Fast tracking funding for Council Projects: information from Wallmans Lawyers

Current as of 31 March 2020


The South Australian Government is to fund works to mitigate the community and economic effects of COVID-19.

 

The Local Government sector is ideally positioned to aid in stimulus efforts, with projects that are at, or nearing ‘shovel ready’ status.

The South Australian Government has doubled its Planning and Development Fund in 2020 to $50 million, working alongside local government to help fast track funding and support local jobs and businesses. The Planning and Development Fund is to (among other things) provide “assistance to Councils in the provision and development of public land for conservation and recreation”.

Projects will be considered for funding when matched with a local government contribution on a 50:50 basis.

The current grant round has been extended until 9 April 2020, to give councils additional time to submit shovel ready projects for funding. Please refer to link below for guidelines and application process.

https://www.saplanningportal.sa.gov.au/current_planning_system/strategic_planning/open_space
and_public_realm_investment

The South Australian Government has cited project examples including revitalisation of reserves and parks, coastal reserves, trails and open space linkages, foreshore and riverfront precincts, civic plazas, town squares and main streets.

Council projects may also qualify for Commonwealth stimulus and infrastructure funding, with new measures being regularly announced.

With the current deadline for submission only a week away, is your Council ready?

Below are some things to think about in order to capture funding.

What works?

We expect works of a kind or scale that require a Council to engage industry, rather than Council's own staff, will be most attractive to funders.

Those works might be:

  • scheduled for FY 2021 but can be brought forward
  • the subject of grant applications pending
  • the subject of grant applications previously rejected
  • simply on a 'wish-list'

Planning approvals & environmental considerations

While works such as roadworks do not require a Council to obtain a development authorisation, some other types of works will. When preparing your grant application, it is important to keep in mind that development authorisation may still be required.

Under the Development Act 1993 certain works are not included in the definition of Development and thereby do not require development consent. Many of those exemptions are continuing under the Planning Development and Infrastructure Act 2016.

The exemptions that apply include certain development in recreation areas. A recreation area is defined in Schedule 1 of the Development Regulations 2008 and includes, “any park, garden, children’s playground or sports ground that is under the care, control and management of the Crown, or a council, and is open to the public without payment of a charge, but does not include a stadium”.

The types of work that are exempt from requiring development authorisation are set out under Schedule 3 of the Regulations and, to summarise, include:

  • the construction of recreation areas
  • construction of new buildings in recreation areas that are under a prescribed floor area 
  • alterations and additions to existing buildings in recreation areas that are under a prescribed floor area
  • the placement, installation or construction of playground equipment in a recreation area.

Other forms of development in recreation areas that may require development authorisation may also include tree damaging activity to a regulated tree or a regulated and significant tree.

Other considerations include whether the subject land is or could be contaminated land (usually from historical past use) and whether appropriate measures have been put in place to manage that contamination and/or notify the Environment Protection Authority, if required.

Commercial matters

  • If the costs of works would, or could, exceed the funding limit, is Council prepared to fund the shortfall from its own resources?
  • If works would create a Council-owned asset, does Council have an understanding of 'whole of life costs'?
  • Would Council need to engage a consultant to act as 'superintendent of works', because Council staff are already fully occupied?
  • If the design of the works is incomplete (say, only at 75%), should Council nevertheless have a contractor start those works?
  • Should Council use 'early contractor involvement' so as to assure buildability of the works?

Governance considerations

  • What effect would the works have on Council's strategic management plans under section 122 of the Local Government Act 1999?
  • Would works on 'community land' require an amendment to the management plan under s. 198 of the Act?
  • Would Council's policies and procedures for contracts and tenders under s. 49 of the Act accommodate expedited works – e.g, could Council use a select request for tender?
  • Should Council engage an external probity adviser for a request for tenders?
  • Do the elected members' delegations under s. 44 of the Act allow the CEO or other delegate sufficient authority to issue and manage an expedited contract?

The Wallmans team is ready to assist Councils in maximising opportunities to attract external funding and effectively manage projects. You can contact them via this link.