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2018-08-07 S&O Agenda - Att 1 to Item 7 - Public Interest Test Report
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Att 1 to Item 7
Services and Organisation
Committee Meeting Agenda
7 August 2018
PUBLIC INTEREST TEST REPORT
ADMINISTRATION AND OTHER LOCAL LAWS (AMENDMENT) LOCAL LAW
(NO. 1) 2018 AND ADMINISTRATION AND OTHER SUBORDINATE LOCAL
LAWS (AMENDMENT) SUBORDINATE LOCAL LAW (NO. 1) 2018
A public interest test has been conducted as part of the National Competition Policy reforms on anti-
competitive provisions identified in the local law and subordinate local law identified in schedule 1.
The public interest test has been conducted against the principles and objectives set by the
Competition Principles Agreement which were outlined in the public interest test plan.
The public interest test report has been prepared in accordance with guidelines issued by the
Department of Local Government and called up by regulation under the Local Government Act 2009.
RESULTS OF CONSULTATION PROCESS
Consultation with the public and key stakeholders occurred over a three week period. An
advertisement was placed in the local paper at the commencement of the consultation period advising
of the review and calling for submissions. Notices were posted on notice boards within the local
government area during the consultation period. Direct notification of the review was sent to all key
stakeholders.
As a result of the public consultation process, Council received 4 written submissions, which all related
to the proposed regulation of parking within the Noosa National Park Carparks. A summary of those
submissions is outlined below.
Submission received Summary
Submission one Delighted if Council could stop people parking at Noosa Heads
National Park carpark. However, the carpark should not be physically
closed / locked all night.
A few short stay parks might be useful but having all parks limited to a
maximum of 2 hours would be inadequate for:
(a) A walk through the park via Hells Gate;
(b) Catching waves as they need to be shared with other surfers;
(c) A picnic followed by a walk for a family with children.
Submission two Overnight campers dominating car parks has become excessive and
limits the use by locals.
An overnight ban from 10:00pm to 4:00am could be effective.
Supporting a 4 hour daytime parking limit to prevent tourist camper
vans dominating the car parking for the entire day.
Submission three The decision to regulate parking in the National Park areas should be
applauded. A time limit of 3 to 4 hours would be appropriate to allow
time needed to walk, enjoy a surf or a swim.
Council should also consider limiting parking time for the streets
around Little Cove such as Alderly, Pandanus, Mitti and Kereela.
Residents could be supported by providing a vehicle specific exemption
certificate.
Submission four The proposal for regulate the National Park carparks has a lot of merit.
Getting the time limits right will be key to ensuring the community is not
unfairly disadvantaged. To ensure the location is suitable for day-trips
and extended walks, any restriction to parking should be no less than 6
hours.
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
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Section 2
POSITIVE AND NEGATIVE IMPACTS ON STAKEHOLDERS FROM MOVING TO ALTERNATIVES
Positive and negative impacts on stakeholders from moving to alternatives are particularised in the
schedules to this report as follows:-
Installation of Advertising Devices — See Schedule 2
Operation of Accommodation Parks — See Schedule 3
Operation of Shared Facility Accommodation — See Schedule 4
SUMMARY OF NET IMPACTS ASSOCIATED WITH ALTERNATIVES
An analysis of the costs and benefits of moving to an identified alternative is detailed in the following
schedules.
Installation of Advertising Devices — See Schedule 2
Operation of Accommodation Parks — See Schedule 3
Operation of Shared Facility Accommodation — See Schedule 4
PUBLIC INTEREST TEST REPORT RECOMMENDATION
For each prescribed activity, each possible anti-competitive provision reviewed is an anti-competitive
provision and should be retained in its current form in the public interest.
SCHEDULE 1 — LOCAL LAW AND SUBORDINATE LOCAL LAW IN WHICH POSSIBLE ANTI-
COMPETITIVE PROVISIONS IDENTIFIED
Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and
other Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018
STATE ENTITES CONSULTED
List of state entities consulted about Administration and Other Local Laws (Amendment) Local Law
(No. 1) 2018 and Administration and other Subordinate Local Laws (Amendment) Subordinate Local
Law (No. 1) 2018 – See Schedule 5
PUBLIC INTEREST TEST PLAN
A copy of the Public Interest Test Plan signed by the CEO 27 April 2018 – See Schedule 6.
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 3
SCHEDULE 2 — INSTALLATION OF ADVERTISING DEVICES
POSITIVE AND NEGATIVE IMPACTS ON STAKEHOLDERS FROM MOVING TO ALTERNATIVE
Conservation Interest Groups Community/ Consumers/ Home Existing and Potential Government
owners Business
Details of Impacts Details of Impacts Details of Impacts Details of Impacts
Potential impact from non- Potential increase of costs Increased risk of non-compliance
negative compliance will result in a associated with ensuring that by business when exhibiting
decrease in quality of life from erected signs specifically comply advertising.
