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UNIT 1 FOUNDATION AND POWERS OF COUNCILS

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					    Local Government Law


            [LAW7087]



Postgraduate Studies Reading Guide
                                                         INDEX

TOPIC 1 : FOUNDATION AND POWERS OF COUNCILS .................................................... 3

TOPIC 2 : GOVERNANCE AND ADMINISTRATION............................................................. 6

TOPIC 3 : DECISION-MAKING ............................................................................................. 8

TOPIC 4 : COUNCIL FINANCES ......................................................................................... 10

TOPIC 5 : LOCAL LAWS .................................................................................................... 14

TOPIC 6 : COUNCILS AND LIABILITY ............................................................................... 17
TOPIC 1 : FOUNDATION AND POWERS OF COUNCILS


                                         Introduction

The focus of this topic is on the legal foundation and nature of Victorian councils.

It will begin by considering those provisions in the Constitution Act 1975 which provide for a
system of local government in Victoria. Consideration will be given to the extent to which
councils are protected from State Government intervention.

Attention will then turn to the way in which councils are constituted, and the incidents of
incorporation.

Most of the topic will be devoted to the concept of power. So, there will be an analysis of the
limits of a council's powers under the Local Government Act 1989. Abuse of power – the
doctrine of ultra vires in its extended sense – will also be extensively surveyed.


                             Part A – Constitutional Foundation

Councils are not recognised by the Commonwealth Constitution. Rather, they are the
product of State legislation. In Victoria, it is the Constitution Act 1975 which provides for a
system of local government.

Provisions in the Constitution Act were amended as a result of a 'Constitutional Convention'
attended by local government representatives in 2000. It was hoped that the amendments
would immunise councils from arbitrary State Government intervention. In fact, there
remains considerable potential for the State Government to intervene in a council's affairs.

Key Materials

        Part IIA of the Constitution Act 1975

        City of South Melbourne v Hallam [1995] 1 VR 247

        Section 219 of the Local Government Act 1989


                             Part B – Councils As Corporations

Each Victorian council is a body corporate. As such, it is capable of suing and being sued.

This has a number of legal implications. Among them is an inability to sue for defamation.

How a council is constituted – how it comes to be a body corporate – is explained by the
Local Government Act 1989. That Act makes provision for councils to be 'restructured' by
Orders in Council.

Key Materials

        Sections 4 – 5B of the Local Government Act 1989

        Section 9 of the Defamation Act 2005

        Part 10C of the Local Government Act 1989



                                                 3
                                 Part C – Concept of Power

Because it is created by statute, a council has only the powers conferred on it by the
Victorian Parliament. These are the powers which are expressly stated or can necessarily
be implied, or which are incidental to such powers.

The Local Government Act 1989 contains a 'Local Government Charter', setting out the
powers of councils. On one view, these powers are practically unlimited. On another view,
they are circumscribed by the municipal character of councils themselves.

Whatever the limits of these powers, a council can go beyond power (and act ultra vires) by
offending one or more Administrative Law principles. These principles require a council:

1.      to only take into account relevant considerations;

2.      to disregard all irrelevant considerations;

3.      to act only for a legitimate or proper purpose;

4.      not to act unreasonably;

5.      not to act under dictation;

6.      not to act in accordance with a self-created rule of policy; and

7.      to observe procedural fairness.

The Victorian Charter of Human Rights and Responsibilities also constrains the exercise of
power by a council. A council will act unlawfully by acting in a way which is incompatible with
a human right or by failing to give proper consideration to a relevant human right before
making a decision.

Key Materials

       Part 1A of the Local Government Act 1989

       Jovanovic v Southorn [1987] Tas R 7

       Bensen Developments Pty Ltd v Monash CC [2005] VCAT 194

       McMahons Road Pty Ltd v Frankston CC [2005] VSC 522

       Nekon Pty Ltd v Hobart CC (2004) 133 LGERA 288

       Romanella v City of Melbourne (1986) 62 LGRA 327

       Nicholson v Mornington Peninsula SC [2007] VSC 519

       R v West Coast Council; ex parte The Strahan Motor Inn (1995) 87 LGERA 383

       Winky Pop Pty Ltd v Hobsons Bay CC [2007] VSC 468

       McGovern v Ku-ring-gai Council (2008) 161 LGERA 170

       Sections 7-27, 38 and 39 of the Charter of Human Rights and Responsibilities Act
        2006



                                               4
                              Part D – Some Specific Powers

The general grant of administrative power embodied in the Local Government Charter is
complemented by specific powers and qualified by particular procedural requirements.

