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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Local Government Legislation Amendment
(Environmental Upgrade Agreements) Bill 2014
TABLE OF PROVISIONS
Clause Page
1 Purposes 1
2 Commencement 2
3 Definitions 2
4 New Division 2A inserted in Part 8 2
Division 2A--Environmental upgrade agreements 2
181A Environmental upgrade agreement 2
181B Conditions to be met before Council may enter into
environmental upgrade agreement 3
181C Environmental upgrade charge 6
181D Environmental upgrade agreement provisions 8
181E Liability of Council to recover environmental upgrade
charge 10
181F Other responsibilities of Council 11
181G Quarterly statement 11
181H Delegation to CEO 12
181I Guidelines 12
181J Environmental upgrade agreements and charges
under City of Melbourne Act 2001 13
5 Repeal of Part 4B of the City of Melbourne Act 2001 15
6 Repeal of amending Act 16
ENDNOTES 17
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PARLIAMENT OF VICTORIA
Introduced in the Council
Local Government Legislation
Amendment (Environmental Upgrade
Agreements) Bill 2014
A Bill for an Act to amend the Local Government Act 1989 and the
City of Melbourne Act 2001 and for other purposes.
The Parliament of Victoria enacts:
1 Purposes
The purposes of this Act are--
(a) to amend the Local Government Act 1989
to enable Councils, including the City of
5 Melbourne, to enter into environmental
upgrade agreements; and
(b) to amend the City of Melbourne Act 2001
to remove provisions relating to
environmental upgrade agreements as a
10 consequence of the amendments being made
to the Local Government Act 1989 which
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s. 2
will enable all Councils to enter into
environmental upgrade agreements.
2 Commencement
(1) Subject to subsection (2), this Act comes into
5 operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 June 2015, it comes into
operation on that day.
3 Definitions
10 See:
Act No.
Insert the following definitions in section 3(1) of
11/1989. the Local Government Act 1989--
Reprint No. 12
as at "environmental upgrade agreement means an
22 July 2013
and
agreement entered into in accordance with
amending section 181A;
Act Nos
15 30/2013, environmental upgrade charge means a charge
67/2013,
5/2014, declared under section 181C;
17/2014 and
37/2014. lending body means the person who advances
LawToday: funds under the environmental upgrade
www.
legislation. agreement;
vic.gov.au
20 primary parties, in relation to an environmental
upgrade agreement, means a Council, the
lending body and the owner of the rateable
land;".
4 New Division 2A inserted in Part 8
25 After Division 2 of Part 8 of the Local
Government Act 1989 insert--
'Division 2A--Environmental upgrade
agreements
181A Environmental upgrade agreement
30 (1) Subject to section 181B, the primary parties
may enter into an environmental upgrade
agreement in respect of rateable land, with
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s. 3
an existing building on it, that is entirely or
predominately used for non-residential
purposes, to fund works that improve the
energy, water or environmental efficiency or
5 sustainability of the building on that rateable
land.
(2) By agreement of the primary parties to an
environmental upgrade agreement, the
environmental upgrade agreement may also
10 be entered into by any other person that the
primary parties consider should be a party to
the environmental upgrade agreement.
(3) In addition to any provisions agreed to by the
primary parties and any other parties to an
15 environmental upgrade agreement, an
environmental upgrade agreement must
comply with, and provide for, the matters
specified in section 181D(1) to (3).
181B Conditions to be met before Council may
20 enter into environmental upgrade
agreement
(1) A Council must not enter into an
environmental upgrade agreement unless--
(a) the Council receives a statutory
25 declaration from the owner of the
rateable land, at least 28 days before the
agreement is entered into, in
accordance with subsection (4); and
(b) each occupier, that would be liable to
30 pay for all or part of any environmental
upgrade charge levied as a consequence
of an environmental upgrade agreement
being entered into, is provided with a
statement specifying the following--
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(i) the total amount of the payments
that the occupier would be
required to pay;
(ii) a repayment schedule that details
5 when the occupier's liability
would become payable and, if the
occupier's liability can be paid by
instalment, the amount of each
instalment and the timing of each
10 instalment;
(iii) that the occupier may consent or
object, in writing, to the
imposition of the environmental
upgrade charge in the manner set
15 out in the statement; and
(c) each occupier that has received a
statement under paragraph (b) has
consented to the imposition of the
environmental upgrade charge in the
20 manner set out in the statement; and
(d) the total amount of taxes, rates, charges
and mortgages owing on the rateable
land and specified in a notice from the
owner under subsection (3) when added
25 to the total value of the environmental
upgrade charges as set out in the
proposed agreement is an amount that
does not exceed the capital improved
value of the land prior to any works that
30 would be undertaken as part of the
agreement.
