Introduction. Part 1 of this Chapter provides means for enforcing the Act in addition to the summary prosecution of offences under Chapter 16. Examples of these remedies include:• proceedings in the Land and Environment Court to restrain a breach of the Act• the carrying out of work by a council following a failure by a person to carry out the work in accordance with an order of the council• prosecution in certain circumstances of the owner of an illegally parked vehicle instead of the actual offender• the issue of penalty notices.Division 1 of Part 2 relates to functions of a council in relation to legal proceedings. Examples of these functions include:
• the right to appear before a local land board• the making of allegations and their effect• payment of employees for expenses incurred in taking legal action on behalf of a council.Division 2 of Part 2 deals with matters relating to evidence in legal proceedings involving a council. These include:
• matters of which proof by a council is not required unless evidence to the contrary is given• matters of which judicial notice is to be taken.Division 3 of Part 2 deals with certain notices involving a council, including the content, giving and service of the notices.
Division 4 of Part 2 deals with legal proceedings to recover unpaid rates and charges.
Division 5 of Part 2 enables the sale of land and interests in land (other than an estate or interest of the Crown in land) to recover amounts unpaid for rates and charges.
Part 3 deals with matters such as compensation and exculpation from liability that may arise as a result of proceedings involving a council.
672 What constitutes a breach of this Act for the purposes of this Part?
In this Part:(a) a breach of this Act means:(i) a contravention of or failure to comply with this Act,(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and(b) this Act includes:(i) an approval under Part 1 of Chapter 7, and(ii) an order under Part 2 of Chapter 7, and(iii) the regulations.
673 Remedy or restraint of breaches of this Act—the Minister, the Director-General and councils
(1) The Minister, the Director-General or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act.(2) Subsection (1) does not apply in relation to an alleged contravention of Part 2 (Duties of disclosure) of Chapter 14 (Honesty and disclosure of interests).Note. Section 489 (1) confers exclusive jurisdiction on the Pecuniary Interest and Disciplinary Tribunal to deal with such a matter at first instance. Section 485 provides for appeals to the Supreme Court against any decision of the Tribunal.
674 Remedy or restraint of breaches of this Act—other persons
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.(2) The proceedings may be brought by a person on the person’s own behalf or on behalf of the person and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.(4) Subsection (1) does not apply in relation to an alleged contravention of Part 2 (Duties of disclosure) of Chapter 14 (Honesty and disclosure of interests).Note. Section 489 (1) confers exclusive jurisdiction on the Pecuniary Interest and Disciplinary Tribunal to deal with such a matter at first instance. Section 485 provides for appeals to the Supreme Court against any decision of the Tribunal.(5) Subsection (1) does not apply in relation to anything done or omitted to be done under Division 3 of Part 1 of Chapter 14.Note. Section 440M confers a right of appeal to the Pecuniary Interest and Disciplinary Tribunal against an order of suspension of a councillor under Division 3 of Part 1 of Chapter 14.
675 Time limit on proceedings questioning the validity of approvals
Proceedings questioning the validity of an approval under Part 1 of Chapter 7 may not, if the council has given public notice of the granting of the approval in the manner and form prescribed by the regulations, be commenced more than 3 months after the date on which the notice was given.
676 Functions of the Land and Environment Court
(1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.(2) If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may:(a) adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.(3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.
677 Compensation may be awarded against vexatious litigants
(1) The Land and Environment Court, on the hearing of proceedings brought under section 674, has a discretion to award compensation to the person against whom such proceedings are taken if the Court considers that:(a) the proceedings against the person are frivolous or vexatious, and(b) the person has incurred expense as a consequence of any delay to an activity that has occurred as a result of the proceedings, and(c) the activity is authorised by an approval held by the person.(2) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision in the proceedings.(3) Compensation under this section is to be awarded against the person by whom the proceedings under section 674 were taken.
678 Failure to comply with order—carrying out of work by the council
(1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.(2) If the council gives effect to an order by demolishing a building, the council:(a) may remove any materials concerned, and(b) may sell the materials, unless the expenses of the council in giving effect to the terms of the order are paid to it within 14 days after removal of the materials.(3) If the proceeds of such a sale exceed the expenses incurred by the council in relation to the demolition and the sale, the council:(a) may deduct out of the proceeds of the sale an amount equal to those expenses, and(b) must pay the surplus to the owner on demand.(4) If the proceeds of sale do not exceed those expenses, the council:(a) may retain the proceeds, and(b) may recover the deficiency (if any) together with its costs of recovery from the owner as a debt.(5) Materials removed that are not saleable may be destroyed or otherwise disposed of.(6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned.(7) Nothing in subsection (3), (4) or (6) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.(8) A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings.(9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628.(10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.
