Local Government Act 1993 No 30
Historical version for 7 July 2003 to 17 July 2003 (accessed 22 November 2014 at 07:24) Current version
Chapter 6Part 3

Part 3 Restraints and qualifications that apply to service functions

Division 1 Tendering

55   What are the requirements for tendering?

(1)  A council must invite tenders before entering into any of the following contracts:
(a)  a contract to carry out work that, by or under any Act, is directed or authorised to be carried out by the council,
(b)  a contract to carry out work that, under some other contract, the council has undertaken to carry out for some other person or body,
(c)  a contract to perform a service or to provide facilities that, by or under any Act, is directed or authorised to be performed or provided by the council,
(d)  a contract to perform a service or to provide facilities that, under some other contract, the council has undertaken to perform or provide for some other body,
(e)  a contract for the provision of goods or materials to the council (whether by sale, lease or otherwise),
(f)  a contract for the provision of services to the council (other than a contract for the provision of banking, borrowing or investment services),
(g)  a contract for the disposal of property of the council,
(h)  a contract requiring the payment of instalments by or to the council over a period of 2 or more years,
(i)  any other contract, or any contract of a class, prescribed by the regulations.
(2)  Tenders are to be invited, and invitations to tender are to be made, by public notice and in accordance with any provisions prescribed by the regulations.
(2A)  Nothing in this section prevents a council from tendering for any work, service or facility for which it has invited tenders.
(3)  This section does not apply to the following contracts:
•  a contract entered into by a council with the Crown (whether in right of the Commonwealth, New South Wales or any other State or a Territory), a Minister of the Crown or a statutory body representing the Crown
•  a contract entered into by a council with another council
•  a contract for the purchase or sale by a council of land
•  a contract for the leasing of land by the council, other than the leasing of community land for a term exceeding 5 years to a body that is not a non-profit organisation (see section 46A)
•  a contract for purchase or sale by a council at public auction
•  a contract for the purchase of goods, materials or services specified by the State Contracts Control Board or the Department of Administrative Services of the Commonwealth, made with a person so specified, during a period so specified and at a rate not exceeding the rate so specified
•  a contract for the employment of a person as an employee of the council
•  a contract where, because of extenuating circumstances, remoteness of locality or the unavailability of competitive or reliable tenderers, a council decides by resolution (which states the reasons for the decision) that a satisfactory result would not be achieved by inviting tenders
•  contract for which, because of provisions made by or under another Act, a council is exempt from the requirement to invite a tender
•  a contract made in a case of emergency
•  a contract involving an estimated expenditure or receipt of an amount of less than $100,000 or such other amount as may be prescribed by the regulations.
(4)  A council that invites tenders from selected persons only is taken to comply with the requirements of this section if those persons are selected:
(a)  from persons who have responded to a public advertisement for expressions of interest in the particular contract for which tenders are being invited, or
(b)  from persons who have responded to a public advertisement for recognition as recognised contractors with respect to contracts of the same kind as that for which tenders are being invited.

Division 2 Water supply, sewerage and stormwater drainage works and facilities

56   Application of Division

(1)  The provisions of this Division relating to water supply and sewerage (but not stormwater drainage) do not apply to:
(a)  land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or
(b)  land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991.
(2)  The provisions of this Division (sections 57, 58 and 59 excepted) relating to water supply and sewerage (but not stormwater drainage) do not apply to land within the area of operations of a water supply authority constituted under the Water Management Act 2000.

57   Construction of works

(1)  The Minister for Land and Water Conservation may, on the application of one or more councils, construct works of water supply, sewerage or stormwater drainage under the Public Works Act 1912.
(2)  The Minister for Land and Water Conservation may agree to the construction of the works by the council or councils concerned on the Minister’s behalf.

58   Handing over of works

(1)  The Minister for Land and Water Conservation may, on or before the completion of any such works, by notice given to the council or councils concerned, charge the council or councils with the care and management of the whole or part of the works (and of land on which the works are, or are being, constructed).
(2)  The notice may include provisions relating to the responsibility of the council or councils concerned for financial costs associated with the works.
(3)  The notice has effect according to its tenor from the date the notice is given to the council or councils concerned.
(4)  If more than one council is charged with the care and management of works, each council may be charged with the care and management of a specified portion of the works or the councils may be charged jointly as to the whole or a specified portion.

59   Vesting of works

(1)  The Minister for Land and Water Conservation may, by notice published in the Gazette, do either or both of the following:
(a)  declare that land acquired for the purposes of any such works, or any part of the works, is vested in the council or councils,
(b)  declare that all right, title and interest of the Minister in any such works, or part of the works, are vested in the council or councils.
(2)  The notice has effect according to its tenor from the date the notice is published in the Gazette.
(3)  If, on the date on which a notice under this section is published in the Gazette, the council or councils concerned have not made all payments to the Minister that may finally be required to be made in respect of the cost of the acquisition of the land and of constructing the works, or part of the works (whether or not that cost has been finally determined), the council or councils concerned continue to be liable to make those payments.

59A   Ownership of water supply, sewerage and stormwater drainage works

(1)  Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).
(2)  A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed.

60   Council works for which the approval of the Minister for Land and Water Conservation is required

A council must not, except in accordance with the approval of the Minister for Land and Water Conservation, do any of the following:
(a)  as to works of water supply—construct or extend a dam for the impounding or diversion of water for public use or any associated works,
(b)  as to water treatment works—construct or extend any such works,
(c)  as to sewage—provide for sewage from its area to be discharged, treated or supplied to any person,
(d)  as to flood retarding basins prescribed by the regulations—construct or extend any such basins.