impacts visual pollution it is expected to with local government standards. Council has no control over the
have a moderate impact on the This increase in costs is not initial design and construction of
community and a moderate expected to be significant over physical advertising. An
impact on home owners residing the life of the business. Overall increased level of risk will be
in business areas. (-3) the impact is expected to be borne by Council in non-
moderate. (- 3) compliance. For advertising in
the community the magnitude of
non-compliance may be
moderate. Overall, the impact is
moderate. (-3)
Decrease in level of safety Potential for deterioration of Establishment costs - change in
provided to community because relationships between business local law so that the definition of
of a decrease in the quality and local government. permitted advertisement includes
standard of physical advertising. Local government action against all classifications and attending
This will have a low impact on the business for non-compliance - criteria for approving/rejecting
community overall and a business resisting action applications which currently exist,
moderate impact on home because structure is already built. and thereby includes those
owners near advertising and Though this impact is only a advertisements in negative
members of the public working potential impact, it is expected to licensing regime. These costs
near signs. (-1) increase in importance over the occur once and are not material
longer term, therefore it is to the overall costs of local
considered to be a moderate government. For this reason the
impact. (-3) impact is considered low. (-1)
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 4
Conservation Interest Groups Community/ Consumers/ Home Existing and Potential Government
owners Business
Details of Impacts Details of Impacts Details of Impacts Details of Impacts
Increase in responsibility for Reduction in application and
business to comply with penalty fee revenue. Fees
standards. received is immaterial to the
Business will now have the overall revenue received by local
responsibility for complying with government. Local government
the standards set in the local law, does not rely on revenue
whereas previously local received from such fees in
government ensured compliance operations and is considered
through the permit regime. The surplus to local government
onus of responsibility now resides needs. The impact will be
with business and is therefore moderate. (-3)
considered to be a moderate
impact. (-3)
Potential for misuse of
environment.
There is potential for business to
abuse accepted environmental
standards. It is expected that this
will not occur and is considered a
low impact. (- 1)
Reduction in paperwork and time Reduction in processing
positive from removal of applications requires the
application/approval process. restructuring of staff duties and
impacts Business will no longer have to time. The decrease in time spent
pay application fees or lose time approving applications will be
waiting for permits to be applied to the inspection of
approved. advertising. Some job redesign
will be necessary and is therefore
The impact is considered low. (-
a moderate impact. (-3)
1)
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 5
DETERMINE NET COMMUNITY BENEFIT
In summary comparison of the alternatives provides the following information:
Alternative Government Business Community/ Conservationists
Consumers
Negative Moderate Moderate Moderate No Impact
licensing Negative Impact Negative Impact Negative Impact
There are no
Current existing The increased risk Removal of the The risk of non- changes in the
local law is a of non-compliance restriction on compliance will level of
combination of and potential for advertising results result in a environmental
negative licensing damaged in a transfer of decrease in protection.
and permits. The relationships responsibility in environmental
alternative is to between parties environmental and public
convert the permit far outweighs any management to health/safety
process to benefit received business and an standards. This
become part of the from reducing increase in the outweighs any
negative licensing application level of risk in non- benefits to the
process. processing compliance. The stakeholders in
requirements. standard of removing
advertising will restrictions on
A financial loss remain, the only advertising.
would result. benefit being a
monetary/time
reduction in
application
process.
The regulatory alternative of full negative licensing regulation is not expected to result in an overall
benefit to the community. The current local law ensures that the community will not pay costs
associated with exhibiting advertising in certain places resulting in increased visual pollution and
decrease in public health and safety standards. Businesses are still able to compete effectively in the
market with the imposition of existing restrictions.
The level of restriction on competition under the current regulatory arrangement is low compared with
the impacts under the alternative arrangement. Full negative licensing is not considered a viable
alternative because of the increased risk associated with non-compliance. The current local law only
requires application and approval for the exhibition of advertisement in cases where the public health
and safety and visual pollution aspects are highest. In other cases, advertisements are governed by a
negative licensing regime.
Overall, while the provisions reviewed are clearly anti-competitive the benefits to the community of
retaining them outweigh the costs and provide the most appropriate way of achieving the objectives of
the local law.
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 6
SCHEDULE 3 — OPERATION OF ACCOMMODATION PARKS
POSITIVE AND NEGATIVE IMPACTS ON STAKEHOLDERS FROM MOVING TO ALTERNATIVE
Negative licensing
Stakeholders Impacts Weighting
Council Council would be impacted by having to implement a new regulatory system ie. amend local law, Low negative (-1)
educate staff, accommodation park operators and community etc.
Saving in administration costs through not having to process permit applications. Low positive (+1)
Loss of fees. Low negative (-1)
Loss of flexibility and control in regulating accommodation parks ie. loss of ability to set site specific Moderate negative (-3)
conditions and loss of ability to cancel or suspend a permit. Overall - Moderate
negative
Existing accommodation Reduction in “red tape” (no requirement to renew permit) may result in reduced operating costs. Low positive (+1)
park operators
Heavier fines for non-compliance. Low negative (-1)
Overall - Neutral
Potential accommodation Removal of barrier to entry for operators. Low positive (+1)
park operators
Heavier fines for non-compliance. Low negative (-1)
Overall - Neutral
Accommodation park Possible decrease in standards resulting from Council’s loss of discretionary power to refuse permit Low negative (-1)
occupants applications to operate accommodation parks and loss of ability to set site specific conditions.
Lower prices if operational savings passed on. Low positive (+1)
Greater consumer choice and product differentiation through increased competition. Low positive (+1)
Overall - Low positive
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 7
Stakeholders Impacts Weighting
General community and Possible decrease in amenity and increase in nuisances resulting from Council’s loss of discretionary Low negative (-1)
residents living in close power to refuse permit applications to operate accommodation parks and loss of ability to set site
proximity to specific conditions. Overall - Low negative
accommodation parks
Qld Caravan Park Association may be called on to play a greater role in setting standards for the operation of Low positive (+1)
Owners Association accommodation parks.
Overall - Low positive
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 8
SUMMARY OF NET IMPACTS ASSOCIATED WITH ALTERNATIVE
Negative licensing
Council Existing Potential Accommodation General Qld Caravan
accommodation accommodation park occupants community Park Owners
park operators park operators and Association
residents
Moderate Neutral impact Neutral impact Low positive Low Low positive
negative impact impact negative impact
Reduction in “red Removal of impact
Council would tape” is offset by barrier to entry is Possible Association
lose the ability to the risk of offset by risk decrease in Possible may be called
set site specific heavier fines for heavier fines for standards is decrease in on to play a
conditions and to non-compliance. non-compliance. balanced by amenity and greater role in
cancel permits. However, However, greater consumer increase in setting
maximum fines maximum fines choice and lower nuisances. standards for
are rarely are rarely prices. the operation of
awarded by the awarded by the accommodation
courts, so overall courts, so overall parks.
impact lends impact lends
towards being towards being
positive. positive.