For example, the power to contract is restricted by section 186 of the Local Government Act
1989. It provides that a council must undertake an 'open' or 'closed' tender process before
entering into a contract (for the supply of goods or services or the carrying out of works) with
a transactional value of $150,000 or more (or $200,000 or more in the case of works).

Similarly, sections 189 and 190 of that Act insist that councils follow a process for selling or
leasing land. Section 193 mandates the taking of various internal or external steps before
the council can engage in an 'entrepreneurial' activity.

Traffic and roads powers are exhaustively defined. They have been left untouched by the
Road Management Act 2004.

Key Materials

        Section 186 of the Local Government Act 1989

        Tonkin v Cooma–Monaro SC (2006) 145 LGERA 48

        Sections 189 -191 of Local Government Act 1989

        Bycon Pty Ltd v Moira SC [1998] VSC 25

        Extracts from Auditor-General's Report on East Gippsland Shire Council

        Section 193 of the Local Government Act 1989

        Sections 204 - 207 of the Local Government Act 1989

        Schedules 10 and 11 to the Local Government Act 1989

        Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504




                                               5
TOPIC 2 : GOVERNANCE AND ADMINISTRATION


                                         Introduction

The Local Government Act 1989 says comparatively little about the role of elected members.
Its treatment of the 'organisational arm' of councils – headed by a chief executive officer, and
comprising council staff – is similarly modest.

Yet, is it this relationship between and among councillors (on the one hand) and the
administration (on the other hand) which is at the heart of governance. Aspects of this are
dealt with in Topic 2.

The topic commences with a description of how councillors are elected to office. Those
provisions in the Local Government Act 1989 which are often highlighted during contested
elections will be examined.

Attention then turns to the qualifications for elected office, and how councillors are
remunerated. Provisions in the Local Government Act 1989 concentrating on councillor
conduct will be examined. The efficacy of codes of conduct, and recent proposals for
reforms that would enable action be taken against a recalcitrant councillor, will also be
looked at.

Finally, we will look at the administration of councils. This necessitates an understanding of
how 'senior officers' are employed, and the 'conduct principles' applicable to them.


                                Part A – Electoral Processes

A general election is to be held for all Victorian councils in 2008. Thereafter councillors will
serve four year terms.

Except in the case of a multi-member ward or riding, councillors are elected through the
exhaustive preferential method of voting. Proportional representation is used to elect
candidates where more than one councillor is to represent a ward or riding.

Controversy during election campaigns is to be expected. Occasionally, the controversy
gives rise to legal challenge to an election result. The Municipal Electoral Tribunal
customarily determines these challenges. Frequently, what is alleged is contravention of one
or more provisions contained in Division 8 of Part 3 of the Local Government Act 1989.

Key Materials

        Sections 31, 37 and 38 of the Local Government Act 1989

        Divisions 1, 7 and 8 of Part 3 of the Local Government Act 1989

        Medcraft v Potter (unreported, Municipal Electoral Tribunal, Mr M Smith, 19 June
         2006)




                                               6
                                    Part B – Councillors

Enrolment – or an entitlement to be enrolled – is a pre-condition to winning and retaining
office. Even then, an elected member is at risk of being disqualified in certain circumstances.

One of the elected members will become Mayor. The Local Government Act 1989 provides
that the Mayor is to preside at any meeting at which he or she is present, and is eligible to
receive a Mayoral Allowance. By convention, the Mayor is the 'leader' of the council and
often speaks on the council's behalf.

The Mayoral Allowance is greater than the allowance paid to other councillors. All
councillors must be reimbursed any bona fide out of pocket expenses which they have
incurred in carrying out their functions.

The Local Government Act 1989 makes it an offence for a councillor to engage in specified
conduct. Beyond this, every council has a Code of Conduct outlining what is expected of a
councillor. The utility of these Codes of Conduct is open to question.

Key Materials

       Sections 11, 12 and 13 of the Local Government Act 1989

       Sections 28 – 30 of the Local Government Act 1989

       Re Wallace (1987) 63 LGRA 138

       Sections 71 – 75C of the Local Government Act 1989

       Sections 76B - 77 and 81A – 81S of the Local Government Act 1989

       Styles v Wollondilly SC (2002) 120 LGERA 172

       D Baird and G Wallace, "Council codes of conduct: More than a slap on the wrist",
        Councillor (June/July 2005) pg 43

       Department of Planning and Community Development, "Better Local Governance",
        Consultation Paper (2007)

       M Hayes, "Councillor access to documents: an established right", Councillor
        (September/October 2005) pg 45

       Sections 240A and 240B of the Local Government Act 1989

                                 Part C – The Organisation

Councils are administered by professional managers and other staff. They are responsible
for advising councillors and implementing council decisions.

