structures, as well as buildings?

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Paragraph 6 It is important that Council and other authorities are subject to the street art permit requirements – just as they are for planning permits for streetscape works, works in parks and gardens, etc. Street art permits should extend beyond areas or places covered by heritage overlays. Paragraph 32 Should the matter of illumination of street art be taken into consideration, with possible impacts? How is the removal of street art from a building or structure to be guaranteed, following the routine lapse of a permit or a permit becoming invalid (cf paragraph 32.5)? It appears that removal is only required if a permit is revoked as set out in paragraph 33. Removal in all cases should effected promptly and in compliance with the City of Melbourne’s Graffiti Management Plan. Paragraph 32.2 It is not only the painting or application of street art that needs to be addressed; any maintenance or alteration and the removal of the street art must not cause any detriment. Also, vegetation should be included in the Council assets/property list. Paragraph 34 Sites that may also be considered inappropriate for street art could include within or near Heritage Places or in parks and gardens. Finally, we seek your advice as to how the more detailed provisions in the Management Report and upon which we have submitted comments are to be adequately translated into the actual Activities Local Law Amendment (Street Art) 2006 (cf Attachment 1) – an example is that only clause 4.1A is included in the Local Law, not clauses 4.1B-D. The Association would like to reserve the right to speak at any Submissions Committee hearing. Yours sincerely, Bill Cook Chairperson

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22 September 2006 Mark Boldiston 9/237 Flinders Lane Melbourne 3000 Ph: 9650 0963 STREET ART PERMIT PROCESS I hereby endorse the proposal for a 6 month trial of the Street Art Permit Process as it formally recognises the difference between tagging and mural/street art and its importance to the vibrancy of the city. I endorse this proposal on the assumption that the process is designed to ensure the strong street art culture in Melbourne continues to flourish rather than a back handed way to remove it from our city walls. Having recently travelled for six months throughout Europe the only two cities I visited which had such a vibrant street art culture was Berlin and Barcelona (although not on the scale of Melbourne). It is hoped that the continued allowance of street art will result in Melbourne being internationally recognised for more than just the MCG and the Melbourne Cup. Our vibrant laneways (including the street art) helps make our city such a wonderful place to live and work. They (in all their forms) need our protection from over development and conservatism. Regards Mark Boldiston

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3 November 2006 Mr Kim Wood Manager, Legal Services City of Melbourne PO Box 1603 MELBOURNE VICTORIA 3001 Dear Mr Wood PROPOSED AMENDMENT TO LOCAL LAW — STREET ART NATIONAL COMPETITION POLICY REVIEW I am writing in response to your letter of 16 October 2006 regarding a proposal to amend the Council Activities Local Law (‘the Local Law). The amendment primarily seeks to introduce a permit process for the regulation of street art in public places. This follows the release of the Melbourne City Council’s Graffiti Management Plan, which committed the Council to establishing a process for the legitimate public exhibition of street art. You asked for a review of the impact of the proposed Local Law in respect to National Competition Policy requirements and, in particular, compliance with clause 2(j) of Schedule 8 of the Local Government Act 1989.

National Competition Policy In April 1995, the Commonwealth, State and Territory Governments signed the inter-governmental Competition Principles Agreement (CPA), committing themselves to ensuring that new and existing legislation does not impose undue competitive restrictions: ‘The guiding principle is that legislation (including Acts, Ordinances or regulations) should not restrict competition unless it can be demonstrated that: a) the benefits of the restriction to the community as a whole outweighs the cost; and b) the objectives of the legislation can only be achieved by restricting competition.’ Sub-cl. 5(1) Competition Principles Agreement The CPA extends to all forms of legislation, including the proposed amendments to the Local Law. The ‘competition test’ is intended to establish whether restrictions on competition are necessary, through an assessment of the costs and benefits of current and alternative means of achieving policy objectives.

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As the competition test is built on the presumption that restrictions on competitive economic behaviour impose costs on the community, the burden of proof is on the Council, and those who support competitive restrictions, to establish the case for the retention or enactment of legislation which restricts competition. To this end, NCP acknowledges that competition is not an end in itself; that while, in general, competition will deliver benefits to the consumer, there are situations where community welfare will be better served by not effecting particular competition reforms, or by restricting competition in some way. That is, competition is to be implemented to the extent that the benefits that will be realised from competition outweigh the costs. Sub-clause 1(3) of the CPA provides for considerations other than strictly economic criteria in assessing public benefit in circumstances where, on balance, there is a net benefit for the community. It sets out the circumstances in which the weighing up process is called for, and also some of the factors which need to be taken into account in making the decision: ‘Without limiting the matters that may be taken into account, where this Agreement calls: (a) for the benefits of a particular policy or course of action to be balanced against the costs of the

policy or course of action; or (b) for the merits or appropriateness of a particular policy or course of action to be determined; or (c) for an assessment of the most effective means of achieving a policy objective; The following matters shall, where relevant, be taken into account: (a) government legislation and policies relating to ecologically sustainable development; (b) social welfare and equity considerations, including community service obligations; (c) government legislation and policies relating to matters such as occupational health and safety,