Overall, the analysis of costs and benefits has determined there would be a net cost in moving to a
negative licensing regime. Benefits accrue to a number of stakeholder groups, viz: accommodation park
occupants and the Qld Caravan Park Owners Association. A neutral outcome has been determined for
existing and potential accommodation park operators. However, a low negative impact has been
determined for the general community and residents living in close proximity to accommodation parks
and a moderate negative impact has been assessed for the Council.
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 9
SCHEDULE 4 — OPERATION OF SHARED FACILITY ACCOMMODATION
POSITIVE AND NEGATIVE IMPACTS ON STAKEHOLDERS FROM MOVING TO ALTERNATIVE
Co-regulation
Stakeholder Impact Weighting
Local Developing new local law - consulting with stakeholders, negotiating standards for new local law. Low negative -1
government
Implementing/establishing new local law - ie. amending or replacing existing local law, training staff, advising industry Low negative -1
etc.
A reduction in administrative and/or enforcement requirements is likely to result from agreement between Council Moderate positive +2
and industry. Compliance is more likely because those affected by the local law are involved in its development -
Council is likely to receive less complaints.
Overall - Neutral
Existing Better relations with Council through local law development process ie. Council will have a better understanding and Low positive +1
operators appreciation of problems the business sector faces.
More appropriate standards in new local law. Low positive +1
Overall - Low positive
Potential Better relations with Council through local law development process ie. Council will have a better understanding and Low positive +1
operators appreciation of problems the business sector faces.
More appropriate standards in new local law. Low positive +1
Overall - Low positive
Residents/ Better outcomes for residents through being able to input into the development of a new local law. Low positive +1
tenants
Overall - Low positive
Immediate Better outcomes for residents through being able to input into the development of a new local law. Low positive +1
neighbours
Overall - Low positive
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 10
Stakeholder Impact Weighting
Tourist There is potential for an increase in business as a result of agreement between stakeholders. That is, less Low positive +1
operators complaints/problems in the business sector, a good reputation for the business sector should result and be a boost
to tourism in the local government area. Overall - Low positive
Pensioner’ Establishment of links with operators and Council. Low positive +1
representative
bodies Overall - Low positive
Backpackers’ Establishment of links with operators and Council. Low positive +1
Association
Overall - Low positive
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 11
Negative licensing
Stakeholder Impact Weighting
Local Development and implementation of new regulatory regime. Low negative -1
government
Loss of fees to cover administrative costs. Low negative -1
Reduction in administrative processes, ie. no permit applications. Low positive +1
Possibility of lack of knowledge of when new operators enter the market. Low negative -1
Loss of ability to set site specific conditions - may result in lowering of standards and as a result increase complaints. Low negative -1
Also, to change the standards, the local law will need to be amended, whereas under the permit system Council
could simply change the conditions in a permit.
Low positive +1
Higher fines.
Overall - Low negative
Existing Reduction in operating costs ie. no permit renewal applications required and no fees. Low positive +1
operators
Increase in competition through removal of barrier to entry. Low negative -1
Higher fines for non-compliance. Low negative -1
Standards apply to all operators equally. Low positive +1
Greater onus on operators to ensure compliance with standards in local law. Low negative -1
Overall - Low negative
Potential Removal of barrier to entry. Low positive +1
operators
Rules are know prior to entry. Low positive +1
Higher fines for non-compliance. Low negative -1
Greater onus on operators to ensure compliance with standards in local law. Low negative -1
Overall - Neutral
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 12
Stakeholder Impact Weighting
Residents/ Possibility of decrease in standards due to loss of Council power to assess operators prior to entering the market Low negative -1
tenants and loss of power to set site specific conditions.
Potential for improved service, lower prices and greater differentiation between service providers as a result of Low positive +1
greater competition from removal of the barrier to entry to the market.
Overall - Neutral
Immediate Possibility of decrease in amenity due to loss of Council power to set site specific conditions. Low negative -1
neighbours
Overall - Low negative
Tourist Removal of barrier to entry should be a boost to competition in the market and impact in a positive way on tourist Low positive +1
operators operators.
Overall - Low positive
Pensioners’ As Council approval is removed (ie. no permit required) the representative bodies may become the focus of any Low negative -1
representative complaints from residents/tenants.
bodies Overall - Low negative
Backpackers’ As Council approval is removed (ie. no permit required) the Association may become the focus of any complaints Low negative -1
Association from residents/tenants.
Overall - Low negative
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 13
SUMMARY OF NET IMPACTS ASSOCIATED WITH ALTERNATIVES
In summary, analysis of the alternatives provides the following information:
Co-regulation
Local Existing Potential Residents/ Immediate Tourist Pensioners’ Backpackers’
government operators operators tenants neighbours operators representative Association
bodies
Neutral Low positive Low positive Low positive Low positive Low positive Low positive Low positive
impact impact impact impact impact impact impact
Overall the impact
is neutral. While Overall the impact Overall the impact Residents may Residents may There is potential Benefits may Benefits may
there are costs on existing on existing benefit from the benefit from the for local tourism result from result from
involved in operators would operators would opportunity to opportunity to industry to gain a involvement in involvement in
establishing a new be positive. be positive. input into input into benefit from better process of process of
system, the long Benefits should Benefits should development of development of relations between developing new developing new
term benefits may flow from the flow from the new local law. new local law. stakeholders. local law. local law.
outweigh these opportunity to opportunity to
costs. develop a new develop a new
local law in local law in
consultation with consultation with
other other
stakeholders. stakeholders.