Senior staff enjoy limited tenure. Employment contracts are a maximum 5 year term, and are
performance-based.

Key Materials

       Sections 94-98 of the Local Government Act 1989

       Milthorpe v Mt Alexander SC (1997) 12 VAR 105



                                              7
TOPIC 3 : DECISION-MAKING


                                         Introduction

A council can only make a decision by two means.

A council can embody a decision in a resolution. This presupposes a lawfully convened
meeting of the council. The resolution would emerge from a motion considered at the
meeting.

Alternatively, a decision can be made by a delegate. A council can only delegate to a special
committee or to a member of its staff.

This topic looks at council meetings. In doing so, it examines how decisions are made and
can be rescinded.

Considerable attention is given to when councillors are disabled from participating in
deliberations. The new 'conflict of interest' regime – introduced by the Local Government
Amendment (Councillor Conduct and Other Matters) Act 2008 – is analysed.

This topic also looks at decisions made under delegation. Particular emphasis is given to
council staff as delegates, and the consequences of a delegation being exceeded.


                                 Part A – Council Meetings

There are two types of meeting – Ordinary and Special Meetings.

Unless a decision is taken by a delegate, council decisions can only be made at such
meetings. Informal meetings – gatherings of councillors, in whatever guise (eg briefings,
forums etc) – do not qualify.

Having made a decision, a council is often free to change its mind. Some resolutions are,
though, incapable of revocation.

Generally, a councillor has a right to be present at any meeting of the council. If he or she
has an 'interest' in an item, the existence and nature of that interest must be disclosed. If the
interest amounts to a conflict of interest, the councillor's obligations extend beyond
disclosure. He or she is prevented from voting (and, in fact, must be absent from the council
chamber while the vote is being taken).

Key Materials

        Sections 83 – 93A of the Local Government Act 1989

        Victoria Park Golf Club Inc v Brisbane CC (2001) 118 LGERA 107

        Keogh v Burnside CC (1992) 75 LGRA 163

        Townsend v Evans SC (2000) 109 LGERA 336

        Sections 76AA – 81 of the Local Government Act 1989

        Downward v Babington [1975] VR 872




                                               8
       R v Victor Harbor DC (1983) 50 LGRA 255

       Saunderson v Watson (2007) 157 LGERA 206


                                    Part B - Delegates

Section 98(1) of the Local Government Act 1989 provides for delegation of functions and
powers for council staff. Comparatively few functions and powers are unable to be delegated
in this way.

Most councils choose to delegate generously to their staff. Even so, instruments of
delegation invariably impose some conditions or the exercise of power.

Key Materials

       Section 98 of the Local Government Act 1989

       Lyons v Sutherland SC (2001) 117 LGERA 334




                                            9
TOPIC 4 : COUNCIL FINANCES


                                          Introduction

Although councils derive revenue from a number of sources, rate revenue is ordinarily central
to a council's financial fabric. The ability to levy rates is a defining characteristic of councils.

In this topic, we look at the concept of rateable land (or property). Generally, rates can only
be levied on land which is rateable.

The valuation systems used by councils will also be briefly touched upon. This requires an
understanding of the relationship between the Local Government Act 1989 and Valuation of
Land Act 1960.

Having laid the foundation in this way, the topic concentrates on different types of rates and
charges. General rates, service rates and charges, special rates and rates and the municipal
charge will all be reviewed.

Who is liable to pay any rate or charge is then dealt with. Some consideration will also be
given to mechanisms for relieving ratepayers from the burden of payment.

The procedure for declaring and levying rates and charges will be explained. This is a
prelude to examining what avenues of legal challenge are available to aggrieved ratepayers.

The topic concludes by analysing those parcels of land which are singled out for special
treatment. Cultural and recreational land, land used for electricity purposes and land used
for transmitting gas will be discussed.


                              Part A – Concept of Rateable Land

All land is rateable land unless it is described in section 154(2) of the Local Government Act
1989. Certain land used for public purposes, and land used exclusively for charitable
purposes, are examples of land which is non-rateable.