679 Penalty notices for certain offences
(1) An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act (other than an offence under section 312, 650 or 651), being an offence prescribed by the regulations.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice:(a) may be served personally or by post, or(b) if it relates to an offence involving the use of a vehicle, may be addressed to the owner (without naming the owner or stating the owner’s address) and may be served by leaving it on or attaching it to the vehicle.(4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(5) Payment under this section is not regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(6) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences.(7) The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.(8) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.
680 Demanding name of offender
(1) An authorised person who finds a person whom the authorised person reasonably suspects of committing an offence under this Act in a public place, or an offence in respect of which the authorised person may issue a penalty notice under section 224 of the Protection of the Environment Operations Act 1997, may:(a) demand from the person his or her name and residential address, and(b) report the offence and the name and residential address of the person to the council as soon as practicable.(2) The provisions of subsection (1) (b) do not apply to any police officer in respect of an offence under section 650 (use of council’s free parking areas).(3) A person who on demand made as referred to in this section:(a) refuses to state his or her name or residential address, or(b) states a name or residential address which in the opinion of the authorised person is false,may without any other warrant than this Act be apprehended by the authorised person and taken before a Magistrate or authorised officer within the meaning of the Criminal Procedure Act 1986 to be dealt with according to law.(4) A Magistrate or authorised officer within the meaning of the Criminal Procedure Act 1986 before whom a person is taken under subsection (3) may grant the person bail in accordance with the Bail Act 1978 as if the person were accused of an offence.(5) A person who on demand made as referred to in this section:(a) refuses to state his or her name or residential address, or(b) states a false name or residential address,is guilty of an offence.Maximum penalty: 5 penalty units.
681 Removal of offenders from community land
(1) A person committing an offence against this Act on community land may be removed from the land by an authorised person.(2) Reasonable force may be used to effect the person’s removal.(3) The removal of the person does not affect the person’s liability to be prosecuted for an offence.
681A Confiscation of recreational equipment
(1) This section applies to:(a) any item of skating equipment that is being used in contravention of the provisions of a notice referred to in section 632 or of the provisions of section 633A, or(b) any item of water-based recreational equipment that is being used in contravention of the provisions of a notice referred to in section 633.(2) An authorised person may take possession of equipment to which this section applies:(a) if the authorised person has directed the person using the equipment to stop using it in contravention of the provisions referred to in subsection (1), and(b) if, despite the direction, the person has continued to use the equipment in contravention of those provisions,but may not use force to do so.(3) Equipment that an authorised person takes possession of under this section is referred to in this section as confiscated equipment.(4) On taking possession of confiscated equipment, the authorised person must give a receipt to the person from whom it has been taken, indicating the nature of the equipment and the date and time when the authorised person took possession of it.(5) The confiscated equipment:(a) must be returned to the person from whom it was taken, or be delivered to a public pound within the meaning of the Impounding Act 1993, within 24 hours after possession of it is taken, and(b) if it is delivered to a public pound, the person from whom it was taken must be notified in writing of the address of the pound.(6) The Impounding Act 1993 (sections 20 and 23 (2) (b) and (c) excepted) applies to confiscated equipment that is delivered to a public pound as if the equipment had been impounded under that Act. Accordingly, it will become returnable on demand.(7) The deadline for release for confiscated equipment, as referred to in section 24 of the Impounding Act 1993, is taken to be 28 days from the day on which possession of it was taken.(8) In this section, a reference to an authorised person extends to a member of a surf life saving organisation who is authorised by the council concerned to exercise the functions conferred on an authorised person by this section, but so extends only with respect to an item of water-based recreational equipment that is being used in contravention of the provisions of a notice referred to in section 633.(9) A council is liable for the acts and omissions of a member of a surf life saving organisation who is an authorised person by virtue of subsection (8) as if the member were an employee of the council.
Part 2 Proceedings by the council or its employees
682 Power to appear before local land boards
A council may appear and be represented by an Australian legal practitioner or agent before a local land board constituted under the Crown Lands Act 1989 in any matter before the board affecting the council or the interests of its area.
683 Authentication of documents
A document requiring authentication by the council may be sufficiently authenticated without the seal of the council if signed by the general manager or public officer.
In any proceedings for an offence, the information may be laid:(a) in the name of the council, if not required to be made on oath, or(b) in any case by the general manager or by any other employee of the council appointed generally or in respect of any special proceedings or by any police officer, or(c) in any case by a person appointed by the Director-General, generally or in respect of any special proceedings, or(d) in any case by an officer of the Department of Health appointed by the Director-General, Department of Health, generally or in respect of any special proceedings, or(e) by any other person.
