Anzac Day evokes a wide range of feelings with us all. I can remember the ‘clinking’ of my dad’s medals, early in the crisp April morning and I remember later in the day, sitting captivated by the endless ABC broadcast of the Sydney march. I waited for the mysteriously named ‘Second, First Pioneers’ to pass before the camera and saw dad on TV.Historically Anzac Day also has many markers, covering individual bravery and mateship, our national unity and an ongoing legend, honour in defeat, so much sadness and an important aspect of national character.Here in our beautiful municipality, we commemorate Anzac Day in Jamberoo on Saturday with a march, in Kiama with a dawn service and a march and service afterwards and in Gerringong and Gerroa with dawn services. The flags outside the Council Chambers and at Blue Haven will fly at half-mast for the day. Details of the marches and services are listed at the end of this column. I’ll be attending several of these commemorations. I served in the early seventies with The Royal Australian Artillery. The only action I saw was a rather nasty brawl in the Dubbo Golf Club. It was strange for me to feel so ‘at home’, as such a rebellious person, in such a structured group, but I did... much as I feel today being part of your council!For those who’d like to find out more about local military history, Kiama Library’s self-guided tour lets you experience what life was like in Kiama during the First World War. Using your smartphone and the Kiama Library Tours app, you can take the 2.3 kilometre WWI tour at your leisure, stopping along the way to learn about a soldier’s story or a significant site.For instance, in 1916, 2000 soldiers at a time trained at a camp set up around the Kiama showground, then a second camp opened up. All South Coast recruits were initially trained in Kiama at these camps. One the soldiers who trained here, Private Carr, left a lovely poem but sadly was never to return. He was killed in Villers Bretonneux on 23 April 1918. He has no known grave but his words live on:We’re leaving you, Kiama, for a far and distant shoreIn a week or so we’ll say goodbye. Perhaps forever moreThe glimmer from the lighthouse that the lonely sentry seesAnd the Sunday morning church parades, when we get on our kneesThe blowhole and the motor rides we had to JamberooWill always bring sweet memories I know to me and youSo au revoir, KiamaYou have treated us right wellWe’ll think of you in Flanders and we’ll think of you in hell.Anzac Day events across the MunicipalityJamberoo (Saturday 23 April) March from 10.30am from the RSL Hall Kiama (Monday 25 April) Dawn service 5am at Blowhole PointMarch 10.30am from opposite the Old Council Chambers on Manning StKiama Bowling and Recreation Club Anzac Day service from 12.15pm.Gerringong (Monday 25 April) Dawn service 6am, eastern end of Belinda Street.Gerringong Bowling Club Anzac Day service from 11am.Gerroa (Monday 25 April) Dawn service 7am, Gerroa Boat Fishermans Club

It’s 100 days since our new council was elected, and since I took over as Mayor. Now seems a good time to pause and reflect on what I’ve learnt during this latest chapter in my council career as well as consider how I will use these insights to shape the next part of our journey.Sometimes a good look back is helpful to plan the way forward.On Australia Day I prepared my first column for The Bugle. I was keen to be the Mayor and wanted to be a collaborative and listening leader of this council.We had (and still have) art in the chamber and my office. That reminds me that creativity is a significant part of what makes Kiama a better place.As February drew on, the councillors and I visited our villages and listened and you told us what you wanted for our community with our Community Strategic Plan workshops.Come March, we put our Development Control Plan for our town centre on display...another opportunity to listen. On 23 March, councillors worked together to put flesh on the bones of our Strategic Improvement Plan.We’ve come through the worst of weather, COVID lockdowns and some serious financial shocks, all with serious consequences. There may be more to come, but I am still enjoying the role, still enjoying our talented and engaged councillors and our resilient staff.Here’s what I have learned:People are what countStrategic council business aside, at the heart of any council are the people. That’s our community, our staff and the councillors. That is why from day one, I have tried to be open and sensitive to concerns about our future. There is no value in sweeping stuff under the carpet, it’s not fair to anyone.I try to listen beyond what people are saying and sometimes not saying. I try to communicate the way ahead with as much clarity as I can. I have opened up a dialogue with all our people.As I see it, people are the real asset, they are what counts and it’s my job to empower them to achieve things they didn’t think possible.Authenticity wins every timeLike most other Mayors, I have had more than the occasional moment of self-doubt. These are very natural human fears, and if we are honest with ourselves, such thoughts occur in all of us. What helps me most at times like these is the simple knowledge that we have a great CEO in Jane Stroud, great councillors and a great community.I received good advice from a former mayor to let go of who I think I need to be and be who I actually am.Fundamentally, authenticity is when you say and do what you truly believe. That is my approach and it has served me well.Local Government – where the rubber meets the roadI’ve had a lot of conversations over the last 100 days – some fascinating, many thought provoking, some very challenging, all invaluable.We are facing some rough times ahead. There comes a time when, as the Mayor, I have to cut through the noise, weigh up the options and chart a course for the road ahead.We all must develop the ability to focus on what is and isn’t important. I think we have been more open than many thought we could be. Every Sunday, I make it a rule to let all councillors know what I’ve been up to via a weekly bulletin.I speak with the unions regularly, also those in our care at Blue Haven. I speak with our auditors, with the Office of Local Government and the minister, and to other mayors.I’ve seen the work of our finance team, currently being supported by KPMG, and realise our cash flow is not terminal. Our investments are about to be realised and although the road ahead is rocky, we’ll be OK if we remain honest and inclusive.Our Strategic Improvement Plan will be addressed in the open at our next council meeting on 12 April.Some tough decisions will have to be made, but it has been a source of inspiration to me to see people’s generosity and flexibility; this will guarantee our future.