Key Materials

        Sections 154 and 221 of the Local Government Act 1989

        National Rail Corporation Ltd v Melbourne CC (unreported, County Court of Victoria,
         Judge Lewiton, 19 April 2002)

        Salvation Army (Victoria) Property Trust v Shire of Ferntree Gully (1952) 85 CLR
         159

        Salvation Army (Victoria) Property Trust v City of Richmond [1956] VLR 250

        Shire of Derby/West Kimberley v Yungngora Association Inc. (2007) 157 LGERA
         238


                                  Part B – Valuation Systems

If it is declaring a rate, the council will be raising revenue by multiplying the value of each
parcel of land by a specified rate in the dollar. The value of land will be the:



                                                10
1.       Capital Improved Value;

2.       Site Value; or

3.       Net Annual Value,

depending on which valuation system the council has chosen to use.

Key Materials

        Section 157 of the Local Government Act 1989

        Sections 13DA and DC of the Valuation of Land Act 1960


                             Part C - Types of Rates and Charges

The following rates and charges can be declared and levied by a council:

1.       general rates (which are raised either by a uniform rate or differential rates);

2.       service rates and service charges (eg for the collection and dispersal of refuse);

3.       the municipal charge (which is a flat or regressive 'tax' designed to enable a council
         to recover some of its administrative costs); and

4.       special rates and special charges.

Many Victorian councils are now resorting to raising general rates by the application of
differential rates. This means that different rates in the dollar apply to different property types
or classifications. For example, a higher rate in the dollar may apply to commercial industrial
or land compared with residential land.

This might be thought to create a number of legal issues. Certainly, this has been the
experience in New Zealand.

The boundaries of service rates and service charges are being tested. Some councils are
including within their service rates and charges an amount referable to the cost of operating
transfer stations.

Although largely unfashionable, municipal charges are still declared and levied by a number
of councils. There has a been a recent tendency to justify a municipal charge by reference to
particular costs imposed on the council itself.

Special rates and charges are used in a variety of circumstances. Central to them is the
concept of 'special' (as distinct from general) benefit. This concept itself may soon be
subjected to greater scrutiny.

Key Materials

        Sections 155 and 159 – 166 of the Local Government Act 1989

        McDonald v City of Hawthorn (1999) 10 AATR 201

        Kemp v Mornington Peninsula SC [2009] VCAT 245




                                               11
        Dixon v Alpine SC [2006] VCAT 502

        Wellington CC v Woolworths New Zealand Ltd (No. 2) [1992] 2 NZLR 537


                       Part D – Liability for and Relief from Payment

It is ownership of land which ordinarily makes for a liability to pay rates and charges. Only in
exceptional circumstances will the council be obliged to levy rates on an occupier of land.

The Local Government Act 1989 makes provision for a council to waive and defer the
payment of rates. It also confers on councils the power to grant rebates and concessions.

Key Materials

        Sections 156 and 158A of the Local Government Act 1989

        Sections 167 – 171A of the Local Government Act 1989


                             Part E – Procedure and Challenges

Rates and charges have their genesis in council budgets. A budget must be prepared,
'advertised' and adopted by a council.

A declaration of rates and charges usually accompanies the adoption of the budget. Once
declared, rates and charges are levied (by means of 'valuation and rate notice').

There are limited grounds on which a ratepayer can challenge a rate or charge. Apart from
judicial review, ratepayers are restricted to:

1.       challenging classification of their land used for differential rating purposes;

         Any challenge must be brought in the Victorian Civil and Administrative Tribunal;

2.       contesting rateability and errors in calculation;

         This involves County Court proceedings; and

3.       applying for a review of, or seeking a declaration about, special rate or special
         charge;

         The Victorian Civil and Administrative Tribunal is given jurisdiction to entertain
         applications of this type.

Key Materials

        Sections 127 – 130 of the Local Government Act 1989

        Section 223 of the Local Government Act 1989

        Regulations 8 and 9 of the Local Government (Finance and Reporting) Regulations
         2004

        Section 158 of the Local Government Act 1989




                                               12
       Section 179 of the Local Government Act 1989

       Division 3 of Part 8 of the Local Government Act 1989


                          Part F – Particular Rating Provisions

Some land is subject to the Cultural and Recreational Lands Act 1963. It has its own formula
for determining what amounts should be paid to a council (in lieu of rates and charges).

Privatisation has meant that other types of land have been taken outside the ambit of the
Local Government Act 1989 or designed as non-rateable. Some land used for electricity
purposes, and land used for the transmission of gas, are examples of this phenomena.