685 Certain allegations in informations
An allegation, in an information in respect of an offence against this Act or the regulations:(a) that the defendant has not obtained a relevant approval under this Act of the council, or(b) that a standard, sign, notice or device was erected or displayed with the authority of the council,is sufficient proof of the matter so alleged, unless the defendant proves to the contrary.
686 Ownership of council property
In any proceedings (whether for the enforcement of a penalty or criminal proceedings) in relation to any property of or under the control and management of the council, it is sufficient to state generally that the property is the property of the council.
In proceedings in the Local Court, the general manager or any other employee of the council appointed in writing by the general manager may:(a) represent the council in all respects as though the general manager or other employee were the party concerned, and(b) institute and carry on any proceedings which the council is authorised to institute and carry on under this Act.
(1) If any person against whom a council has any claim or demand takes the benefit of any Act relating to bankruptcy or for the relief of insolvent debtors, the general manager may, in all proceedings:(a) against the estate of that bankrupt or insolvent person, or(b) under any adjudication, sequestration or act of bankruptcy or insolvency against or of that insolvent or bankrupt person,represent the council and act in its behalf in all respects as if the claim or demand were the claim or demand of the general manager.(2) If any company against which a council has any claim or demand is being or is wound up, the general manager may represent the council in all proceedings relating to the winding up and act on its behalf as if the claim or demand were the claim or demand of the general manager.
689 Payment of expenses of employee
Any damages, costs, charges or expenses that an employee of a council incurs or is liable to pay because of any proceedings which the employee is authorised by or under this or any other Act to take are to be paid by the council out of its consolidated fund.
(1) Whether any penalty imposed on a person by or under this Act has been recovered or not, the council may recover from the person:(a) any sum for damage sustained by it through the person’s act or default, and(b) the costs and expenses incurred by it in remedying that damage, and(c) the value of anything wasted, misused or unlawfully consumed, diverted or taken by the person.(2) The penalty may be recovered even if the council has not exercised any other right of recovery.(3) A prosecution or conviction for an offence against this Act or the regulations does not affect any right of action of any person for any damage sustained by the person.
(1) Proceedings for an offence against this Act or the regulations may be dealt with summarily by the Local Court.(2) Proceedings for an offence against section 626 (1), 627 (1) or 628 (1) may be dealt with:(a) summarily by the Local Court, or(b) summarily before the Land and Environment Court in its summary jurisdiction.(3) Proceedings for an offence dealt with summarily before the Land and Environment Court in its summary jurisdiction may be instituted at any time within 6 months after the offence is alleged to have been committed.
693 Time for bringing proceedings concerning electoral offences
Proceedings for an offence concerning an election or poll under this Act may be instituted at any time within 12 months after the offence is alleged to have been committed.
(1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is:(a) to be paid to the council, and(b) to be allocated by the council to the council’s consolidated fund.(1A) In subsection (1):breach of this Act or any other Act means:
(a) a contravention of or failure to comply with this Act or any other Act, or(b) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act or any other Act.this Act or any other Act includes a regulation or other instrument made under this Act or any other Act.
(2) Any penalty, fine or forfeiture under this Act or the regulations recovered in proceedings instituted by a police officer or by an officer of the Department of Health is to be paid to the Consolidated Fund referred to in section 39 of the Constitution Act 1902.(3) The Treasurer may enter into an arrangement with the council of Sydney, North Sydney or South Sydney with respect to the allocation of any money paid or payable to the council from penalties and fines for parking and related offences recovered in proceedings instituted by the council.(4) Any money to which such an arrangement applies is to be apportioned between the council and the State in accordance with the arrangement and:(a) as to the council’s portion, is to be retained in the council’s consolidated fund for use by the council, and(b) as to the State’s portion, is to be paid to the Consolidated Fund referred to in section 39 of the Constitution Act 1902.(5) In this section:(a) a reference to proceedings instituted by the council includes:(i) a reference to proceedings instituted under the direction or on behalf or for the benefit of the council, and(ii) a reference to penalty notices issued by or under the direction or on behalf or for the benefit of the council, and(b) a reference to a parking or related offence is a reference to an offence that is declared by the regulations to be a parking or related offence for the purposes of this section.
A rate, charge, fee or other money due to the council under this Act or the regulations may be recovered by the council as a debt in a court of competent jurisdiction, except as provided by this Act.
If because of this Act or the regulations:(a) two or more persons are or may be directed by the council to do or join in doing any act or to pay or join in paying any sum of money, costs or expenses, or(b) the council permits two or more persons to join together in doing any act or paying any sum of money, costs or expenses,the council may apportion the matter to be done or the sum of money, costs or expenses to be paid between those persons in whatever manner the council thinks just and reasonable, and the act is to be done or the money, costs or expenses are to be paid accordingly.
