Incorporation is a voluntary, simple and inexpensive means of establishing a legal entity, separate from the individual members. It is an alternative to forming, for example: a company limited by a guarantee, or co-operative.
It is particularly suitable for small, community-based groups. In other words, the association is considered by law to have a distinct identity that continues despite changes to its membership.
Incorporated Associations are not profit organizations. Any profits made should be kept by the association and should not used by members for personal gain.
Incorporation is a system of registration that gives an association certain legal advantages in return for accepting certain legal responsibilities.
- have their own corporate identity
- can sue and be sued
- can enter contracts
- appoint committees to run affairs
- provide documents for a public register.
Learn more about incorporated associations on the Consumer Victoria website.
Being auspiced by an incorporated organisation is a way for unincorporated groups to get funding. This means that the auspicing organisation receives the money on behalf of the unincorporated group and is responsible for making sure the project is completed and the money is accounted for (acquitted). Often community houses will auspice a community garden.
Committee of Management
A committee/working group needs to be established at the very beginning of the project. You will need at least five members, but ten is optimal. You will need to allocate roles at the start so that people have defined positions and everyone shares the responsibilities. You can find out all about starting up a Committee at Consumer Affairs Victoria.
Public liability insurance protects your association if a person is injured, or their property is damaged, due to an incident on the association’s property or the association’s actions.
Public liability insurance is compulsory if the association owns or leases land, or holds land in trust.
Your association’s management committee must assess the association’s situation and decide how much insurance it needs, if any.
Management committees are legally required to:
- review insurance requirements each year and report the results at the annual general meeting
- tell members the risks if the management committee decides not to take out public liability insurance
- tell people applying to be members, and nominees for election to the management committee, whether the association has public liability insurance and how much coverage
- tell any person or entity who the association deals with if it does not have public liability insurance.
If an association decides not to take out adequate public liability insurance, it needs to be aware of the risks, including that:
- businesses may refuse to deal with the association
- the association’s assets may be at risk if someone makes a claim.
While the Associations Incorporation Act 1981 gives some protection to an association’s members for liability, this protection may not be absolute.
For example: if the association is found to be negligent in its actions, a court may find the association liable.
Seek professional advice about your association’s individual situation and needs.
Contact the Royal Horticultural Society for insurance.
It is a good idea to start working on a plan outlining intended operations as soon as possible this will eventually become your Business Plan. It will be an invaluable document in every step of the Community Garden Process. An amended version will be needed for the planning application and for the land allocation process.
The plan should contain the following:
- An overview: this is a description of who you are, what you want to achieve and how you plan to get there.
- A statement of purpose: this is your mission statement and vision for the future.
- Community consultation progress the date: this is a brief statement of who will be involved in the garden: stakeholders, community groups, members of the public, schools etc.
- Key points opportunities: this sets out the guiding principles of your Community Garden: organic, artistic, open to all, education resource for children etc.
- Garden management: having clear guidelines and policies, capable administrative processes, and effective management systems in place will allow your garden to function smoothly and to grow.
- Garden operation and design: a brief outline of how you have come up with your design and how you will maintain the site. Some items you may like to include are: What water sources you will use, and how you will maintain this supply. How you plan to design the garden for all to use and enjoy, and that you will follow access guidelines for the design. Waste management Garden bed construction and materials, elevations and colours of sheds and out buildings. What you want to garden to look and feel like.
- Budget: Where will the money come from and how you are going to ensure the ongoing viability of the garden. This may include: grant applications, donations, membership monies, marketing ideas etc.
The development of new Community Gardens on any land, applicants will need to address the site selection criteria and follow the procedure for starting a new community garden.
At a minimum the selection of a site for a community garden should include, but not limited to, the following criteria:
- Accessibility: Sites should be accessible for a range of user groups. That is they should be located close to public transport, walking and cycling tracks, allow disabled access, have vehicle access and accommodate groups wanting to visit the garden.
- Location: A site selection process in conjunction with the relevant land management agency(s); priority given to sites located in high density areas and near community centres or community organisations where infrastructure is already in place (water, car parking, public toilets, shelter)
- Safety: Sites should have no major safety or health concerns; and have good passive surveillance of user groups. That is they should be located close to public transport, walking and cycling tracks, allow disabled access, have vehicle access and accommodate groups wanting to visit the garden.
- Soil and site conditions: Sites need to have good sun exposure, drainage and uncontaminated soil.
- Water: Sites need to have access to water and water security addressed by the installation of water tanks from nearby buildings where possible.
- Heritage, planning and environmental overlays: Site needs to be free of any heritage, planning or environmental overlays.
- Multiple use: Site where a community garden can be integrated without conflicting with other land uses and can still be used by non gardeners for passive recreation and educational workshops.
- Security: If site is on Council owned land fencing would need to be consistent with guidelines as set out by the City.
- Potential use of land: Lower priority will be given to sites where a Community Garden may exclude existing or potential open space users.
Once you have established your working group/committee and have talked to different stakeholders and the public about the necessity of a Community garden in your area, it is time to consult with us about the availability of land, both public and private and the possibilities of using existing sites at educational and community or neighbourhood centres.
We will need to see documentation of strong community support, a diverse and active committee, and a business plan as outlined above.
Once land has been allocated it will be time to work on your garden design. You will need this to be to scale[1:100] and it will have to include proposed placement of garden beds, sheds, compost areas, shelter areas, water tank placements and anything else that you can think of. These plans can be amended, but they will have to be approved by the Planning Department first.
Once you have acquired a site(non-council land) or the land has been allocated to you from the Council you will need to submit a planning permit. A planning permit can be obtained from the Council offices. The Planning Department will need:
- Estimate of expected numbers (that is: On site at any one time)
- Any proposed restrictions on hours of operation.
- Details regarding any mechanical equipment that might be used on the site, including frequency of use.
- Details that explain how/what compost material will be brought to site and how odours will be minimised.
- Elevations [fully dimensioned and drawn to scale of 1:100] of all buildings/structures, including details of external cladding and colours.
- Business plan – amended version.
- Master plan/design.
- A copy of the title.
Lease and bond agreement
A lease agreement needs to be signed and bond paid before any work is started.(If on Council Land) This is an agreement between the Council and the incorporated entity and it outlines the practical and legal responsibilities that your Community Garden will be required to carry out on Council or Crown land. The Council will provide you with this licence agreement from the Property Department.
Memorandum of understanding (MOU)
If your garden is not on Council Land it would be advisable to draft an MOU between the Community Garden and the Owner of the Land which should also outline the practical and legal responsibility of both parties involved.