Key Materials

       Cultural and Recreational Lands Act 1963

       Northern Golf Club v City of Broadmeadows (unreported, Supreme Court of Victoria,
        Southwell J, 12 March 1985)

       Section 94 of the Electricity Industry Act 2000

       Section 140 of the Gas Industry Act 2001

       DEGP Pty Ltd Alinta v Wellington SC [2005] VSC 307




                                             13
TOPIC 5 : LOCAL LAWS


                                         Introduction

This topic is concerned with local laws made by councils. Local laws are a form of delegated
legislation.

Consideration will be given to whether there are any (and, if so, what) limits to a council's
ability to make a local law. In a sense, this issue is inextricably linked with an issue
considered in Topic 1 – whether a council has unlimited powers or whether its powers
(including the power to make a local law) is somehow constrained by the inherent nature of
councils themselves.

There will be particular focus on the concept of inconsistency. The requirement that a local
law must not be inconsistent with State legislation is, practically speaking, the most
significant restriction on a council's power to make local laws.

The procedure for making local laws will be canvassed. Here the emphasis will be on what
is required of councils in the 'advertising' process.

Something will also be said about the content of local laws, before the grounds of challenge
are examined. Like other delegated legislation, local laws can be attacked if they violate one
or more Administrative Law principles. The relevant principles will be looked at.

The topic will conclude with a brief discussion of how local laws are administered and
enforced.


                                Part A – Scope of Local Laws

Section 111(1) of the Local Government Act 1989 enables a council to make a local law 'for
or with respect to any act, matter or thing in respect of which' it has a 'function or power'. As
we have seen, the functions and powers of councils are set out in the Local Government
Charter.

A local law must not be inconsistent with an Act or regulation (section 111(2)). To the extent
to which an inconsistency arises, the local law will be inoperative (section 111(3)).

Key Materials

        Sections 111 and 111A of the Local Government Act 1989

        Section 8 of the Building Act 1993

        Lyster v City of Camberwell (1989) 69 LGRA 250

        Wain v Maroondah CC (2000) 112 LGERA 272

        Payne v Port Phillip CC (2007) 158 LGERA 308




                                              14
                              Part B – Procedure for Making

A local law can only be made after a council:

1.      gives public notice of the local law in its proposed form;

2.      considers any submissions made under section 223 of the Local Government Act
        1989;

3.      resolves to make the local law; and

4.      gives public notice of a local law as made.

A full description of the steps which must be taken by a council is to be found in section 119
of the Local Government Act 1989.

The public notice requirement is vital. Both the 'purpose' and 'general purport' of the
proposal local law, and the local law as made, must be given. Often this involves a
balancing exercise – the effect and essential terms must be set out without descending into
detail.

Key Materials

       Sections 120 and 123 of the Local Government Act 1989

       Robinson v City of Springvale (1970) 22 LGRA 166

       Concore Pty Ltd v Mulgrave SC (1987) 62 LGRA 355


                                      Part C – Content

Frequently, local laws regulate by means of a permit or licence system. Guidelines or
policies ordinarily supplement the systems, indicating the factors and taking into account
when deciding whether an application for a permit or licence should be issued.

Enforcement mechanisms are often provided for in local laws. Power is given to authorised
officers to issue notices to comply on those who breach a local law. Power to serve
infringement notices will also, generally, be conferred.

Beyond this, a local law can approach any given subject-matter in a variety of ways. The
bolder the approach, though, the greater the likelihood that Schedule 8 to the Local
Government Act 1989 may be enlivened.

Key Materials

       Section 112 – 117 of the Local Government Act 1989

       Schedule 8 to the Local Government Act 1989

       Pyke v MCC [1993] 2 VR 28

       Melton SC v Tankard (2001) 115 LGERA 177




                                                15
                               Part D – Grounds of Challenge

A local law can be challenged on the ground of:

1.       uncertainty;

2.       the pursuit of an improper or extraneous purpose; or

3.       unreasonableness.

In other words, the fact that a local law is otherwise within power (see section 111(1) of the
Local Government Act 1989) and is not inconsistent with an Act or regulation (as to which
see section 111(2)) is not conclusive of a liberty. A local law remains vulnerable to legal
challenge on other grounds.

There is also the prospect of a local law being 'read down', as a result of the operation of the
Charter of Human Rights and Responsibilities Act 2006.

Key Materials

        Velachoutakos v City of Port Melbourne [1972] VR 720

        Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan CC [1994] 1 Qd R
         291

        Re Gold Coast City (Touting and Distribution of Printed Matter) Local Law 1994
         (1995) 86 LGERA 288

        Section 7 of the Charter of Human Rights and Responsibilities Act 2006


                         Part E – Administration and Enforcement

Authorised officers are commonly entrusted with responsibility for administering and
enforcing local laws.