In any prosecution or other legal proceeding under this Act or any other Act instituted by or under the direction or on behalf or for the benefit of the council, proof is not, until evidence is given to the contrary, to be required of any of the following:• the incorporation of the council• the persons comprising the governing body of the council• the election or appointment of the mayor or any other councillor• the extent or boundaries of the area or of any ward• the fact that any particular place is within the area or within a ward• the appointment of the general manager or of any other employee of the council• any order to prosecute or the authority of the general manager or any employee of the council to prosecute• the presence of a quorum of the council at the passing of any resolution or the making of any decision or determination or the doing of any act• the fact that the defendant is or at any relevant time was the owner or occupier of any land in question• the fact that the defendant is or at any relevant time was the owner or in possession, control or charge of any animal or thing in question.
698 Judicial notice of certain documents
(1) Judicial notice is to be taken of any document purporting to be issued or written by or under the direction of the council and purporting to be signed by the mayor, the general manager or the public officer.(2) Judicial notice is to be taken of every notice made or given under this Act:(a) that has been published in the Gazette, or(b) that has been published in a newspaper, or(c) a copy of which has been certified by the mayor, general manager or the public officer as a true copy,and of the date on which the notice was made or given.(3) It is to be presumed, until the contrary is proved, that any such notice has been duly made or given.(4) A copy of any such notice is to be delivered to any person who demands a copy on payment to the council of the approved fee.
If any employee of the council or other person:(a) serves any notice required to be given by the council in the manner directed by or under this Act, and(b) endorses on or annexes to a true copy of the notice a statutory declaration stating the place, the time and the manner in which it has been served,the statutory declaration purporting to have been so made is, until the contrary is proved, evidence of the service of the notice.
700 Proof of ownership of, or leasehold estate in, land
(1) In any legal proceedings under this Act, in addition to any other method of proof available:(a) evidence that the person proceeded against is rated in respect of any land to any rate under this Act is, until the contrary is proved, evidence that the person is the owner or lessee of the land, or(b) a certificate furnished by the Registrar-General under subsection (2) with respect to any land is, until the contrary is proved, evidence:at the time or during the period specified in the certificate pursuant to subsection (3) (b) (i) or (ii).(i) that the person described in the certificate as the proprietor or owner of the land was the owner of that land, and(ii) that the person, if any, so described as the lessee of the land was the lessee of that land,(2) If:(a) written application with respect to any land is made to the Registrar-General under this subsection by the general manager of a council, and(b) the Registrar-General has been paid the prescribed fee,the Registrar-General is to furnish to the council a certificate setting out such of the particulars specified in subsection (3) as are recorded in the Register kept under the Real Property Act 1900 or in the General Register of Deeds maintained under Division 1 of Part 23 of the Conveyancing Act 1919 and as the Registrar-General is able to ascertain from the information about the land furnished in the application.(3) The particulars are:(a) the situation and a description of the land, and(b) in the case of:(i) land subject to the provisions of the Real Property Act 1900—the names and addresses of the person registered under that Act as the proprietor of, and any person so registered as a lessee of, the land at the time or during the period in respect of which the application is made and the date of registration of the instruments under which they became so registered, or(ii) land not subject to those provisions—the names and addresses of the owner and of any lessee of the land at the time or during the period in respect of which the application is made and the dates, and dates of registration under Division 1 of Part 23 of the Conveyancing Act 1919, of the instruments kept in the General Register of Deeds maintained under that Division under which the owner or lessee became the owner or lessee of the land.(4) Judicial notice is to be taken for the purposes of this Act of the signature of the Registrar-General and of a Deputy Registrar-General.(5) In subsection (2) (b), the reference to the prescribed fee is, in relation to an application made under that paragraph:(a) in the case of land subject to the provisions of the Real Property Act 1900—a reference to the fee prescribed under that Act for the purposes of that paragraph, or(b) in the case of land not subject to those provisions—a reference to the fee prescribed under the Conveyancing Act 1919 for the purposes of that paragraph.
701 Evidence as to whether a place is a public road
(1) Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road.(2) This section is subject to section 178 of the Conveyancing Act 1919 (No way by user against Crown, etc).
702 Offences on boundaries of areas
(1) In proceedings for an offence alleged to have been committed on any part of a public road or on or in any part of a river, watercourse or tidal or non-tidal water, any part of which forms the boundary of the area, it is not necessary to prove that the place where the offence is alleged to have been committed was on either side of the boundary, but it is sufficient to prove that the place where the offence is alleged to have been committed is part of the road, river, watercourse or water.(2) The council of the area or the council of any adjoining area may take proceedings for any such offence.
Every entry in the minutes of the business transacted at a meeting of the council and purporting to be signed by the person presiding at a subsequent meeting of the council is, until the contrary is proved, evidence:(a) that the business as recorded in the minutes was transacted at the meeting, and(b) that the meeting was duly convened and held.