61   Directions of the Minister for Land and Water Conservation concerning certain works

(1)  The Minister for Land and Water Conservation or a person authorised by the Minister may direct a council to take such measures as are specified in the direction to ensure the proper safety, maintenance and working of any of the following works:
(a)  dams for the impounding or diversion of water for public use or any associated works,
(b)  water treatment works,
(c)  sewage treatment works.
(2)  The council must comply with the direction.

62   Powers of Minister during emergencies

(1)  The Minister for Land and Water Conservation or a person authorised by the Minister may direct a council to take such measures with respect to any works to which this Division applies as are specified in the direction if the Minister or person is of the opinion that an emergency exists that constitutes a threat to public health or public safety or that is causing or is likely to cause damage to property.
(2)  A direction may not be given unless the Minister for Land and Water Conservation has obtained the concurrence of the Minister for Health.
(3)  The council must comply with the direction.

63   Effect of failure to comply with directions

(1)  If a council does not comply with a direction under section 61 or 62 within a reasonable time after notice requiring compliance with the direction is given to it by the Minister for Land and Water Conservation or the person authorised by the Minister, the Minister may do all such things as may be necessary to give effect to the direction.
(2)  The Minister may recover any cost incurred from the council as a debt.

64   Construction of works for developers

Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 applies to a council exercising functions under this Division in the same way as it applies to a water supply authority exercising functions under that Act.

65   Powers of Minister for Land and Water Conservation—entry on to land and other powers

Part 2 of Chapter 8 applies, in relation to works of water supply and sewerage to which this Division applies, to the Minister for Land and Water Conservation and a person authorised by the Minister in the same way as it applies to a council and a council employee (or other person) authorised by the council.

66   Appointment of administrator

(1)  The Minister for Land and Water Conservation may, with the concurrence of the Minister for Local Government, by order published in the Gazette, appoint an administrator to exercise all the functions under this Division, or specified functions under this Act, of a council.
(2)  Such an order may not be made until after a public inquiry concerning the exercise by the council of the relevant functions has been held.
(3)  The appointment of one or more persons as a commissioner or commissioners to hold the public inquiry may, despite section 740, be made by the Minister for Land and Water Conservation with the concurrence of the Minister for Local Government.
(4)  The administrator is to be paid a salary determined by the Minister for Land and Water Conservation with the concurrence of the Minister for Local Government from the council’s funds.
(5)  An administrator has, during the administrator’s term of office and to the exclusion of the council, the functions the administrator was appointed to exercise.
(6)  The regulations may make provision for or with respect to:
•  the appointment and term of office of an administrator
•  an administrator’s accommodation, and the accommodation of persons assisting the administrator, at the offices of the council
•  the assistance to be rendered to an administrator by the council’s employees.

Division 3 Private works

67   Private works

(1)  A council may, by agreement with the owner or occupier of any private land, carry out on the land any kind of work that may lawfully be carried out on the land.
Note. Examples of the kind of work that a council might carry out under this section include:
•  paving and roadmaking
•  kerbing and guttering
•  fencing and ditching
•  tree planting and tree maintenance
•  demolition and excavation
•  land clearing and tree felling
•  water, sewerage and drainage connections
•  gas and electricity connections.
(2)  A council must not carry out work under this section unless:
(a)  it has first fixed, generally or in the particular case, an amount or rate for carrying out the work after considering the actual cost of carrying out the work and any current market rates relevant to the carrying out of the work, and
(b)  if the amount for which, or the rate at which, it proposes carrying out the work is less than the amount or rate so fixed, the decision to carry out the work is made by resolution of the council at an open meeting before the work is carried out.
(3)  A council must include details or a summary of any resolutions made under this section and of work carried out under subsection (2) (b) in its next annual report.
(4)  A report of work to which subsection (2) (b) applies must be given to the next meeting of the council after the work is carried out specifying:
•  the person for whom the work was carried out
•  the nature of the work
•  the type and quantity of materials used
•  the charge made for those materials
•  the total of the number of hours taken by each person who carried out the work
•  the total amount charged for carrying out the work (including the charge made for materials)
•  the reason for carrying out the work.
(5)  This section does not apply to work carried out by a council, or by two or more councils jointly, for another council or for a public authority.
(6)  This section does not apply to any graffiti removal work carried out by a council in accordance with section 67A or 67B.

Division 4 Graffiti removal work

67A   Graffiti removal work—by agreement with owner or occupier

A council may, by agreement with the owner or occupier of any private land, carry out graffiti removal work on the land.

67B   Graffiti removal work—without agreement of owner or occupier

(1)  A council may, without the agreement of the owner or occupier of any land, carry out graffiti removal work to property on that land if the graffiti concerned is visible from a public place.
(2)  The graffiti removal work referred to in subsection (1) may only be carried out from a public place.
(3)  The council concerned is to bear the cost of graffiti removal work referred to in subsection (1).
(4)  If a council carries out graffiti removal work in accordance with this section, the council must, within a reasonable period, give the owner or occupier of the land concerned written notice that the work has occurred.
(5)  A council must pay compensation for any damage caused by the council in carrying out graffiti removal work in accordance with this section.
Note. Section 730 provides for the resolution of claims for compensation relating to damage under this section in cases of dispute between the person claiming the compensation and the council.

67C   Register of graffiti removal work

(1)  The council must keep a register of graffiti removal work carried out in accordance with section 67A or 67B.
(2)  The register is to specify in respect of each incidence of graffiti removal work carried out:
(a)  the owner or occupier of the premises on which the graffiti was situated, and
(b)  the nature of the work carried out, and
(c)  the actual cost, or an estimate of the cost at current market rates, of carrying out the work, and
(d)  in the case of graffiti removal work carried out in accordance with section 67A—the actual amount charged by the council for carrying out the work.
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