Any person (other than a councillor) can be appointed an authorised officer. This clothes the
person with various enforcement powers.

Key Materials

        Sections 224, 225 and 227A of the Local Government Act 1989




                                              16
TOPIC 6 : COUNCILS AND LIABILITY


                                           Introduction

This topic is concerned with the application of some aspects of civil liability to councils and
their councillors and members of staff.

It commences with a brief analysis of defamation. Here the emphasis will be on the defence
of qualified privilege, and its application inside and outside the council chamber.

The torts (or civil wrongs) of negligence and breach of statutory duty are then examined.
Relevant common law principles will be discussed, together with statutory provisions aimed
at modifying these common law principles.

The tort of nuisance will next be considered. Conduct on land owned, occupied or managed
by a council can unreasonably and substantially interfere with others' enjoyment of their own
land. In certain circumstances, this can make the council liable in (private) nuisance.

Finally, attention will be given to personal liability – when a councillor or member of council
staff can be individually liable for a statement, act or omission. The scope of section 76 of
the Local Government Act 1989 will be discussed.


                                    Part A – Defamation

Under the Defamation Act 2005, councils cannot sue in defamation. They can, however, be
sued as a result of the publication of defamatory matter.

Traditionally, the common law has afforded some protection to councillors for remarks made
inside the council chamber. As a result of the High Court's decision in Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520, an extended defence of qualified privilege is
now often available outside the council chamber. Essentially, whenever there is a discussion
of political or governmental subject-matter, and what is said has been published
"reasonably", a defence to a defamation action will exist.

Key Materials

       Cohen v McEvoy (2001) 122 LGERA 15

       M Hayes, "Knowing when to speak your mind", Councillor (September/October
        2004) pg 40


                    Part B – Negligence and Breach of Statutory Duty

To make out negligence, a claimant must prove:

1.      the existence of a duty of care;

2.      the breach of that duty;

3.      the necessary causal connection between the breach and the loss or damage
        suffered by the claimant; and

4.      loss or damage which is not too remote a consequence of the breach of duty.



                                               17
         In cases of personal injury or property damage, the application of these criteria is
         often less than complex. Much depends upon the reasonable foreseeability of loss
         or damage being sustained, and the standard of care expected of a reasonably
         competent council.

         More complicated are cases where pure economic loss is claimed              (eg a less
         valuable building, occasioned by a defect which should reasonably           have been
         detected) and where the negligence is said to arise from failure to         exercise a
         statutory power. Australian courts have grappled with what, other than      reasonable
         foreseeability, should generate the existence of a duty of care.

         The legislature has also been active in recent times. In response to considerable
         pressure from the community and public authorities, legislative reform has
         attempted to diminish public bodies' exposure to liability.

         The tort of breach of statutory duties is separate from the tort of negligence. It is
         enlivened whenever a council breaches a duty imposed by legislation. Not every
         breach of a legislative duty creates a civil liability. Everything depends upon
         whether there can be discerned a legislative intention that, in the event of breach, a
         private cause of action is available.

Key Materials

        Part XII of the Wrongs Act 1958

        Sections 97-106 of the Road Management Act 2004

        Shire of Brookton v Water Corporation (2003) 133 LGERA 119

        Western District Developments P/L v Baulkham Hills SC (2008) 160 LGERA 422


                                      Part C – Nuisance

Nuisances can occur in a variety of forms – noise, smell or the escape of potentially
hazardous things are examples of nuisances which can give rise to a legal liability.

From time to time councils are alleged to have committed a nuisance. For example, it is not
uncommon for councils to face claims arising out of roots which have protruded from trees on
naturestrips.

Indirectly, then, interference with another's enjoyment of his or her property occurs. It is this
which is at the heart of private nuisance.

Key Materials

        Lester – Travers v City of Frankston [1970] VR 2

        Richmond CC v Scantelbury (1988) 68 LGRA 49


                                  Part D – Personal Liability

Councils will frequently vicariously liable for the torts of their members of staff. A claimant,
however, will often have the option of joining the member of staff in any action which is
initiated.



                                              18
Section 76 of the Local Government Act 1989 provides some protection to members of staff
(and others) against personal liability. It obliges the relevant council to indemnify staff
against any (civil) liability which is incurred in good faith.

Key Materials

       Section 76 of the Local Government Act 1989

       Garrett v Freeman (2006) 147 LGERA 96




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