(2) The owner who intends to be a primary party
to the environmental upgrade agreement
must advise, in writing, any existing
35 mortgagee in respect of the rateable land to
which the agreement will apply--
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(a) that the owner intends to enter into an
environmental upgrade agreement; and
(b) of the details of all environmental
upgrade charges that are expected to be
5 declared by a Council in respect of the
rateable land under the environmental
upgrade agreement.
(3) The owner who intends to be a primary party
to the environmental upgrade agreement is
10 further required to give a Council notice of
the following details (in writing) in respect
of the rateable land to which the agreement
will apply--
(a) details of all registered and unregistered
15 mortgages over the rateable land
including--
(i) the total amount owing in respect
of each mortgage; or
(ii) if a relevant mortgage is held
20 against 2 or more properties
including the rateable land, the
proportion of the debt secured by
the mortgage that applies to the
rateable land calculated in
25 accordance with subsection (5);
(b) details of all taxes, rates and charges
owing on the rateable land (including
the total amount owing in respect of
each tax, rate or charge) imposed by or
30 under an Act.
(4) The details given by an owner to a Council
under subsection (3) must be accompanied
by a statutory declaration signed by, or on
behalf of, the owner stating--
35 (a) that the owner has complied with
subsection (2); and
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(b) that the details given to the Council
under subsection (3) are accurate and
complete.
(5) For the purposes of subsection (3)(a)(ii), the
5 proportion of the debt secured by the
mortgage that applies to the rateable land
must be calculated by distributing the debt
between all the properties against which the
mortgage is held in proportion to the relative
10 capital improved values of the properties.
(6) In this section--
existing mortgagee, in respect of rateable
land to which an environmental
upgrade agreement will apply, means
15 any holder of a mortgage for that land,
whether registered or unregistered.
181C Environmental upgrade charge
(1) After entering into an environmental upgrade
agreement a Council must, in accordance
20 with the conditions of that agreement,
declare an environmental upgrade charge or
2 or more environmental upgrade charges
(as the case requires) in respect of the
rateable land that is the subject of the
25 agreement.
(2) A Council must levy an environmental
upgrade charge by sending a notice to the
person liable to pay it.
(3) A notice under subsection (2) must specify--
30 (a) the name and address of the person
liable to pay the charge; and
(b) a description of the rateable land in
respect of which the charge is being
levied; and
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(c) the environmental upgrade agreement
under which the charge is levied; and
(d) the amount for which the person
specified in the notice is liable; and
5 (e) the manner of payment; and
(f) the penalties that may apply if the
person fails to pay the charge.
(4) An environmental upgrade charge is due and
must be paid by the date specified in the
10 notice requiring payment, which is a date not
less than 28 days after the date of issue of a
notice.
(5) An environmental upgrade charge must be
the agreed amount specified in the relevant
15 environmental upgrade agreement.
(6) Divisions 1, 2 and 3, other than sections 154,
156, 172, 175, 177, 178, 180 and 181, do not
apply to an environmental upgrade charge.
(7) For the purposes of this Division,
20 section 172(1) applies as if for
paragraph (b) there were substituted--
"(b) which have not been paid by the date
specified in the repayment schedule to
the environmental upgrade agreement.".
25 (8) Despite anything to the contrary in this Act,
the total amount of an environmental
upgrade charge received by a Council from
an owner or any occupier or both (as the case
requires) must be used by the Council to
30 make repayments to the lending body in
accordance with the environmental upgrade
agreement.
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(9) For the purposes of subsection (8), the total
amount of an environmental upgrade charge
received by a Council and to be paid to the
lending body does not include--
5 (a) the proportion of the charge that
accounts for the administrative costs of
the Council as specified in the
environmental upgrade agreement; and
(b) any penalty interest imposed by the
10 Council on an owner or any occupier or
both (as the case requires) as a
consequence of nonpayment of the
environmental upgrade charge.
