Local Government (Bayside) Proclamation 2016

In this Part:

Administrator means a person who is appointed by or under this Proclamation as an Administrator of the new council during the initial period.

contributions plan has the same meaning as in Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

deputy general manager means the person appointed by or under this Proclamation as the deputy general manager of the new council.

development control plan has the same meaning as in the Environmental Planning and Assessment Act 1979.

interim general manager means the person appointed by or under this Proclamation as the interim general manager of the new council.

(1)  The date of the first election of the councillors of the new council is 9 September 2017.

(2)  The number of councillors to be elected to the new council at its first election is 15.

(3)  The election is taken to be an ordinary election of councillors for the purposes of the Act or the regulations (other than for the purposes of the application of provisions relating to the administration and holding of first elections for councils and first mayors for councils).

(4)  Any contract, agreement or other arrangement entered into by a former council for the administration of an election for a former council is terminated by operation of this clause.

(5)  Clause 35 (2) applies to the termination of a contract, agreement or other arrangement by operation of this clause.

The new council is to be divided into 5 wards having the boundaries shown for the new area on the map with the identifier number PP5020–W kept in the register of public surveys on the amalgamation day.

Greg Wright is appointed as the Administrator of the new council.

(1)  If a person appointed as an Administrator of the new council declines the appointment or ceases to hold office under clause 14, the Minister may, by order published in the Gazette, appoint another person as Administrator of the council.

(2)  The Minister may, by order published in the Gazette, appoint an additional person or persons as Administrators of the new council, if the Minister is of the opinion that it is necessary to do so for the purposes of facilitating the operations of the council.

(3)  The Administrator of the new council has, during the initial period, the functions of the council and the mayor of the council. This subclause is subject to the provisions of this Proclamation and to any order appointing another Administrator.

(4)  If an additional Administrator is appointed:

(a)  each Administrator has the functions specified in the instrument of appointment, and

(b)  the Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than 1 Administrator.

(5)  The salary of an Administrator is to be determined by the Minister and paid from the funds of the new council.

(6)  For the purposes of the Act, an Administrator does not, in that position, hold an office or a place of profit under the new council.

(1)  The Minister may, by instrument in writing published in the Gazette, terminate an Administrator’s appointment at any time.

(2)  An Administrator ceases to hold office:

(a)  immediately before the end of the initial period, or

(b)  if the Administrator’s appointment is earlier terminated by the Minister, or

(c)  if the Administrator dies.

(1)  The interim general manager of the new council is Meredith Wallace.

(2)  The deputy general manager of the new council is Lara Kirchner.

(1)  If the person appointed as interim general manager of the new council declines the appointment or the appointment is terminated or the office of interim general manager is vacated for any other reason, the Administrator may appoint another person as the interim general manager of the council.

(2)  The Administrator of the new council or the council may, at any time, terminate the appointment of an interim general manager or a deputy general manager appointed under this Proclamation. Any such termination is to be consistent with the terms of any applicable contract of employment for the interim general manager or deputy general manager.

(3)  If a person appointed as an interim general manager was, immediately before the amalgamation day, the general manager of a council, the person has the same rights and entitlements as if the person were a senior staff member who was transferred to the new council under this Proclamation.

Note—

Under clause 406C of the Local Government (General) Regulation 2005, a transferred staff member is transferred under the same contract of employment (including the term of appointment) and retains accrued leave entitlements.

(4)  If a person appointed as a deputy general manager was, immediately before the amalgamation day, the general manager of a council, the person has the same rights and entitlements (apart from the person’s position) as if the person were a senior staff member who was transferred to the new council under this Proclamation.

(5)  Despite subclauses (3) and (4), the Administrator may vary (but not reduce) the remuneration that would otherwise be payable to the interim general manager or deputy general manager.

(6)  The operation of this clause is not to be regarded as a breach of contract between a former council or the new council and a senior staff member (including a general manager).

(7)  Nothing in this clause prevents:

(a)  the extension of the term of appointment of an interim general manager or a deputy general manager, or

(b)  the determination of a staff organisation structure for the new council that does not include the position of one or more deputy general managers.

(8)  Section 336 (2) and (3) of the Act apply to a person appointed as an interim general manager.

The mayor of the new council is to be elected by councillors in accordance with the Act.

(1)  The code of meeting practice of the former Rockdale City Council is to be the code of meeting practice of the new council until it is amended or replaced in accordance with the Act.

(2)  Any provision of the code of meeting practice that restricts the holding of meetings to places in a former area applies so that the restriction relates to places in the new area.

The new council is to use its best endeavours to facilitate the operation of this Proclamation, including sharing information, agreeing about required matters and working co-operatively with other councils.

(1)  Anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council.

(2)  Without limiting subclause (1):

(a)  any approval, order or notice given or made by a former council, and that had effect immediately before the amalgamation day, continues to have effect as if it had been given or made by the new council, and

(b)  anything commenced but not completed by a former council may be completed or discontinued by the new council.

(3)  This clause does not:

(a)  limit any other provision of this Proclamation, or

(b)  apply to the extent to which it is inconsistent with any other provision of this Proclamation.

(1)  A delegation by a former council that was in force immediately before the amalgamation day is taken to be a delegation by the new council and may be revoked or amended accordingly.

(2)  A delegation by a former council to the general manager of that council that was in force immediately before the amalgamation day is taken to be a delegation by the new council to the interim general manager and may be revoked or amended accordingly.

(1)  The codes, plans, strategies and policies of the new council are to be, as far as practicable, a composite of the corresponding codes, plans, strategies and policies of each of the former councils.

(2)  This clause ceases to have effect in relation to a code, plan, strategy or policy when the new council adopts a code, plan, strategy or policy that replaces that code, plan, strategy or policy.