industrial relations and access and equity; (d) economic and regional development, including employment and investment growth; (e) the interests of consumers generally or of a class of consumers; (f) the competitiveness of Australian businesses; or (g) the efficient allocation of resources.’ This is called the public interest test. The National Competition Council (NCC) emphasises that the public interest test is not exclusive or prescriptive. Rather, it provides a list of indicative factors the Council could look at in considering the benefits and costs of particular actions, while not excluding consideration of any other matters in assessing the public interest. If, on balance, the costs of restrictions on competition in the legislation outweigh the benefits, then the restrictive legislative provisions should not be retained (or be introduced). Even if, on balance, there are net benefits arising from restrictions, the legislation should only be retained in its current form if its objectives cannot be achieved more efficiently through other means, including non-legislative approaches.

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Local Government Act 1989 Clause 2(j) of Schedule 8 states that: ‘A local law must not restrict competition unless it can be demonstrated that: (i) the benefits of the restriction to the community as a whole outweigh the costs; and (ii) the objectives of the local law can only be achieved by restricting competition.’

The regulation of street art and its effects on competition Melbourne City Council is considering a proposal to create a formal process to regulate street art in the City of Melbourne. The proposed amendment to the Local Law would allow the Council to institute a permit process whereby property owners wanting to display street art in, or within view from, a public place, would be required to firstly obtain a permit from the Council. In order to obtain a permit, an applicant would need to notify adjoining property owners, and the broader community, by displaying a notice on their premises for twenty-eight days indicating the applicants’ intent to exhibit street art. A panel formed by the Council would be responsible for assessing each permit application, and would primarily consider the appropriateness of the proposed site rather than the artistic merit of the proposed display. The panel would also consider unfavourably any street art that involves material that is deemed to be offensive, discriminatory or detrimental to the general amenity of the neighbourhood. It is important to recognise that the proposed amendment does not directly target commercial entities, and would apply equally to both residential and commercial premises. This analysis considers the proposed amendment to the extent that it applies to businesses, and may therefore affect competition. The proposed street art permit process would apply equally to all firms operating within the City of Melbourne. Any business that currently uses street art for commercial advantage would need to apply for a permit under the proposed amendment. However this cost is likely to be minimal. It is understood that there would be no fee associated with the street art permit process, and that permits would be valid for three years. Thus, it is not clear that any regulations affecting street art would restrict competition. However, even if that were the case, such regulations may well be justified, from the point of view of an efficient allocation of resources, one of the criteria for assessing policies or actions under the CPA. The key analytical concept in considering the competition effects of the proposed changes to the law is externalities. Competitive markets are generally considered to lead to an efficient allocation of resources (i.e. resources are allocated to activities which maximise their societal value) provided certain conditions are met. One such condition is that markets do not exhibit externalities, i.e. costs (or benefits) which accrue to third parties, and which are not reflected in market prices. Street art, because it is out in the open, and people don’t pay to view it, may well create unpriced costs or benefits. There may be several reasons why a business may wish to display street art on its premises. One reason may be as a form of advertising, but a more likely reason is that the business wishes to enhance the general amenity of the area in the hope of attracting more customers. In that case, the business will benefit from the street art, and perhaps so will other businesses in the neighbourhood. The problem in this instance however is that there is no objective measure of whether a piece of street art enhances or detracts from the amenity of a neighbourhood, let alone by how much. What may look to one person as a beautiful piece of art, may be ugly or offensive trash to someone else. Such aesthetic judgments are inherently personal and subjective. Hence it cannot be known whether street art will create positive

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externalities (unpriced benefits to third parties) or negative externalities (unpriced costs to third parties). In many cases, a piece of street art may create positive externalities for some people, and negative externalities for others. In the circumstances, any regulations that Melbourne City Council places on street art for the purposes of maintaining the amenity of a neighbourhood are likely to have a second-order effect, at most, on competition between businesses. While questions of whether a particular piece of street art may be offensive, discriminatory and detrimental to amenity may be difficult to resolve and involve, as discussed above, subjective aesthetic personal preferences, they are not questions that materially involve matters of National Competition Policy. Furthermore, the permit process being proposed includes several measures to reduce any negative externalities arising from the public exhibition of street art. The requirement in the proposed amendment for permit applicants to notify neighbouring property owners and the broader community of their intention to exhibit street art provides an opportunity for any affected parties to put forward their opposition. Additionally, the proposed amendment clearly states one of the permit conditions to be that the application, maintenance and removal of street art must not damage the surrounding environment. Given that the Council permit approval process will also consider the appropriateness of the site and any offensive material, these provisions should act to minimise any negative externalities created by the street art. Are there alternatives? Assuming that there are negative externalities arising from the exhibition of street art, economic analysis offers two theoretical alternatives to legislative restrictions on street art: 1. The Council could put a tax on street art, in the expectation that if it was taxed, there would less

of it. The level of the tax would be set just so that the marginal social benefits of street art (which would accrue to the businesses exhibiting the street art) would just equal the marginal social costs of street art (the loss of amenity, or other costs).

