Part 2Part 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.