704 Delineation of local government boundaries by reference to maps
(1) In any proclamation, regulation or notice made or given or purporting to be made or given under this Act with respect to the boundaries of any area or with respect to any proposal relating to those boundaries, the boundaries of the land affected:(a) may be defined by metes and bounds, or(b) may be defined or indicated by reference to recorded plans kept in the central plan register established under the Survey Co-ordination Act 1949.(2) If the Minister certifies in writing to the Governor that it is desirable that the existing boundaries of any area be described by reference:(a) to different surveys or definitions of land boundaries, or(b) to different recorded plans kept in the central plan register established under the Survey Co-ordination Act 1949,the Governor may, by proclamation, redescribe those boundaries accordingly.(3) On and from the publication in the Gazette of the proclamation, the boundaries of the area are to be as so redefined.(4) Recorded plans referred to in this section are taken to be public documents for the purposes of sections 152 (Documents produced from proper custody) and 156 (Public documents) of the Evidence Act 1995.
Division 3 Notices by the council
(1) If the council or another person is required to give public notice under this Act, the notice must state the place at which, the dates on which, and the times during which the matter publicly notified may be inspected by the public.(2) The notice is to be in the approved form.(3) The notice is to be given in a manner determined by the council with the object of bringing the matter notified to the attention of as many people in its area as possible.
706 What happens after a council gives public notice?
(1) If public notice is given by the council, anyone may make a written submission to the council during the period of public notice (or any longer period allowed by this Act for the making of submissions) concerning the matter notified.(2) Before determining the matter notified, the council must consider all submissions duly made to it.
707 Publication of notices in Gazette and newspaper
(1) If the regulations direct the publication of any advertisement or notice both in the Gazette and in any newspaper, it is sufficient compliance with the direction if, in addition to publication in the Gazette, there is also published in a newspaper either a summary of the advertisement or notice, or a statement only that such advertisement or notice has been published in the Gazette.(2) The date of the Gazette in which the advertisement or notice has been published is to be specified in the summary or statement.
(1) A notice required to be served on the Crown may be served as provided by this section.(2) If a Department is concerned, the service may be on the Department head.(3) If a statutory body representing the Crown is concerned, the service may be:(a) on the chief executive officer of the statutory body, or(b) on such person as may be prescribed by the regulations.
A notice required to be served on a corporation may be served on the secretary or public officer of the corporation.
710 Service of notices on persons
(1) A notice required by or under this Act to be served on a person may be served as provided by this section.(2) The service may be:(a) personal, or(b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving it with any person apparently above the age of 14 years resident or employed at the premises, or(c) by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or(d) by transmitting the notice by facsimile transmission to a number specified by the person (on correspondence or otherwise) as a number to which facsimile transmissions to that person may be sent, or(d1) by transmitting the notice by electronic mail to an email address specified by the person (on correspondence or otherwise) as an address to which electronic mail to that person may be transmitted, or(e) by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person, or(f) in the case of an offence involving a vehicle, by attaching the notice to the vehicle, or(g) if the person to be served maintains a box at a document exchange established in New South Wales, by depositing the notice in that box or leaving it at another such exchange for transmission to the firstmentioned exchange for deposit in that box.(2A) Subsection (2) (d1) does not authorise a notice to be transmitted to a person by electronic mail unless the person has requested the council, in writing, that notices of that kind be transmitted to the person by electronic mail, and has not subsequently withdrawn the request.(2B) A person’s request under subsection (2A) is taken to have been withdrawn in relation to a particular kind of notice only if the person has informed the council, in writing, that notices of that kind are no longer to be transmitted to the person by electronic mail.(2C) While a person’s request under subsection (2A) has effect in relation to a particular kind of notice, the address to which notices of that kind are to be transmitted is:(a) the email address indicated in the request, or(b) if the person subsequently directs the council, in writing, to transmit notices of that kind to a different email address, that different address.(3) If a notice is deposited in a box, or left at a document exchange, service of the notice is, until the contrary is proved, taken to be effected 2 days after the day on which the notice is so deposited or left.(4) In addition to the means of service prescribed by subsection (2):(a) in any case where the person to be served is, or after inquiry appears to be, absent from New South Wales, the service may be on the agent of that person by any of the means prescribed by subsection (2) (a), (b), (c) or (d), and(b) in any case where the land, building or premises are unoccupied and the owner or the owner’s address or place of residence is not known to the council, the service may be by advertisement in the approved form published in a newspaper circulating in the district in which the land, building or premises are situated, and(c) in the case of the service of a rates and charges notice, the service may be effected by delivering the notice to the premises at which the person to be served lives or carries on business and depositing it in a box or receptacle at, on or in the proximity of those premises that is provided, used or designed for the reception of letters addressed to that person.(5) The notice may be addressed by the description of “rateable person” or “owner” or “occupier” of the land, building or premises (naming or otherwise sufficiently indicating the same) in respect of which the notice is served, and without further name or description.(6) The notice may be wholly printed, wholly written or partly printed and partly written.(7) If a notice has been served by any of the means prescribed by this section, all inquiries required under this section are taken to have been made, and the service is conclusive evidence of them.(8) Proof by affidavit or orally that a notice has been posted, or its transmission by electronic mail has been initiated, in accordance with this section is conclusive evidence of service.(9) For the purposes of this section, a justice of the peace is authorised to take and receive an affidavit, whether any matter to which the affidavit relates is or is not pending in any court.