Overall, the analysis of costs and benefits has determined there would be a negligible net benefit in moving to a co-regulation regime. There would be some
costs initially in developing and implementing a new local law. Long term benefits may accrue from the process of bringing stakeholders together to develop
the new local law such as, establishment of links between stakeholders and fostering better relations between stakeholders, greater compliance by operators
and reduced administration for Council.
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 14
Negative licensing
Local Existing Potential Residents/tenants Immediate Tourist Pensioners’ Backpackers’
government operators operators neighbours operators representative Association
bodies
Low negative Low negative Neutral Neutral Low negative Low positive Low negative Low negative
impact impact impact impact impact impact
Some benefits A small reduction Potential Two scenarios are Potential for a Tourism industry Potential for an Potential for an
accrue from in operating costs operators benefit possible. On one decrease in should benefit increase in increase in
reduction in would result from from removal of hand standards amenity through greater complaints from complaints from
administrative removal of fees barrier to entry could decline through loss of competition in the residents. residents.
burden but these but this is offset and knowledge of through removal of Council power market.
are offset by the by higher fines for “rules” prior to Council in assessing to set site
potential for non-compliance entry. However, new operators prior specific
increased and a greater higher fines apply to entering the conditions.
complaints and onus on operators for non- market and loss of
loss of fees. to ensure compliance and power to set site
compliance. there is a greater specific conditions.
onus on operators On the other hand,
to ensure residents could
compliance. benefit from
increased
competition in the
market with
improved
product/service,
greater choice and
differentiation
between providers
Overall, the analysis of costs and benefits has determined there would be a net cost in moving to a negative licensing regime. While some benefits would
accrue to operators, these are offset by higher fines for non-compliance. Other stakeholder groups would be negatively impacted as a result of loss of Council
power to set site specific conditions.
Summary and conclusions
The analysis has showed that there would be a net cost to the community in moving to a negative licensing regime. This alternative is not viable and should
be set aside.
The analysis has also determined there would be only a limited benefit to the community as a whole in moving to a co-regulation regime.
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 15
SCHEDULE 5 — List of State Entities Consulted
Department of Aboriginal and Torres Strait Islander Partnerships
Department of Agriculture and Fisheries
Department of Communities, Child Safety and Disability Services
Department of Education and Training
Department of Energy and Water Supply
Department of Environment and Heritage Protection
Department of Health
Department of Housing and Public Works
Department of Justice and Attorney-General
Department of Infrastructure, Local Government and Planning
Department of National Parks, Sport and Racing
Department of Natural Resources and Mines
Department of Science, Information Technology and Innovation
Department of State Development
Department of the Premier and Cabinet
Department of Tourism, Major Events, Small Business and the Commonwealth Games
Public Safety Business Agency
Queensland Rail Limited
Queensland Treasury
Office of the Health Ombudsman
Queensland Fire and Emergency Services
Office of the Inspector General Emergency Management
Office of the Energy and Water Ombudsman Queensland
Queensland Police Service
Electoral Commission of Queensland
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ATTACHMENT 1 PIT Report - Administration LL SLL 2018
Section 16
Schedule 6 - Public Interest Test Plan
PUBLIC INTEREST TEST PLAN
ADMINISTRATION AND OTHER LOCAL LAWS (AMENDMENT) LOCAL LAW
(NO. 1) 2018 AND ADMINISTRATION AND OTHER SUBORDINATE LOCAL
LAWS (AMENDMENT) SUBORDINATE LOCAL LAW (NO. 1) 2018
INTRODUCTION
As part of the National Competition Policy reforms, Council is conducting a public interest test on
possible anti-competitive provisions identified in Administration and Other Local Laws (Amendment)
Local Law (No. 1) 2018 and Administration and Other Subordinate Local Laws (Amendment)
Subordinate Local Law (No. 1) 2018. The public interest test will be conducted against the principles
and objectives set by the Competition Principles Agreement (CPA).
Under clause 5(1) of the CPA, all governments agreed to the principle that legislation should not
restrict competition unless it can be demonstrated that:
the benefits of the restriction to the community as a whole outweigh the costs; and
the objectives of the legislation can only be achieved by restricting competition.
In reviewing legislation that restricts competition, clause 5(9) of the CPA requires that the review
should:
clarify the objectives of the legislation;
identify the nature of the restriction on competition;
analyse the likely effect of the restriction on competition and on the economy generally;
assess and balance the costs and benefits of the restriction; and
consider alternative means of achieving the same result including non-legislative approaches.
Without limiting the matters to be taken into account in a review Clause 1(3) of the CPA sets out
matters which should be taken into account, as follows:
government legislation and policies relating to ecologically sustainable development;
social welfare and equity considerations, including community service obligations;
government legislation and policies relating to matters such as occupational health and
safety, industrial relations and access and equity;
economic and regional development, including employment and investment growth;
the interests of consumers generally or of a class of consumers;
the competitiveness of Australian businesses; and
the efficient allocation of resources.
This public interest test plan has been prepared in accordance with guidelines issued by the
Queensland Department of Local Government and called up by regulation under the Local
Government Act 2009 to provide a basis for community consultation. The plan details activities to be
conducted during the test and identifies the depth of analysis to be carried out on the possible anti-
competitive provisions.
PURPOSE OF THE LOCAL LAW AND THE SUBORDINATE LOCAL LAW
The purpose of the proposed local law and the proposed subordinate local law identified in Schedule
1 are specified in the local law and subordinate local law copies of which are available for inspection
with this public interest test plan.
Section 17
Public Interest Test Plan — Noosa Shire Council
Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and Other
Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018 Page 2
POSSIBLE ANTI-COMPETITIVE PROVISIONS
The possible anti-competitive provisions in each of the local law and the subordinate local law
identified in schedule 1 are also identified in Schedule 1.