Kiama Council is progressing with strategic work to create a sustainable future and long-term financial security, with myself and the Councillors developing a Strategic Improvement Plan (SIP).We are in early but concerted development of this Strategic Improvement Plan (SIP) and have begun work on key issues outlined in the CEO’s recent “State of the Organisation” report including: financial sustainability; organisational capability, culture and performance; and risk and governance.This plan will allow us to immediately focus on what needs to be addressed to stabilise and improve our situation. The SIP will have four focus areas: finance and costs, assets, communications and staff. Different Councillors will take the lead on different focus areas to allow them to play to their strengths and ensure nothing is missed.We are taking a proactive, transparent approach to the issues our organisation is facing. We are working as a team and we’re acting without delay to do this important work.As a first step, we have engaged major accounting firm KPMG to work with our finance team and other groups including the Audit Risk and Improvement Committee (ARIC), Blue Haven Board and Finance Advisory Board, to facilitate this process.We have also recently held workshops for the Community Strategic Plan (CSP), which is a 10-year overarching plan for the Municipality that all Councils are tasked with developing in their first six months of office.The SIP differs from the CSP in that it is a working group for issues the Councillors will tackle to ensure Council’s assets and finances can get back on track.The SIP will address urgent issues that will be the foundation of our future. We will report to the community regularly on our progress and to show our strategy has clear goals and well- defined benefit.It is likely there will be significant financial challenges ahead and some tough decisions around assets that will need to be faced. However, with the SIP, I am confident we have a robust way to undertake this work as a team, one that will ensure the best outcomes for our Council and our community.I look forward to sharing further updates with you about this work, which is an important step towards our long-term stability. As always, if you’d like to get in touch with me, email: [email protected]