711 Effect of service on successors in title
A notice duly served on a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the notice had been served on that person.
Division 4 Legal proceedings for the recovery of rates and charges
712 Special provisions with respect to the recovery of unpaid rates and charges
(1) Proceedings for the recovery of a rate or charge may be commenced at any time within 20 years from the date when the rate or charge became due and payable.(2) All rates and charges payable by the same person, whether in respect of the same or of different land, may be recovered in a single action.(3) In any proceedings for the recovery of a rate or charge, a court may decide any matter that is called into question and that is relevant to the determination of the proceedings, even though the matter would otherwise be beyond the court’s jurisdiction.(4) A court’s decision on any matter that would, but for this section, be beyond its jurisdiction is relevant only to the determination of the proceedings in which it is called into question and is of no effect in relation to any other proceedings.(5) No matter in respect of which a right of appeal is given under section 574 may be called into question in any proceedings for the recovery of a rate or charge so as to prevent its recovery if the time within which the right of appeal may be exercised has expired.(6) Service of a rates and charges notice or notice of a charge may not be called into question more than 10 years after the date of alleged service of the notice.(7) Proceedings for the recovery of any rate or charge by the enforcement of the charge it comprises on the land are not to be taken in any court, except proceedings for the purposes of Division 5.
Division 5 Sale of land for unpaid rates and charges
713 Sale of land for unpaid rates and charges
(1) For the purposes of this Division, a rate or charge is overdue if:(a) in the case of vacant land, it has remained unpaid for more than one year, or(b) in the case of any other land, it has remained unpaid for more than 5 years,from the date on which it became payable.(2) A council may, in accordance with this Division:(a) sell any land (including vacant land) on which any rate or charge has remained unpaid for more than 5 years from the date on which it became payable, and(b) sell any vacant land on which any rate or charge has remained unpaid for more than one year but not more than 5 years from the date on which it became payable, but only if:(i) the council obtains a valuation of the land from the Valuer-General, and(ii) the total amount of unpaid rates or charges on the land exceeds the valuation, and(iii) the council sells the land within 6 months after the date when the council received the valuation.(3) The council must not sell any such land unless the general manager or the public officer certifies in writing:(a) what rates and charges (including overdue rates and charges) are payable on the land, and(b) when each of those rates and charges was made and how it was levied, and(c) when each of those rates and charges became payable, and(d) what amounts are payable by way of overdue rates and charges on the land, and(e) what amounts are payable by way of rates and charges (other than overdue rates and charges) on the land.(4) The council may, in the case of adjoining parcels of land (whether in the same or different ownerships) each of which may be sold under this Division:(a) sell them separately or as a single parcel and under whatever conditions of sale it considers proper, and(b) do such things as it considers appropriate for the purpose of selling the land at its full value.
714 Estates and interests of the Crown in land
This Division does not enable the sale of:(a) any estate or interest of the Crown in land, or(b) any interest in land owned by the Crown that may not be transferred at law.
715 Notice of proposal to sell land
(1) Before selling land under this Division, the council must:(a) fix a convenient time (being not more than 6 months and not less than 3 months from the publication in a newspaper of the advertisement referred to in paragraph (b)) and a convenient place for the sale, and(b) give notice of the proposed sale by means of an advertisement published in the Gazette and in at least one newspaper, and(c) take reasonable steps to ascertain the identity of any person who has an interest in the land, and(d) take reasonable steps to notify each such person (and the Crown, if the land concerned is owned by the Crown) of the council’s intention to sell the land under this Division.(2) If, before the time fixed for the sale:(a) all rates and charges payable (including overdue rates and charges) are paid to the council, or(b) an arrangement satisfactory to the council for payment of all such rates and charges is entered into by the rateable person,the council must not proceed with the sale.
716 Sale of land by public auction
(1) Any sale of land under this Division must be by way of public auction, except as provided by this section.(2) Land that fails to sell at public auction may be sold by private treaty.(3) Land may be sold under this Division to the council, a councillor, a relative of a councillor, a member of staff of the council or any relative of a member of staff of the council in the case of sale by public auction, but may not be so sold in the case of sale by private treaty.