(3)  This clause does not apply to the extent to which it is inconsistent with any other provision of this Proclamation.

(1)  The code of conduct for the new council is to be the model code (within the meaning of section 440 of the Act) until a code of conduct is adopted by the council in accordance with the Act.

(2)  The procedure for dealing with alleged contraventions of the code of conduct is to be the model procedure (within the meaning of section 440AA of the Act) until a procedure is adopted by the new council in accordance with the Act.

(1)  A development control plan or contributions plan that applied to the whole or a part of a former area immediately before the amalgamation day continues to apply to that part of the new area that consists of the whole or part of the former area to which the plan applied.

(2)  This clause ceases to have effect when the development control plan or contributions plan is repealed.

(3)  To avoid doubt, nothing in this clause prevents the new council from amending a development control plan or contributions plan.

(1)  The operational plan of the new council is to be a composite of the operational plans adopted by the former councils for the year commencing 1 July 2016.

(2)  The day by which the new council must review its community strategic plan, following the first election for the council, is 1 July 2018.

(3)  The day by which the new council must establish a new delivery program, following the first election for the council, is 1 July 2018.

(4)  The delivery program is to be for the period commencing on 1 July 2018 and ending on 30 June 2021.

Any rates, annual charges or other fees payable to a former council in respect of any land in the area of the new council, that were not paid before the amalgamation day or for which payment is due after that day, are payable to the new council.

(1)  It does not matter that different rating structures apply to different parcels of land for the year commencing 1 July 2016 because of clause 25.

(2)  The rating structure of the new council is to be reviewed within the first term of the council following the first election of the council.

(1)  The new council’s notional general income for 2016/2017 is to be determined by adding together the amount of general income for each of the former areas in the area of the council, determined as if the amalgamation effected by this Proclamation had not taken place.

(2)  Any variation of a former council’s notional general income under Part 2 of Chapter 15 of the Act that would have been applicable, had the amalgamation effected by this Proclamation not taken place, to the determination of the amount of rates and charges for land within the new area during a particular period continues to apply to the determination of rates and charges in respect of that land, but only for the 2016/2017 rating year.

(1)  The new council is, on or before 31 December 2016, to prepare audited financial reports for a former council in respect of the period commencing on 1 July 2015 and ending at the end of the day on which this Proclamation was published on the NSW legislation website.

(2)  The new council is to prepare audited financial reports for the new council for the period commencing at the beginning of the day after this Proclamation was published on the NSW legislation website and ending at the end of 30 June 2017.

(3)  The first annual report (including the audited financial reports) of the new council is to relate to the period referred to in subclause (2) and, for that purpose, the Act and the regulations apply as if a reference to a year were a reference to the period referred to in that subclause.

(4)  Financial reports and audits of financial reports may be prepared in accordance with this clause despite any requirements of the Act relating to them.

(5)  Any report or review that is required to be carried out by the new council, and that relates to a period before the amalgamation day, may be carried out by reference to the former areas, as the case requires.

(1)  The persons who provided auditing services to the former councils immediately before the amalgamation day are taken to be appointed by the new council to be auditors of the new council, with the proportion and nature of auditing services provided to be as determined by the new council, having regard to the services provided in respect of the former councils.

(2)  This Proclamation is subject to any savings and transitional provisions made by or under Schedule 8 to the Act as a consequence of the substitution of Division 3 of Part 3 of Chapter 13 of the Act by the Local Government Amendment (Governance and Planning) Act 2016.

The initial organisation structure of the new council is, as far as practicable, to be a composite of the organisation structures of each of the former councils.

(1)  Any position that, immediately before the amalgamation day, was a senior staff position of a former council is taken to be a senior staff position of the new council.

(2)  A person who held any such senior staff position immediately before the amalgamation day is taken to be the holder of that position in the organisation structure of the new council.

(3)  This clause does not apply to a person appointed as an interim general manager or a deputy general manager by or under this Proclamation.

(4)  This clause is subject to any determination of an organisation structure by the new council.

Each member of staff (other than senior staff) of a former council immediately before the amalgamation day is transferred to the new council.

Note—

Part 6 of Chapter 11 of the Act contains provisions relating to transferred non-senior staff.

The assets, rights and liabilities of the former councils are transferred to the new council.

(1)  When any assets, rights or liabilities are transferred pursuant to this Proclamation from a former council to the new council, the following provisions have effect:

(a)  the assets of the former council vest in the new council by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,

(b)  the rights or liabilities of the former council become, by virtue of this clause, the rights or liabilities of the new council,

(c)  any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the former council or a predecessor of the former council is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the new council,

(d)  the new council has all the entitlements and obligations of the former council in relation to those assets, rights and liabilities that the former council would have had but for the transfer, whether or not those entitlements and obligations were actual or potential at the time of the transfer.

Note—

Clause 6 translates references in any instrument to former councils or areas and their predecessors.

(2)  The operation of this clause is not to be regarded:

(a)  as a breach of contract or confidence or otherwise as a civil wrong, or

(b)  as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c)  as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or

(d)  as an event of default under any contract or other instrument.

(3)  The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities. The notice is conclusive evidence of that transfer.

(4)  No attornment to the transferee by a lessee from the former council is required.

(1)  Proceedings that were instituted by or against a former council before its dissolution, or that could have been instituted by or against a former council but for its dissolution, may be continued or instituted by or against the new council.

(2)  For that purpose:

(a)  proceedings instituted by or against the former council are taken to be proceedings instituted by or against the new council, and

(b)  anything done by or in relation to the former council is taken to have been done by or in relation to the new council.

(3)  In this clause:

proceedings means criminal proceedings, civil proceedings, civil penalty proceedings or other legal proceedings (including the issue of penalty notices for alleged offences and proceedings arising out of the issue of any such penalty notice).