Lately I’ve been hitting the streets for our Community Strategic Plan (CSP) workshops with councillors and staff. The focus is on the future, and we have received excellent input from the community. Sustainability, prosperity and wellbeing appears when we listen and understand the pulse and the knowledge of our own people. When people share in defining what’s next, where to and how to get there, we create our own future.There are two other vital matters on which I request your opinions. The Town Centre Development Control Plan (DCP) and the Kiama Heritage Review, both of which are currently on exhibition on council’s website.The city centre is the heart of the LGA. It should beat with people, locals and visitors alike. Our town centre must provide for the way we want to live, with shops, shade, parks and spaces for all of us. It’s a place we should want to work, live, visit and enjoy. It’s a land mark kind of place, where what “Kiama” is should be obvious for all. It should give our community something to be proud of, a place that respects our urban values and helps define us for years ahead. I urge you to have your say at: https://www.kiama.nsw.gov.au/Council/Your-say/Kiama-Town-Centre-Study-Exhibition-DCP-ReviewWhile we head for the future, let’s not forget to protect our past: the buildings and the character that make our LGA special. The structures, sites, and homes created over the years before that speak to our dairying past, our rural roots and our seaside shacks, or sandstone beauties. The architectural foundation of how our region developed is at the core of the Heritage Review.We want that past to stand tall and proud, remain viable, be used and loved and valued for all to see. We’ve added some places and some special parts of our community. Have a look and share your views and ideas about how we are protecting our heritage for tomorrow. Have your say at: https://www.kiama.nsw.gov.au/Council/Your-say/Kiama-Heritage-Review-ExhibitionThese two documents of our town’s past and future have been developed in conjunction with experts and groups from the community. Now it’s your turn to have a look and share your views and ideas about how we are protecting our heritage today, and creating a wonderful tomorrow.Your voice is important to me, I can’t wait to read your submissions, to be informed by your views and ideas and to help shape the way of our future.You can also email me at [email protected] or give me a call on 0408 625 359.Finally, I hope you’re all well and staying dry where possible in the recent tumultuous weather. I’d like to extend my appreciation to all the council staff who have been working to close roads where needed, clear debris, do repairs and conduct our usual cleaning, maintenance and waste collection despite the tough conditions.Thanks, and stay safe everyone.

There can no better sight for a new mayor than to see a room full of diverse people, councillors, council staff and the community they serve, working in great harmony to bring about better outcomes for the place where we live! The process of developing a Community Strategic Plan (CSP) was the reason for this sight.The CSP shares the vision and aspirations for the future of Kiama and our district and sets out the community’s long-term plan.To create the CSP, we developed workshops that centre on four themes, ENVIRONMENT, COMMUNITY, FINANCE and Council SERVICES. In these workshops, we sat around tables equipped with paper, pens and enthusiasm to capture the thoughts of participants about how they would like to see our area in 3, 5 and 10 year increments.We had an artist capture the main ideas, with very detailed notes compiled by councillors and staff.This process will lead to a very high level document which will become the community’s plan for its future. Council will have a custodial role in engaging, refining and preparing the plan on behalf of its community.We live in a very special place that offers a rare blend of beautiful natural areas and excellent recreational and business opportunities. A key challenge we face is to ensure that local development and growth complements our unique character and enhances our already strong sense of place.Our new Community Strategic Plan will become the vision of those who live here, emphasising the importance of fostering a diverse economy while protecting and enhancing our natural environment.From what I have seen and heard, the community has articulated a central role for creativity and innovation. This will play a significant part in strengthening our identity as an inclusive community that harnesses new agricultural, business and recreation opportunities that adapt well to our character.The Jamberoo CSP workshopPeople have called for increased mobility and accessibility – for improving how we get around and gain access to quality services, vibrant places and inclusive events that contribute to our connectedness and sense of wellbeing.Delivering this vision is not something we can achieve in isolation. Shared decision-making and effective working partnerships with government agencies, non-government organisations, business and, of course, our community will be critical to our success.We intend to hold more of these engaging and productive workshops, attracting the ideas of our younger community and those in our care at Blue Haven.While we face a number of challenges, we must still focus on our day to day jobs as a council. I look forward to working with you all in bringing this plan to life.

In a place as beautiful as ours, it is little wonder art and artists flourish.During this council term, we will be showcasing singers, musicians and visual artists in Council Chambers to assist this thriving, creative aspect of our community.A work by Robyn Sharp in the current exhibitionOur council meetings will be enhanced by the talents of local musicians, who will start off our meetings on the right note. At our ordinary meeting on 15 February, Penny Eastlake will be playing prior to the meeting, greeting guests and also will open our proceedings. Catch this online or in person at our chambers. We plan to have a different musical act every month.You’ll also will find Council Chambers (and my office) alive with creativity, via a rotating display of artworks. Local artists have been invited to hang their work in Kiama Council’s admin building public spaces, council chambers and the Mayor’s office. Works will be on display for a period of six weeks for council staff and the community to enjoy and, if they wish, purchase. Good for eyes, the arts and our walls.A work by Ron Knott in the current exhibitionCurrently if you visit the council building, you’ll see paintings by Robyn Sharp, Helen Pain and Ron Knott gracing our walls.Robyn Sharp has been inspired to capture the natural beauty of plants around her, pure water from the escarpment, abundant wildlife of birds and animals and the tranquillity of the rainforest.Colourful works by award winning artist Helen Pain are an impressionistic treat… vibrant and alive with colour and emotion. Her talent goes beyond her art, where Helen’s leadership of the Kiama Art Society has inspired many local artists.A work by Helen Pain in the current exhibitionRon Knott is a traveller, teacher and prolific artist. His work is inspired by the environment, its colours, textures and constantly changing surfaces. I love the whimsical touches that add a dimension of delight to his work.I believe anything that engages our creative mind helps us all to communicate and feel connected. At this time, we need that!