(1) The purchase money for land sold under this Division must be paid to the council, and the council’s receipt is a discharge to the purchaser in respect of all expenses, rates, charges and debts referred to in section 718.(2) The purchase money for land purchased by the council must be paid by way of a transfer between the appropriate funds kept by the council.(3) Any such transfer is taken to be:(a) payment to the council of the purchase price of the land, for the purposes of section 722, and(b) purchase money received by the council on the sale of land for unpaid rates and charges, for the purposes of section 718.
718 Application of purchase money
The council must apply any purchase money received by it on the sale of land for unpaid rates and charges in or towards payment of the following purposes and in the following order:(a) firstly, the expenses of the council incurred in connection with the sale,(b) secondly, any rate or charge in respect of the land due to the council, or any other rating authority, and any debt in respect of the land (being a debt of which the council has notice) due to the Crown as a consequence of the sale on an equal footing.
719 What if the purchase money is less than the amounts owing?
If the purchase money is insufficient to satisfy all rates, charges and debts referred to in section 718 (b):(a) the amount available is to be divided between the rates, charges and debts in proportion to the amounts owing on each, and(b) the rates, charges and debts are taken to have been fully satisfied.
720 What if the purchase money is more than the amounts owing?
(1) Any balance of the purchase money must be paid into the council’s trust fund and held by the council in trust for the persons having estates or interests in the land immediately before the sale according to their respective estates and interests.(2) The council may pay the balance of the purchase money or any part of the balance to or among the persons who are, in its opinion, clearly entitled to it, and the receipt of the person to whom any payment is so made is an effectual discharge to the council for it.(3) (Repealed)
721 Apportionment of rates on subdivided land
(1) This section applies to any land on which a rate or charge is levied and which is subsequently subdivided.(2) If part only of any such land is sold under this Division, any unpaid rates and charges in respect of the land may be apportioned by the council on the recommendation of the Valuer-General.
722 Conveyance or transfer of the land
The council, on payment to it of the purchase money, may convey or transfer the land to the purchaser without any other authority than that conferred by this section.
723 Land is conveyed free of certain interests
(1) A conveyance or transfer under this Division vests the land in the purchaser for an estate in fee simple freed and discharged from all trusts, obligations, estates, interests, contracts and charges, and rates and charges under this Act or any other Act, but subject to:(a) any reservations or conditions for the benefit of the Crown affecting the land, and(b) any easements, restrictive covenants, positive public covenants created in accordance with section 88D or 88E of the Conveyancing Act 1919 and public rights of way affecting the land.(2) This section does not apply to a leasehold estate under a lease that may be transferred at law in land owned by the Crown.
724 Special provisions concerning leases of land owned by the Crown
(1) This section applies to a leasehold estate under a lease that may be transferred at law in land owned by the Crown.(2) A conveyance or transfer under this Division of a leasehold estate to which this section applies vests the leasehold estate in the purchaser freed and discharged from all trusts, obligations, estates, interests, contracts and charges, and rates and charges under this or any other Act, but subject to:(a) any debt payable to the Crown, and(b) any liability for any breach before the conveyance or transfer of the lease, and(c) the provisions of the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act 1989 and the Western Lands Act 1901 applicable to the leasehold estate.
725 Transfers not invalid because of procedural irregularities
A transfer or conveyance issued by a council under this Division is not invalid merely because the council has failed to comply with a requirement of this Division with respect to the sale of the land to which the transfer or conveyance relates.
726 Registration of transfer of land under the Real Property Act 1900
(1) On lodgment of a transfer of land under the Real Property Act 1900, the Registrar-General is to make such recordings in the Register kept under that Act as are necessary to give effect to this Division.(2) The transfer does not operate at law until it is registered under the Real Property Act 1900.
Part 3 Proceedings against councils, councillors and staff
A document required to be served on a council may be served by being given personally to the general manager or the public officer.
A penalty or surcharge recoverable against the council or a councillor or employee of the council may be sued for without notice by any person.
729 Proceedings alleging non-compliance with a procedural requirement
The validity or effectiveness of a decision of a council may not be questioned in any legal proceedings on the ground that, in making or purporting to make the decision, the council failed to comply with a procedural requirement of this Act or the regulations (including a requirement as to the giving of notice) unless the proceedings are commenced within 3 months after the date of the decision.
(1) A claim for compensation under section 12 (5) of the Graffiti Control Act 2008 or section 128 or 198 of this Act, in case of dispute, may by agreement between the council and the person claiming the compensation be referred to arbitration under the Commercial Arbitration Act 2010.(2) Failing agreement within 28 days after notice of the claim is served on the council, either party may refer the claim to the Land and Environment Court for determination.(3) The Land and Environment Court may hear and determine the matter and make any order with respect to the claim and the costs of the case as having regard to the circumstances of the case and to the public interest the Court thinks just.