Note
15 However, see section 181D(4)(b) which allows an
environmental upgrade agreement to make provision
for a Council to provide a proportion of any penalty
interest received by the Council to the lending body.
(10) If land for which an environmental upgrade
20 charge has been levied ceases to be rateable
land, the owner or any occupier or both
(as the case requires) must, despite the land
no longer being rateable, continue to pay the
charge in accordance with the schedule of
25 repayments specified in the environmental
upgrade agreement.
181D Environmental upgrade agreement
provisions
(1) An environmental upgrade agreement
30 must--
(a) be in writing; and
(b) outline the works to be undertaken on
the rateable land of the owner.
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(2) An environmental upgrade agreement must
contain provisions that provide for the
lending body advancing funds to an owner
on the following conditions--
5 (a) that the owner use the funds advanced
to conduct works on the rateable land
for the purposes of the environmental
upgrade agreement;
(b) that the owner or any occupier or both
10 the owner and any occupiers (as the
case requires) pay the environmental
upgrade charge or charges levied by a
Council in respect of the rateable land
to which the agreement applies;
15 (c) that a Council uses the funds received
under the environmental upgrade
charge or charges to repay the lending
body the principal amount initially
advanced to the owner plus any agreed
20 interest accrued since that advance.
(3) An environmental upgrade agreement must
specify the following--
(a) the total amount being advanced by the
lending body under the agreement;
25 (b) the total amount of each environmental
upgrade charge to be levied under the
agreement;
(c) the repayment schedule in respect of
each environmental upgrade charge to
30 be levied by a Council in accordance
with the agreement;
(d) the total amount of the environmental
upgrade charges to be declared by a
Council under section 181C in
35 accordance with the agreement;
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(e) the total amount of any Council
administration costs to be included as
part of the environmental upgrade
charge or charges.
5 (4) An environmental upgrade agreement may
provide the following--
(a) that an amount, in addition to any other
liabilities a party may have under the
agreement, may be payable by a party if
10 a party to the agreement fails to comply
with the agreement;
(b) that, in the event of nonpayment of an
environmental upgrade charge by the
owner or any occupiers, if a Council
15 imposes penalty interest rates on the
owner or any occupiers as a
consequence of that nonpayment, the
Council may provide a proportion of
that penalty interest to the lending
20 body.
(5) A provision of an environmental upgrade
agreement must not be contrary to this
Division.
181E Liability of Council to recover
25 environmental upgrade charge
(1) Subject to subsections (2) and (3), a Council
must use its best endeavours to recover an
environmental upgrade charge in accordance
with any requirements imposed on it by this
30 Act and an environmental upgrade
agreement.
(2) A Council is not liable for any failure by an
owner or any occupier or an owner and any
occupier (as the case requires) to pay an
35 environmental upgrade charge or charges.
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(3) A failure by an owner or any occupier or an
owner and any occupier (as the case
requires) under subsection (2) does not make
the Council liable to pay the outstanding
5 amount under the environmental upgrade
charge or charges to the lending body.
181F Other responsibilities of Council
(1) If an environmental upgrade agreement is
terminated before all the funds that the
10 lending body agreed to advance to the owner
are advanced, a Council must--
(a) adjust the environmental upgrade
charge or charges to reflect the lower
amount advanced to the owner; and
15 (b) by written notice, advise any person
liable to pay the environmental upgrade
charge of the adjustment.
(2) If, as a consequence of an adjustment being
made to an environmental upgrade charge
20 under subsection (1), an owner or any
occupier has made payments under the
environmental upgrade charge in excess of
the adjusted amount, a Council must refund
the excess amount paid to the owner or
25 occupier or the owner and the occupier (as
the case may be).
181G Quarterly statement
The Chief Executive Officer must ensure
that a statement prepared under section 138
30 includes a record of the following--
(a) each environmental upgrade agreement
entered into in the last quarter, and the
rateable land to which the agreement
relates;
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s. 3
(b) each environmental upgrade charge
approved in respect of the agreements
referred to in paragraph (a), and the
value of the charges;
5 (c) the total number of environmental
upgrade charges in operation in the last
quarter;
(d) the total value of all environmental
upgrade charge payments that have
10 fallen due and have not been paid;
(e) the total value of all environmental
upgrade charge payments that are yet to
fall due.