I am very much aware of the significance that the role of mayor carries with it, so I am conscious of the crucial need to relate to the community, make myself accessible and create an environment where all of our councillors feel comfortable to do the same.My civic journey stated about 15 years or so ago, I had the privilege to help out with Meals on Wheels. It was only a couple of hours a fortnight, but I got to see some of the magnificent wisdom and skill that resided in the minds, behind closed doors in our community. I delivered frozen meals, and that was a metaphor for what I saw. Sports people, writers, doctors, actors, artists butchers and farmers shared their ideas that were frozen in their mind until they were warmed up with magic ingredient of interest, and out they poured!That was the inciting experience that made me want to represent the Kiama community as a councillor.I had qualifications in Marketing, International Relations and served with the Australian Defence Force (ADF), but I consider my real skill was, and is, curiosity. I am interested in why things are the way they are, can they be improved and what might be the consequences of change? I reckon that there is a load of great ideas, wisdom and support in our community. As a councillor, and now as a mayor, I want to use that curiosity to unlock the power of the community to help us all.As far as the mayoral role goes, I believe that in life and in the council chamber, you can’t achieve anything worthwhile alone. I want to create an elected Council that believes we should all be our best selves and work together to achieve good outcomes for the community.Being a good councillor is not just about our opinion or stance on an issue. It is about attributes, characteristics and qualities that contribute to the short-term and long-term wellbeing of the community – now and into the future.I believe there are a number of attributes a mayor should have: the ability to build relationships and be a team player, emotional maturity, approachability, critical thinking skills and a willingness to listen. I will work hard to achieve those attributes.With all this in mind, I plan to make myself directly available to hear from and speak to you, the Kiama community, throughout my term as mayor. I will let you know when I’ll be holding these open-discussion sessions via the Kiama Council website and Kimunico e-newsletter.In the meantime, you can contact me via phone or email or, once it is COVID-safe to do so, make an appointment to come and speak to me in person.https://www.kiama.nsw.gov.au/Council/Mayor-and-Councillors/Mayor-Neil-Reilly

The NSW Court of Appeal recently ruled against pet bans by owners’ corporations in their strata by-laws. In the case of Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 the NSW Court of Appeal unanimously determined that a by-law imposing a blanket prohibition on the keeping of animals in a strata scheme contravened Section 139(1) of the Strata Schemes Management Act 2015 (NSW) and was therefore invalid.Section 139 places restrictions on the types of by-laws that may be adopted by strata schemes. It states that a: “By-law cannot be unjust. A by-law must not be harsh, unconscionable or oppressive.”Such a by-law may be invalidated by the NSW Civil and Administrative Tribunal under section 150 of the Act.The matter was brought before the Tribunal by occupants (the Coopers) of the Horizon apartments in Darlinghurst who reside with their miniature schnauzer, Angus.  The Horizon owners’ corporation had adopted a by-law that imposed a ban on the keeping of animals in the complex (with the exception of assistance animals).  Proceedings were instigated after the Coopers failed to have the by-law repealed. The owners’ corporation then commenced proceedings to have Angus permanently removed from the complex.The Coopers lodged a cross-application against the owners’ corporation challenging the validity of the by-law, which ultimately lead to a Tribunal decision that the “facts do not support a conclusion that Section 139(1) has been contravened and should be declared invalid”.The Coopers appealed the Tribunal’s decision in the NSW Court of Appeal, which handed down its decision in October, 2020. The Court held that the by-law banning pets was "harsh, unconscionable, or oppressive" because “it prohibits an aspect of the use of lots in the strata plan that is an ordinary incident of the ownership of real property, namely, keeping a pet animal” and such a prohibition "could not, on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the common property”. It was said that an animal could be kept in an apartment building such as the Horizon without creating the least interference with other lot owners and a by-law which prohibits the keeping of animals “across the board without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others” is oppressive and impinges on a lot holders’ use of their real property in a respect that is unjustified.