CURRENT ENVIRONMENT
Installation of Advertising Devices — See Schedule 2
Operation of Accommodation Parks — See Schedule 3
Operation of Shared Facility Accommodation — See Schedule 4
TYPE OF ASSESSMENT AND LEVEL OF RESOURCES REQUIRED
The assessment of the anti-competitive provisions in each of the local law and the subordinate local
law will be conducted as a minor review. The emphasis will be on qualitative analysis of alternatives
with key impacts expressed in monetary terms where data is available.
The review will be conducted in-house by a team of officers.
EXTENT OF CONSULTATION TO BE CONDUCTED
Consultation will be conducted by giving public notice of the review in the local newspaper and inviting
submissions. Public notices will also be posted on all public notice boards in the Council Chambers.
The public notice will also advise that the consultation on anti-competitive provisions is being
conducted with the public consultation for the proposed local law and subordinate local law.
Council will consult with existing commercial operators advising of the review and seeking comment.
The public interest test plan will be open to inspection at the Council’s public office and available for
purchase.
TIME-FRAME FOR CONDUCTING THE PUBLIC INTEREST TEST
Commence public interest test 27 April 2018
Estimate of time for completing public interest 2 months including consultation period:
test
Consultation period 4 weeks (28 days)
Target date for presenting report to local The Council meeting to be convened by Council 3
government months after the commencement of the public
interest test.
CONTENT OF THE PUBLIC INTEREST TEST REPORT
The public interest test report will provide:
A summary of the consultation process including a list of affected groups consulted and the
outcomes of consultation
A statement of alternatives which are assessed to be not viable
A summary of the positive and negative impacts associated with the alternatives compared to
the existing environment
A summary of the net impacts (positive or negative) associated with the alternatives
Recommendations
Section 18
Public Interest Test Plan — Noosa Shire Council
Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and Other
Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018 Page 3
PUBLIC INTEREST TEST PLAN APPROVAL
This decision has been delegated by Council to the Chief Executive Officer. The Local Government
Act 2009 allows this decision to be delegated by Council. Council will not delegate any decision in
respect of recommendations contained in the actual public interest test report.
Prepared by: ....................................................................................... Date: 27 / 4 /2018.
Brett de Chastel
Chief Executive Officer
Section 19
Public Interest Test Plan — Noosa Shire Council
Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and Other
Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018 Page 4
Schedule 1 Identification of Local Law and Subordinate Local Law
Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018
Local Law, sections 5 and 6 (Amendment of schedule 1 and schedule 2)
Administration and Other Subordinate Local Laws (Amendment) Subordinate Local Law
(No. 1) 2018
Subordinate Local Law, section 9 (Amendment of schedule 10)
Subordinate Local Law, section 11 (Amendment of schedule 13)
Subordinate Local Law, section 12 (Insertion of new schedule 13 – Operation of Shared Facility
Accommodation)
Section 20
Public Interest Test Plan — Noosa Shire Council
Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and Other
Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018 Page 5
Schedule 2 Current Environment – Installation of Advertising Devices
CURRENT ENVIRONMENT
The business environment may fail to operate competitively by not including in the product/service
cost, the impact that the categories of signs identified in the proposed subordinate local law have on
public safety and on the local amenity/environment. To ensure business includes these costs, the
regulation of the prescribed activity in the subordinate local law is proposed. The objective is to
ensure the minimum standard the community has regarding safety and visual pollution is maintained.
Without the restriction, costs would be imposed on the community when essentially they should be
included as part of the original transaction between business and consumers. The costs potentially
imposed are a decrease in public safety and an increase in visual pollution.
Public safety is maintained by:
regulating the structural integrity of advertising signs by specifying materials, dimensions,
maintenance, positioning and construction; and
ensuring structures do not obstruct or detract vehicular and pedestrian traffic.
Amenity standards are maintained by:
prescribing the dimensions of the signs to ensure they bear a reasonable relationship with the
surrounding environment and do not unreasonably obstruct existing views; and
the advertisement is consistent, in colour, character and appearance with the environment.
The anti-competitive provision restricting the exhibition of signs is generally restrictive and impacts on
business activities.
CONFIRM IDENTIFIED PROVISIONS ARE ANTI-COMPETITIVE
The sections are confirmed as anti-competitive and no errors in analysis were made in the
identification stage.
REALISTIC REGULATORY AND NON-REGULATORY ALTERNATIVES TO THE PROPOSED
LOCAL LAW AND SUBORDINATE LOCAL LAW
The objective of regulating the prescribed activity to the extent specified in proposed subordinate local
law is to ensure an adequate standard of safety and environmental protection is maintained. The
local law and the subordinate local law achieve this using a combination of conventional and negative
licensing. Some form of government intervention is required to ensure that signs displayed meet the
standards expected by the community and in meeting these standards that the onus of cost is on
business and not the community.
The market is unable to self regulate or impose restrictions due to lack of solidarity within the market
(there is no specific industry) and no common business theme or interest to create dependence
between businesses.
By meeting the objective detailed above, the local law and the proposed subordinate local law do not
induce strongly anti-competitive conduct in the market place or confer monopoly powers on a
business. Considering the need to monitor the exhibition of signs for quality and environmental
reasons, other types of intervention which are considered realistic are:
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Negative licensing was considered to be a viable alternative at this stage. Negative
licensing is a system whereby participants can enter the market if they meet the standards or
“rules” set for the particular business activity. There is no requirement to first obtain a permit
or similar approval. There is, therefore, no barrier to entry to the market. Under a negative
licensing regime, the local law would need to be changed to remove the requirement to hold a
licence and prescribe a range of generic standards or “rules”. Of necessity, the standards will
need to be output standards as opposed to specifying how to meet the output. The local law
could retain offences and penalties for non-compliance.