731 Liability of councillors, employees and other persons
A matter or thing done by the Minister, the Director-General, a council, a councillor, a member of a committee of the council or an employee of the council or any person acting under the direction of the Minister, the Director-General, the council or a committee of the council does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act, and for and on behalf of the Minister, the Director-General, the council or a committee of the council, subject a councillor, a member, an employee or a person so acting personally to any action, liability, claim or demand.
732 Exemption from liability—accreditation and certification
A council, a councillor and an employee of a council do not incur any liability as a consequence of:(a) the council’s acting in accordance with section 92 (Approval where an accreditation is in force), or(b) the council’s satisfying itself as to a matter referred to in section 93 (Certification by qualified persons) by relying on a certificate referred to in that section, or(c) (Repealed)
733 Exemption from liability—flood liable land, land subject to risk of bush fire and land in coastal zone
(1) A council does not incur any liability in respect of:(a) any advice furnished in good faith by the council relating to the likelihood of any land being flooded or the nature or extent of any such flooding, or(b) anything done or omitted to be done in good faith by the council in so far as it relates to the likelihood of land being flooded or the nature or extent of any such flooding.(2) A council does not incur any liability in respect of:(a) any advice furnished in good faith by the council relating to the likelihood of any land in the coastal zone being affected by a coastline hazard (as described in a manual referred to in subsection (5) (b)) or the nature or extent of any such hazard, or(b) anything done or omitted to be done in good faith by the council in so far as it relates to the likelihood of land being so affected.(2A) A council does not incur any liability in respect of:(a) any advice furnished in good faith by the council relating to the likelihood of any land being subject to the risk of bush fire or the nature or extent of any such risk, or(b) anything done or omitted to be done in good faith by the council in so far as it relates to the likelihood of land being subject to the risk of bush fire.(3) Without limiting subsections (1), (2) and (2A), those subsections apply to:(a) the preparation or making of an environmental planning instrument, including a planning proposal for the proposed environmental planning instrument, or a development control plan, or the granting or refusal of consent to a development application, or the determination of an application for a complying development certificate, under the Environmental Planning and Assessment Act 1979, and(b) the preparation or making of a coastal zone management plan, or the giving of an order, under the Coastal Protection Act 1979, and(c) the imposition of any condition in relation to an application referred to in paragraph (a), and(d) advice furnished in a certificate under section 149 of the Environmental Planning and Assessment Act 1979, and(e) the carrying out of flood mitigation works, and(f) the carrying out of coastal management works, and(f1) the carrying out of bush fire hazard reduction works, and(f2) anything done or omitted to be done regarding beach erosion or shoreline recession on Crown land, land within a reserve as defined in Part 5 of the Crown Lands Act 1989 or land owned or controlled by a council or a public authority, and(f3) the failure to upgrade flood mitigation works or coastal management works in response to projected or actual impacts of climate change, and(f4) the failure to undertake action to enforce the removal of illegal or unauthorised structures that results in erosion of a beach or land adjacent to a beach, and(f5) the provision of information relating to climate change or sea level rise, and(f6) anything done or omitted to be done regarding the negligent placement or maintenance by a landowner of emergency coastal protection works authorised by a certificate under Division 2 of Part 4C of the Coastal Protection Act 1979, and(g) any other thing done or omitted to be done in the exercise of a council’s functions under this or any other Act.(4) Without limiting any other circumstances in which a council may have acted in good faith, a council is, unless the contrary is proved, taken to have acted in good faith for the purposes of this section if the advice was furnished, or the thing was done or omitted to be done, substantially in accordance with the principles contained in the relevant manual most recently notified under subsection (5) at that time.(5) For the purposes of this section, the Minister for Planning may, from time to time, give notification in the Gazette of the publication of:(a) a manual relating to the management of flood liable land, or(b) a manual relating to the management of the coastline, or(c) a manual relating to the management of land subject to the risk of bush fire.The notification must specify where and when copies of the manual may be inspected.
(6) A copy of the manual must be available for public inspection, free of charge, at the office of the council during ordinary office hours.(7) This section applies to and in respect of:(a) the Crown, a statutory body representing the Crown and a public or local authority constituted by or under any Act, and(b) a councillor or employee of a council or any such body or authority, and(c) a public servant, and(d) a person acting under the direction of a council or of the Crown or any such body or authority,in the same way as it applies to and in respect of a council.(8) In this section:coastal management works includes the placement and maintenance of emergency coastal protection works.
coastal zone has the same meaning as in the Coastal Protection Act 1979, and includes land previously in the coastal zone under that Act and land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries.
manual includes guidelines.