RMB Lawyers’ Local Government Coordinator OLIVIA YEATMAN discusses the implications of an existing land use case, Saffioti v Kiama Municipal Council [2018] NSWLEC 1426, in the NSW Land and environment Court: We have recently acted for a respondent consent authority in a series of cases in the Land and Environment Court (LEC) in relation to existing use rights and the meaning of 'derogation' from an applicant’s existing use rights.  The applicant commenced Class 1 proceedings in the LEC seeking to appeal the deemed refusal of her development application by Kiama Municipal Council.  The proposed development consisted of construction of a new dwelling, including residence and garage, shed and guest sleeping pavilion, decommissioning of an existing dwelling, decommissioning of an existing dwelling and provision of asset protection zones, a wastewater treatment facility and power/communications services. The majority of the proposed development, including the new dwelling were intended to be located on that part of the land zoned E2 Environmental Conservation pursuant to Kiama Local Environmental Plan 2011 (KLEP 2011). 'Dwelling houses' were prohibited on that part of the land zoned E2 Environmental Conservation. Separate preliminary question Acting Justice Molesworth presided over the earlier judgment on the separate preliminary question and found that existing use rights applied to the proposed development in accordance with the provisions of clause 42 of the Environmental Planning and Assessment Regulation 2000. In these proceedings, Commissioner Chilcott was required to consider and come to a determination on the meaning of 'derogate' and its application to the proposed development. Derogation Sections 4.65, 4.66, 4.67 and 4.68 of the Environmental Planning and Assessment Act 1979 (EP&A Act) set out the existing use rights provisions. Specifically, section 4.67 of the EP&A Act states: (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to— (a)  the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and(b)  the change of an existing use to another use, and(c)  the enlargement or expansion or intensification of an existing use.(d)  (Repealed) (2) The provisions (in this section referred to as 'the incorporated provisions') of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development The applicant argued that section 4.67(3) of the EP&A Act should be applied such that any provision or standard of KLEP 2011 or Kiama Development Control Plan 2012 (KDCP 2012) that would have the effect of prohibiting the proposed development or presented a control that could not be satisfied should have no effect. In the alternate, the respondent argued that the provisions of KLEP 2011 and the development control plan that applied to the proposed development did not derogate from the applicant’s existing use rights as they did not prevent the applicant from making a development application. However, whilst the relevant provisions did not prevent the making of a development application, the respondent was still required to carry out an assessment of the proposed development against those relevant provisions.Outcome Commissioner Chilcott held in the respondent’s favour in relation to submissions on derogation and the case overall. In his judgement, Commissioner Chilcott concurred with the following comments of Justice Sheahan in oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47: “I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage rather than the sign structure, has existing use rights, the general approach of the council experts that any s79C assessment must be made on the sign is a new structure and currently applying controls is the correct approach.” The decision of Commissioner Chilcott was later confirmed by Chief Justice Preston in Saffioti v Kiama Municipal Council [2019] NSWLEC 57. When preparing a development application, applicants should be aware that whilst their site may enjoy existing use rights, the consent authority must undertake an assessment of the proposed development in accordance with section 4.15 (previously section 79C) of the EP&A Act. 