Under the pure model of negative licensing, no fees are paid and no permits are issued.
However, the penalties for non-compliance are high and should be applied immediately.
Some uncertainty exists as to whether large penalties can be obtained due to the inability to
set minimum penalties in local laws (only maximum penalties can be set in local laws) and the
tendency of judges to apply small fines, particularly for first offences.
Community empowerment - Local government would act as facilitator rather than regulator
of signs. No regulation would exist for exhibition of signs with the exception of signs on public
land or in areas covered by state legislation. Information guidelines would be produced for
businesses when producing signs, but these would not be enforced.
In assessing the viability of the realistic alternatives, Council considers community empowerment to
be non-viable. The community empowerment alternative fails to provide voluntary compliance by
business to a minimum level of environmental and public safety standards. Over time, the level of
information and interest in maintaining these standards is expected to erode. Council considers the
benefits enjoyed by ensuring some level of environmental and quality standard far outweigh the
benefits given to business under a system of voluntary compliance.
KEY STAKEHOLDERS AFFECTED BY THE CURRENT SITUATION AND BY A MOVE TO
ALTERNATIVE ARRANGEMENTS
The following stakeholders have been identified:
Stakeholders/broad impacts Impact rating and rationale
Local Government
Council is impacted because of the change in its Moderate - Only requires implementation of new
activities which would result under the new changes to local law. But will have an impact on
regulatory arrangement. staff duties.
Business - Existing and Potential
Existing and potential business are impacted Medium - The number of businesses dependent
because of changes in regulation about the on this type of advertising is high. The affect on
exhibition of signage which is displayed for each business is low.
business purposes.
Consumers
Consumers are impacted by display of signage Low - Consumers are impacted by changes that
and the content of the signage displayed. the display of signage has on price.
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Stakeholders/broad impacts Impact rating and rationale
Home owners
Home owners are impacted because of the Low - Only impacts on a small number of total
potential to decrease the monetary and aesthetic home owners.
value of their homes.
Conservationists
Conservationists have an interest in any changes Low - Only impacts on how environmental
to environmental protection laws. standards are enforced not the level of
enforcement.
Section 23
Public Interest Test Plan — Noosa Shire Council Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and Other Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018 Page 8 Schedule 3 Current Environment — Operation of Accommodation Parks CURRENT ENVIRONMENT The proposed local law and the proposed subordinate local law provide that a person must not carry on the business of operating an accommodation park without an approval issued by Council under the local law. The granting of an approval is subject to Council being satisfied being satisfied the operation and management of the accommodation park will comply with the criteria laid down under the proposed subordinate local law. In granting an approval, Council may impose conditions relating to the conduct of the business activity which the operator must comply with. Conditions can, for example, impose limits on the number of persons to be accommodated on a site, require the operator to maintain buffer zones and require the provision of adequate amenities. However, conditions imposed in an approval must be consistent with any statutory authorisation or approval for the establishment of the accommodation park. The approval regime established under the local law is directed at a business activity - the operation of an accommodation park. In its conferring of a discretion as to the grant of an approval and to the content of conditions to which an approval issued will be subject, the approval regime imposes both a barrier to entry to a particular market and a restriction on competitive conduct within the market. Other provisions dealing with regulating the conduct of the business are also anti-competitive, such as the requirement to keep a register detailing activities of the operation of an accommodation park. Council considers that some form of local government control or regulation over the “operation” of accommodation parks is necessary to safeguard public health and safety, protect the amenity of the local area and to minimise nuisances. Further, it is considered that, without the local law in place business has the potential to operate without proper regard to adequate standards of health, safety and amenity. In doing so, the resultant costs from environmental damage, loss of amenity, public health and safety risks and loss of quality of life through nuisances, would be born by third parties rather than being included in the transaction between business and consumers. CONFIRM SECTIONS ARE ANTI-COMPETITIVE The sections are confirmed as anti-competitive and no errors in analysis were made in the identification stage. REGULATORY AND NON-REGULATORY ALTERNATIVES TO THE PROPOSED LOCAL LAW AND SUBORDINATE LOCAL LAW The objectives of the prescribed activity are achieved by using a conventional approval based system, whereby, upon application to Council, persons are granted approvals to conduct the business of an accommodation park subject to conditions. Regulatory and non-regulatory alternatives to the approval system include: No regulation Self-regulation Co-regulation Public information and education programs Economic incentives Industry accreditation
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Master licensing
Negative licensing
Empowering consumers
Further information on each type of alternative is provided in the Department of Local Government
guidelines on conducting public interests tests.
As stated earlier, Council believes that some form of local government regulation or control is required
to ensure that accommodation parks are properly operated and maintained. It is therefore considered
that there are no non-regulatory alternatives which are viable. Given the need to monitor operations
in accommodation parks Council considers there is only one regulatory alternative which is a realistic
option - negative licensing.
Negative licensing - Under a negative licensing regime there is no requirement to first obtain an
approval to enter the market. The presumption in this regime is that an operator is prepared to play
by the “rules” if they know what they are. No approval is required and no fees are paid. Other
characteristics of a negative licensing regime include:
notification that an operator is in a particular line of business is “collected” during the course
of day-to-day business, rather than prior to commencement;
operators are charged a token fee for certification that their operations comply with standards;
operators who wilfully fail to comply are fined heavily and immediately - the greater the
breach, the greater the fine;
the rules/requirements are published periodically, together with details about the availability of
training;
consumers are educated as well as operators;
complaints are responded to swiftly and forcefully.
Changes Required to Local Law under a Negative Licensing System and Implications:
Under a negative licensing regime, the local law would need to be amended to remove the
requirement for operators to obtain an approval before operating an accommodation park and to set
generic conditions which would apply to the operation of all accommodation parks (in place of
individual approval conditions) in the local government area. The opportunity to set site specific
conditions would thus be removed.