181H Delegation to CEO
15 (1) A Council may, by instrument of delegation,
delegate to the Chief Executive Officer the
following powers--
(a) to enter into an environmental upgrade
agreement on behalf of the Council;
20 (b) to declare and levy an environmental
upgrade charge.
(2) The Chief Executive Officer must not
delegate the power delegated to the Chief
Executive Officer under subsection (1) to
25 any other person.
181I Guidelines
(1) The Minister administering the Victorian
Energy Efficiency Target Act 2007 may
make guidelines for the purposes of this
30 Division including in relation to the
following matters--
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(a) the specification of works that are
likely to be considered as improving the
energy, water or environmental
efficiency or sustainability of a building
5 for the purposes of entering into an
environmental upgrade agreement;
(b) the specification of matters that should
be considered by a Council before
deciding to offer environmental
10 upgrade agreements;
(c) environmental upgrade agreement
provisions that may be incorporated
into any environmental upgrade
agreement;
15 (d) the provision of reports by a Council to
the public in relation to the
commencement, progress or completion
of any works funded by an
environmental upgrade agreement.
20 (2) Before making guidelines under this section,
the Minister administering the Victorian
Energy Efficiency Target Act 2007 must
consult with the Minister administering this
Act.
25 (3) Guidelines made under this section--
(a) must be published in the Government
Gazette; and
(b) may be published on the Internet.
181J Environmental upgrade agreements and
30 charges under City of Melbourne Act
2001
(1) Any environmental upgrade agreement that
was entered into under Part 4B of the City of
Melbourne Act 2001 and that was in force
35 immediately before the repeal of that Part--
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s. 3
(a) continues in force as if it had been
entered into under this Division; and
(b) is taken to be an environmental upgrade
agreement under this Division.
5 (2) For the avoidance of doubt, the repeal of
Part 4B of the City of Melbourne Act 2001
and the re-enactment of that Part in this
Division, is not to be considered as a change
of law for the purposes of any environmental
10 upgrade agreement entered into under that
Part before its repeal.
(3) Any environmental upgrade charge that was
declared and levied by the City of Melbourne
under Part 4B of the City of Melbourne Act
15 2001 and that was due and payable
immediately before the repeal of that Part--
(a) continues to be due and payable as if it
had been declared and levied under this
Division; and
20 (b) is taken to be an environmental upgrade
charge under this Division.
(4) Without limiting the operation of any
provisions of the Interpretation of
Legislation Act 1984 relating to repeal
25 and re-enactment, a provision of Part 4B of
the City of Melbourne Act 2001 specified
in Column 1 of the Table is taken to be
re-enacted (with or without modifications)
by the provision of this Act appearing
30 opposite in Column 2 of the Table.
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Local Government Legislation Amendment (Environmental Upgrade
Agreements) Bill 2014
s. 5
Column 1 Column 2
Provision of Part 4B of
the City of Melbourne
Act 2001 Provision of this Act
Section 27L Definitions of
environmental upgrade
agreement,
environmental upgrade
charge, lending body
and primary parties in
section 3(1)
Section 27M Section 181A
Section 27N Section 181B
Section 27O Section 181C
Section 27P Section 181D
Section 27Q(1) Section 181E(2) and (3)
Section 27Q(2) and (3) Section 181F
Section 27R Section 181G
Section 27S Section 181H
'.
5 Repeal of Part 4B of the City of Melbourne Act 2001 See:
Act No.
5/2001.
Part 4B of the City of Melbourne Act 2001 is Reprint No. 2
repealed. as at
31 October
2012.
LawToday:
www.
legislation.
vic.gov.au
571535B.I-5/8/2014 15 BILL LC INTRODUCTION 5/8/2014
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s. 6
6 Repeal of amending Act
This Act is repealed on 1 June 2016.
Note
The repeal of this Act does not affect the continuing operation of
5 the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Agreements) Bill 2014
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
571535B.I-5/8/2014 17 BILL LC INTRODUCTION 5/8/2014
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