If you have suffered a psychological injury after the death of a close family member in an accident you could be entitled to compensation for the loss and damage you have suffered. RMB Compensation Lawyer MELISSA PACHECO explains how nervous shock claims work.For the purposes of what are commonly known as nervous shock claims, a "close family member" is defined by law to be a parent or other person with parental responsibility; spouse or partner; child, stepchild, or person for whom the victim has parental responsibility; and siblings.  Where that relationship exists, the next question to consider is whether the person bringing the claim has suffered a recognisable psychiatric illness, such as post traumatic shock disorder (PTSD), depression, anxiety, adjustment disorder and other personality disorders. Distress, grief and shock as a normal response to a particular event do not typically constitute a psychiatric illness. Your lawyer will need to seek an opinion from a medical expert that a recognised psychiatric illness exists. Without that opinion, the entire claim will fail. Negligence on the part of the wrong-doer must also be established. In a motor vehicle accident, for example, there must be fault on the part of another party or driver. The claim is then lodged against the Compulsory Third Party (CTP) insurer of that person/driver at fault.Where there is no CTP insurer, the claim is made against the Nominal Defendant. If a person gets killed in an accident at work (and they are under the care of a third party), at a public site, by a faulty product or because of failed medical treatment, that same type of claim may be available where there exists a duty of care and negligence that causes or materially contributes to a person’s psychological injury.  Such claims are governed by the Civil Liability Act 2002. Should they satisfy the relevant criteria, the person bringing the claim would be entitled to compensation for pain and suffering and past and future wage loss, medical and treatment expenses, care and domestic assistance. The Motor Accidents Injuries Act 2017 applies to legally defined motor vehicle accidents and is more restrictive in terms of what a person can claim. Statutory benefits, including income benefits and treatment expenses, are available immediately. A claim for lump sum damages may also be available, (generally two years post-accident). It also includes compensation for pain and suffering (if the impairment threshold is met) and past and future wage loss.  

Caveats may be lodged over property in certain circumstances by people who are owed money by the landowner. However, as RMB Property Lawyer Tanya Emmett explains, strict conditions apply.A caveat is a statutory injunction lodged with Land Registry Services that prevents the registration of subsequent dealings or plans on the title to the land. It acts as a warning that somebody has an interest in the land. A person who lodges a caveat on title is known as a ‘caveator’. Once a caveat is recorded on title, new dealings can only be recorded if the caveat is removed or by obtaining the caveator’s written consent. A caveat can be removed by lapsing, by court order or if it is formally withdrawn.Caveats are commonly sought to prevent the sale of land. An owner of land with a caveat recorded on its title could only complete the sale if the caveat is removed. A person owed money could use this action to demand the debt be repaid from the proceeds of sale. Caveats can be an effective way of protecting rights under an agreement and can be relatively straightforward. However, it is also easy to get it wrong.To lodge a caveat, you need to establish that you have a ‘caveatable interest’ in land – a legal or equitable (proprietary) interest. Being owed money is not of itself sufficient reason. There must be a written agreement containing a condition expressly charging the debt to the land. The Real Property Act prescribes those permitted to lodge a caveat and procedural requirements which must be satisfied before the Registrar-General will accept the lodgement of a caveat.In particular, it provides that a caveat must specify prescribed particulars of the legal or equitable estate or interest to which the caveator claims to be entitled. These include:The manner in which the estate or interest claimed is derived.Details of the nature and date of an agreement if the caveator’s claim is based on a written agreement.Details of the amount of the debt or other sum of money charged on the land. A person who lodges a caveat without a caveatable interest in the land can be made liable to pay compensation to the landowner for any loss that they suffer as a result.  A landowner can formally object to the caveat by commencing legal proceedings in the Supreme Court.

Businesses often find that clients fail to pay their invoices by the due date. RMB Specialised Commercial Lawyer, Michael Lewis, discusses the legal action businesses can take if they are having trouble with late payments.Payment of invoices in a timely manner is critical for a business and its cashflow. So what can you do when your client won’t pay an invoice?Most businesses start by sending email reminders or give the client a call to request urgent payment. They may give the client every opportunity to pay, but in return may be given every excuse under the sun why the client can’t pay now but will pay soon.We recommend that businesses or individuals engage the services of a solicitor to draft and send a letter of demand.This letter is a final demand for payment before taking legal action. It outlines the outstanding debt, specifies a timeframe in which the debt must be paid (usually 14 days) and states that where payment is not received within the timeframe specified, that the party owed money (creditor) will commence court proceedings for recovery of the debt, any legal costs and interest.We often find that a letter of demand on a solicitor’s letterhead is an effective way to convey the seriousness of the matter to the debtor and to encourage prompt payment of the debt.After having received a letter of demand the debtor may:Pay the debt in full;Request that they enter into a repayment plan; orFail to pay the debt.We highly recommend that a repayment plan be formalised through a written and signed agreement.Where a debtor fails to pay within the timeframe specified, you can commence proceedings in the local court by filing a Statement of Claim and serving it on the debtor. This outlines the details of the creditor (the plaintiff) and the debtor (the defendant). In a Statement of Claim the plaintiff must plead their cause of action and must particularise their claim.Solicitors at RMB Lawyers are skilled in preparing court documents and can assist by drafting a Statement of Claim on your behalf.Importantly, you must serve the Statement of Claim on the defendant correctly, depending on whether the debtor is an individual or a company. You should seek legal advice to determine how to validly effect service on the defendant.RMB Lawyers can assist businesses who are having issues with late payments.