As a consequence, if Council wanted subsequently to change the generic conditions, the local law
would need to be amended. Under the approval system, Council could change the conditions
imposed in an approval either with the agreement of the operator or after giving written notice. It is
considered the impact of this loss would be medium. As well as setting generic conditions, the local
law could be amended to include a requirement for operators to comply with any conditions placed on
the development application establishing the accommodation park.
The opportunity to vet approval applications and the discretionary power to reject them if Council is
not satisfied the operation of the accommodation park can comply with criteria laid down under the
subordinate local law, would be removed. However, the local law could be amended to require
written notification be given to Council when new operators and managers take over the operation or
management of an accommodation park. This would be in line with the negative licensing model.
Council could still issue compliance notices but the power to suspend or cancel an approval for failure
to comply with a compliance notice would be removed. However, heavier fines apply under a
negative licensing system to ensure compliance with the “rules”. The local law would need to be
amended to provide for heavier fines for non-compliance. Additionally, the local law could be
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amended to give Council the power to issue a “stop order” for failure to comply with a compliance
notice.
Under a negative licensing system, Council would be able to have work carried out and seek to
recover damages if an operator does not comply with a compliance notice.
Council may suffer a financial loss through the loss of approval fees under a negative licensing
regime. However, this loss may be offset by charging an annual inspection fee. This is consistent
with charging a nominal fee for certification that operations comply with the “standards” under the
negative licensing model. The heavier fines for non-compliance would be offset by much larger legal
costs in enforcing compliance with the generic local laws.
In summary, the main impacts on Council from moving to a negative licensing regime would be a loss
of ability to set site specific conditions, loss of discretionary powers as to the grant of an approval and
the expenditure of legal costs in enforcing compliance.
KEY STAKEHOLDERS AFFECTED BY CHANGES TO THE LOCAL LAW AND SUBORDINATE
LOCAL LAW
The following stakeholders and broad impacts have been identified by a move to a negative licensing
regime
Stakeholders / broad impacts Impact rating and rationale
Council
Council would be impacted by having to Low negative - mostly a once off impact but
implement a new regulatory system ie. amend some ongoing impacts with requirement for
local law, educate staff, accommodation park periodic training and publication of “rules”.
operators and community etc.
Moderate negative - costs can be substantial.
Loss of flexibility and control in regulating
accommodation parks ie. loss of ability to set site
specific conditions and loss of ability to cancel or
suspend an approval.
Low positive - saving not estimated to be large
Incurring legal costs in enforcement
Low negative - loss not substantial
Saving in administration costs through not having
to process approval applications.
Loss of fees.
Existing accommodation park operators
Reduction in “red tape” (ie. no requirement to Low positive - reduction in costs would be
renew approval) and therefore reduction in minimal.
operating costs.
Low negative - large fines not always given by
Heavier fines for non-compliance. court.
Potential accommodation park operators
Removal of barrier to entry for operators. Low positive - In practice, Council did not reject
approval applications or renewals, therefore it is
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Stakeholders / broad impacts Impact rating and rationale
considered that this impact would be low.
NB: Local law now relates only to the operation
of an accommodation park and not
establishment.
Low negative - large fines not always given by
Heavier fines for non-compliance. court.
Accommodation park occupants
Possible decrease in standards resulting from Low negative - generic conditions and
Council’s loss of discretionary power to refuse conditions of development approval will apply.
approval applications to operate accommodation
parks and loss of ability to set site specific Low positive - any price reduction likely to be
conditions. minimal.
Lower costs if operational savings passed on. Low positive - currently market is saturated and
growth not likely to be significant.
Greater consumer choice and product
differentiation through increased competition.
General community and residents living in
close proximity to accommodation parks
Possible decrease in amenity and increase in Low negative - generic conditions and
nuisances resulting from Council’s loss of conditions of development approval will apply.
discretionary power to refuse approval Council can also use its powers under its other
applications to operate accommodation parks and local laws to address nuisance problems.
loss of ability to set site specific conditions.
Qld Accommodation Park Owners Association
Association may be called on to play a greater Low positive – degree of impact uncertain.
role in setting standards for the operation of
accommodation parks.
Section 27
Public Interest Test Plan — Noosa Shire Council Administration and Other Local Laws (Amendment) Local Law (No. 1) 2018 and Administration and Other Subordinate Local Laws (Amendment) Subordinate Local Law (No. 1) 2018 Page 12 Schedule 4 Current Environment — Operation of Shared Facility Accommodation CURRENT ENVIRONMENT The current local law and the proposed subordinate local law provide that a person must not carry on the prescribed activity at rental accommodation to which the local law applies unless they hold an approval issued by Council under the local law. Certain types of accommodation may be excluded from application of the local law by Council by subordinate local law. Council may grant an approval if satisfied the premises can be lawfully used, that they do not pose a health or safety risk and are consistent with any conditions prescribed in a subordinate local law and, after taking into account a range of other factors. The Council has discretion in the granting of approvals and can place conditions on approvals. For example, a condition could limit the number of people for whom the accommodation can be provided or require the regular cleaning of the premises. Additionally, a subordinate local law may prescribe conditions which must be or will ordinarily be applied on approvals. Under the enforcement provisions of the local law, Council has the power to inspect premises, issue compliance notices where non-compliance is found, have work carried out and seek to recover the costs following non-compliance with a notice. Council has the power to close premises for non- compliance following issue of a notice or where premises are operating without an approval. Council also has the power to close premises summarily if the premises pose a serious risk to health or safety. Without the local law, the proposed subordinate local law and the prescribed activity in place, the business of providing rental accommodation to which the local law applies could operate without proper regard to standards of health, safety and amenity. The local law and the proposed subordinate local law will have a slight affect on the size of businesses and their participation in the market. It will affect the consumer price or cost of production/operations and will place restrictions on business behaviour and product/service quality. The local law and the proposed subordinate local law will have little affect on business distribution, ownership, structure or form. CONFIRM SECTIONS ARE ANTI-COMPETITIVE The sections are confirmed as anti-competitive and no errors in analysis were made in the identification stage. REALISTIC REGULATORY AND NON-REGULATORY ALTERNATIVES TO THE LOCAL LAW AND THE PROPOSED SUBORDINATE LOCAL LAW Regulatory and non-regulatory alternatives which may achieve the purpose of regulation of the prescribed activity under the local law and the proposed subordinate local law include the following: Regulation Co-regulation Market/industry self-regulation No regulation Public information and education programs Economic incentives
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Industry accreditation
Master licensing
Negative licensing
Empowering consumers
Of the above, two alternatives were chosen for further consideration. These were:
Co-regulation
Negative licensing
Co-regulation - The legal instruments and administrative arrangements involved with co-regulation
are much the same as with local government regulation. The difference is that the “rules” are drafted
in close consultation and cooperation with affected parties. The advantages of this approach is that a
higher level of compliance with the rules can be expected because those who are affected by the
rules have agreed to them.