• Even assuming that the Council had the power to set this tax, and could collect the revenue at

relatively little cost, for this alternative to work, the Council would need to know at what level to set the tax, which in practice it would not, as it would not know how property owners’ behaviour would change when faced with the tax.

2a. The Council could assign ‘property rights’ to the property owners and it would be open to those

negatively affected by street art to negotiate with property owners to stop them displaying it, perhaps by paying them to do so.

2b. The Council could assign ‘property rights’ to those negatively affected by street art, and it would

be open to property owners to negotiate with those people negatively affected by street art to allow them to exhibit street art, perhaps by paying them to compensate for the effects of the street art.

• Even if alternatives (2a) and (2b) could be implemented legally, they are replete with practical

problems e.g. the difficulty of identifying all affected parties and the transactions costs involved in any negotiations.

On the other hand, if there are positive externalities from street art, the same analysis applies, but in reverse, so that, in theory, the Council may provide a subsidy to street art to encourage it. But since there is no way of knowing to what extent street art creates positive or negative externalities, the Council could not know whether it should use economic instruments, or property rights, to encourage or discourage street art, let alone by how much to encourage to discourage it.

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Thus, while there are theoretical alternative solutions to regulation for this issue, they are not practical. In summary: (i) Melbourne City Council’s proposed amendments to the Local Law to regulate street art are

unlikely to have any material effect on competition. (ii) While theoretical alternatives to the proposed legislative solution to the issue do exist, they are

not practical. Yours sincerely

(Dr) Jerome Fahrer Director

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Attachment 5 Agenda Item 5.1

Community Services Committee 12 December 2006

1

PROPOSED STREET ART PERMIT PROCESS

1. A street art permit application may be made for work which already exists at a site or for work which is planned to be done in the future.

2. An application for a street art permit may be made by a property owner or occupier, provided they have the property owner’s consent.

3. The applicant lodges a formal street art permit application with Council on a standard application form which would require the following information:

3.1. applicant name and contact details;

3.2. proof that the property owner has provided their consent for the application to be lodged;

3.3. property address and description of the proposed street art site (for example, the exact location of the wall where the street art would be displayed);

3.4. description of the proposed or existing street art which will include a photograph, written description or a sketch.

4. [When the process is first introduced, we will assist businesses to understand the requirements of the process. This will involve assistance with neighbourhood consultation and other support that may be required for property owners and occupiers to understand how the permit process will affect them].

5. Council officers inspect the site to ensure there is no obvious reason why the site is inappropriate

for street art. For example, some high profile pedestrian areas or retail areas may be considered inappropriate.

6. The applicant may be required to display a sign provided by Council at the proposed street art site for a period of 14 days to notify adjoining property owners/occupiers and the local community of the proposal.

7. The applicant provides a statutory declaration to Council, confirming that the sign was displayed on the proposed site for a period of 14 days.

8. Council considers all comments about the proposal.

9. Council makes its decision to grant or refuse the permit application and makes its decision known to the applicant and any submitters.

10. If the permit is refused, the owner/occupier will be approached to remove any existing material in accordance with the City of Melbourne Graffiti Management Plan.

11. If a permit is granted, the applicant must display a sign provided by Council stating that the street art site has been approved by Council.

12. A permit would generally expire after three years from the date of issue. Subsequent requests to renew the permit for further three year periods could then be made.

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Agenda Item 5.1 Community Services Committee

12 December 2006

FINANCE ATTACHMENT

PROPOSED LOCAL LAW AMENDMENT – STREET ART PERMIT PROCESS – OUTCOMES OF CONSULTATION

There is no direct financial cost arising from the recommendations contained in this report, although there may be additional administrative costs which ultimately arise with the introduction of a permit system.

Joe Groher Manager Financial Services

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Agenda Item 5.1 Community Services Committee

12 December 2006

LEGAL ATTACHMENT

PROPOSED ACTIVITIES LOCAL LAW AMENDMENT – PERMIT REQUIRED FOR STREET ART – CONSULTATION OUTCOMES

It is open to Council to make a local law under the Local Government Act 1989 (“the Act”) and a local law is a subordinate instrument for the purposes of the Interpretation of Legislation Act 1984.

The Act sets out the procedure that must be complied with for making a local law at section 119.

The relevant local law must be advertised in the Government Gazette as required by section 119(2) of the Act, and submissions have been received and considered as part of that consultation process as set out in this report.

Pursuant to section 119(3) of the Act, after a local law has been made the Council must give a notice in the Government Gazette and a public notice setting out:

“(a) the title of the local law;

(b) the purpose and general purport of the local law; and

(c) that a copy of the local law may be inspected at the Council office.”

After a local law has been made, section 119(4) requires that a copy be sent to the Minister and be made available under section 120 of the Act.

The independent report from Allen Consulting Group Pty Ltd accurately describes the National Competition Policy principles and that the local law is unlikely to have any material effect on competition and does not restrict competition as required by the Act. Kim Wood Manager Legal Services

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