A new State Environmental Planning Policy (SEPP) aims to facilitate the delivery of diverse housing that meets the needs of the State’s growing population and supports the development of a build-to-rent sector. RMB Planning Lawyer Tanya Emmett explains:The proposed Housing State Environmental Planning Policy (Housing SEPP) will consolidate three current SEPPs and update some planning provisions in response to community, council and industry concerns about the existing framework relating to seniors, social and affordable housing developments.The new SEPP also aims to streamline the planning framework and to ensure that it is well placed to encourage investment and to respond to the increasing need for social and affordable housing in NSW.Three new diverse housing types – build-to-rent housing, student housing and co-living – are being introduced to provide more housing options. The proposed changes were set out in an Explanation of Intended Effect (EIE), which was placed on exhibition between July and September last year. Key stakeholders made 270 submissions about the proposals.The proposed changes are set to be rolled out in phases with some changes to social and affordable housing provisions commencing late last year and the introduction of build-to-rent housing into the NSW planning framework commencing early this year. The balance of the reform package will be rolled out after further consultation between the State government and key stakeholder groups.Build-to-rentThe SEPP Amendment (Build-to-Rent Housing) 2021 was implemented in February. Many existing policies were amended by this SEPP to enable the introduction of this new type of housing into the current planning system. The SEPP was implemented earlier than anticipated as part of the State government’s response to the pandemic and to accelerate projects that support employment and economic development.Build-to-rent is a new housing typology that has been in place overseas for a number of years.It is purpose built residential housing, which is kept in single ownership and provides on-site professional management. The product is said to offer renters security (longer term leases) and flexibility, allowing tenants the ability to move within the same owner’s portfolio as their needs change or families grow. Build-to-rent developments focus on communal and shared amenities, with offerings varying depending on location and need.Build-to-rent developments are permissible in zones where residential flat buildings are currently allowed, as well as in commercial core and metropolitan centre zones where residential developments are not currently permitted.  

Beware of mobility scooters in shopping malls, warns RMB Compensation lawyer, Melissa Pacheco.The recent decision in Whitton v Dexus Funds Management Ltd [2019] saw a NSW shopping centre owner escape liability for injuries caused by a mobility scooter.Ms Whitton sued the owner of Deepwater Plaza Shopping Centre at Woy Woy after she was struck by an unregistered mobility scooter and suffered injuries to her back and leg and psychological injury.Ms Whitton was exiting an amenities corridor when she was struck from behind by the elderly woman driving her scooter along a main thoroughfare. Ms Whitton did not see the oncoming scooter as her view was obstructed by hoarding erected around fit out works on a shop front.This created a ‘blind corner’, also obscuring the scooter driver’s vision of Ms Whitton.The accident was captured on CCTV.Ms Whitton brought the claim against the centre alleging it breached its duty of care in failing to implement reasonable measures available to them that, if implemented, could have prevented the accident.Her expert evidence provided that such measures could have included, for example: placing warning signs indicating reduced visibility; convex mirrors; barricades or witches hats to create a safe passageway at and around the hoarding on the ‘blind corner’.One of the most important questions for the Court to consider was whether these measures would have prevented the accident from occurring.The centre’s liability expert opined that even though Ms Whitton’s peripheral vision of the oncoming scooter may have been obscured by the hoarding erected around the fit out works, the more significant factors in terms of causation included: the speed at which the mobility scooter driver was travelling, and the fact that she was in a rush and distracted the poor peripheral vision of the scooter driver that Ms Whitton was not looking in the direction of the scooter that Ms Whitton entered the scooters path of travel.In considering whether the Centre breached its duty of care owed to Ms Whitton, the Court accepted that the risk of being struck by a mobility scooter in a shopping centre was foreseeable, but found that Ms Whitton failed to prove that: the risk of harm was not insignificant; the recommended precautions would have been adopted by a reasonable person in the position of the centre and probably would have been effective.His Honour was not satisfied that causation had been established, finding that, on the balance of probabilities, even if the above mentioned measures recommended by Ms Whitton’s liability expert were in place, Ms Whitton would not have altered her course to avoid being struck by the mobility scooter. His Honour also held the view that it was not probable that a fast travelling mobility scooter would not have slowed down in an attempt to avoid colliding with a patron and hence the ultimate cause of the accident was the careless control of the mobility scooter. The Court determined that the Centre had not breached its duty of care owed to Ms Whitton, ultimately ruling in favour of the centre.In essence, the salient points to take from the decision include:patrons in shopping centres, whether pedestrians or drivers of mobility scooters, have to take reasonable care for their own safetyshopping centres are not obliged to take precautionary measures to warn patrons of ‘obvious risks’.