Under a co-regulation regime the local law would be redrafted in consultation with the current
approval holders and other stakeholders.
Negative licensing - Under conventional licensing regimes there is usually a requirement to obtain
an approval or similar approval prior to entering the market to engage in a particular business activity.
Under a negative licensing regime there is no requirement to first obtain an approval to enter the
market. The presumption in this regime is that operators are prepared to play by the rules if they
know what the rules are. No approval is required and no fees are paid. Other characteristics of a
negative licensing regime include:
notification that an operator is in a particular line of business is “collected” during the course
of day-to-day business, rather than prior to commencement;
operators are charged a token fee for certification that their operations comply with standards;
operators who wilfully fail to comply are fined heavily and immediately;
the rules/requirements and details about the availability of training are published periodically;
consumers are educated as well as operators;
complaints are responded to swiftly and forcefully.
Under a negative licensing regime the local law would be amended to remove the requirement to hold
an approval to carry on the business of the prescribed activity. The local law would specify a range of
generic standards which must be complied with in relation to the conduct of the business and set
penalties for non-compliance with the standards. A small fee would be charged for certification that
premises comply with the standards set by the local law. The local law would retain the current
enforcement framework with any necessary amendments.
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KEY STAKEHOLDERS AFFECTED BY THE CURRENT SITUATION AND BY A MOVE TO
ALTERNATIVE ARRANGEMENTS
The following stakeholders and broad impacts have been identified in respect of each alternative.
Co-regulation
Stakeholders/broad impacts Impact rating and rationale
Local government
Council is impacted because of the change in its Low negative - Only requires implementation of
activities which would result under the new changes to local law.
regulatory arrangement.
Existing operators
Participation in developing new local law - Low positive – Impact likely to be positive but
opportunity to influence outcome. degree of impact uncertain.
Implementing any necessary changes to meet Low negative - There is likely to be some costs
new standards. associated with change but degree of impact
uncertain.
Potential operators
Participation in developing new local law - Low positive - Impact likely to be positive but
opportunity to influence outcome. degree of impact uncertain.
Residents/guests/tenants
Participation in developing new local law - Low positive - Impact likely to be positive but
opportunity to influence outcome. degree of impact uncertain.
Immediate neighbours
Participation in developing new local law - Low positive - Impact likely to be positive but
opportunity to influence outcome. degree of impact uncertain.
Tourist operators
Agreement between Council and business on Low positive - Any increase not likely to be
local law is likely to have a positive effect on huge.
tourism ie. increased trade.
Tenants/Pensioners’ representative bodies
Participation in developing new local law -
opportunity to influence outcome. Low positive - Impact likely to be positive but
degree of impact uncertain.
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Stakeholders/broad impacts Impact rating and rationale
Travellers’ representative bodies
Participation in developing new local law - Low positive - Impact likely to be positive but
opportunity to influence outcome. degree of impact uncertain.
Negative licensing
Stakeholders/broad impacts Impact rating and rationale
Local government
Council is impacted because of the change in its Low negative - Only requires implementation of
activities which would result under the new changes to local law.
regulatory arrangement.
Existing operators
No approval renewal applications required. Low positive - Cost saving would be minimal.
Potential operators
Removal of barrier to entry. Low positive - Rated low because, while
approvals previously required,
Council did not refuse to grant an approval
where applications were consistent with local
law. Therefore barrier to entry was nominal.
Residents/guests/tenants
Some uncertainty as to what impacts might be. Low negative - Rated low as uncertain as to
Under this regime Council would not have the degree of impacts.
ability to set specific conditions associated with
individual premises.
For example, Council would not be able to specify
that certain equipment be provided for tenants in
relation to premises providing accommodation for
the elderly, such as hand rails and other safety
devices unless these are written in the local law.
Immediate neighbours
As with residents/tenants stakeholder group, Low negative - Degree of impact uncertain.
immediate neighbours may be negatively
impacted through inability of Council to set site
specific conditions but again degree of impacts
uncertain.
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Stakeholders/broad impacts Impact rating and rationale
Tourist operators
Removal of barrier to entry should be a boost to Low positive - Degree of impact uncertain.
competition in the market and impact in a positive
way on tourist operators.
Tenants’/Pensioners’ representative bodies
Because Council is not able to set site specific
conditions there may be increased requirement to Low negative - Degree of impact uncertain.
represent tenants to operators and/or Council.
Travellers’ Associations
Because Council is not able to set site specific Low negative - Degree of impact uncertain.
conditions there may be increased requirement to
represent guests to operators and/or Council.
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