Nobody likes to think about a family member losing capacity and becoming unable to manage their affairs. However, as RMB Wills & Estates Lawyer MATTHEW McCULLOCH explains, there are important considerations to put in place well before that happens: Unfortunately, with dementia becoming more prevalent as people live longer, the issues associated with incapacity are becoming more evident than in previous generations. While people often put off planning what should happen if they do lose capacity, failing to consider this important aspect of estate planning before it is too late can often result in problems arising, and in the worst case, extended family conflict. In NSW, there are two important documents that deal with decisions during an individual’s lifetime if they were to become incapacitated – Powers of Attorney, which deal with financial and legal decisions and Appointments of Enduring Guardianship, which deal with health and lifestyle decisions. By having both documents in place, a person who subsequently loses capacity will clearly have granted authority to the people that they want to make decisions in their best interests. These documents should be considered well before there is any indication that someone’s capacity is potentially impaired or likely to be impaired in the future. Effectively, they are documents that can be executed with the hope that they never need to be used, however if something does happen, they clearly provide the appointed persons with authority to act. If somebody has already lost capacity to the point that they are unable to understand the effect of the documents, it will be too late for that person to prepare them. This means that nobody will have legal authority to make important decisions such as managing the person’s funds, consenting to medical treatment and finding an appropriate aged care facility to meet the individual’s needs. So what happens if you don’t have these documents in place?If a person has already lost capacity, an application needs to be made with the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for Financial Management and/or Guardianship of that individual. While in some instances the Supreme Court also has the power to hear matters with respect to financial management and guardianship, the NCAT route is generally less formal and far less expensive.  Note that NCAT only has the power to make orders about a person residing in NSW (or in the case of financial management, owns property in NSW). There is a form on the NCAT website that asks for details about the person who is the subject of the application, the various people involved in that person’s life, any people with differing views to the applicant and the reasons why the applicant believes the subject of the application needs somebody appointed as their financial manager or guardian. Generally, the applicant will also need to provide medical evidence from the impaired person’s general practitioner confirming the person is unable to manage their own affairs. Once complete, the application is then submitted to NCAT and also served on any other relevant persons. If the application is not opposed, the tribunal will normally make a determination upon review of the matter and indicate the orders that have been made with respect to financial management and/or guardianship. If however, the application is opposed by anyone, a hearing will normally be allocated before the tribunal, with each party having the opportunity to put their submissions. If the matter does proceed to a hearing, it is important to note that a person must seek leave in advance if they wish to have legal representation in the hearing, and even if this is approved, the role a lawyer can have during the proceedings is generally restricted. Ultimately, NCAT will make an order with respect to the application. It may decide that nobody needs to be appointed, appoint the applicant, appoint another person, or if they are not satisfied the person’s interests will be looked after, may appoint the NSW Trustee & Guardian to manage their affairs. A successful applicant for financial management will still need to provide annual accounts to the Trustee & Guardian and have any management plans approved. Making an application to NCAT can be a daunting process. Even in straightforward matters, the process that needs to be followed can add stress to an already difficult time when a loved one is unable to function in the way they used to be able to. We therefore encourage clients to consider appointing attorneys and guardians as part of their estate planning while they are fully capable, so as to avoid this process becoming necessary. It also gives them confidence that they have the most appropriate people to look after them if they become unable to do things for themselves later in life.

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