Local Government Act 1993 No 30
Current version for 1 December 2014 to date (accessed 22 December 2014 at 04:16)
Status information
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Status information

Currency of version
Current version for 1 December 2014 to date (accessed 22 December 2014 at 04:16).
Legislation on this site is usually updated within 3 working days after a change to the legislation.

Provisions in force
The provisions displayed in this version of the legislation have all commenced. See Historical notes

Does not include amendments by:
Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 No 93, Sch 1 [4] to the extent that it omits item 4 from Part F of the Table to sec 68 (not commenced)
Environmental Planning and Assessment Amendment Act 2008 No 36 (amended by Statute Law (Miscellaneous Provisions) Act (No 2) 2014 No 88), Sch 5.4 [1]–[3] (not commenced)
Statute Law (Miscellaneous Provisions) Act (No 2) 2008 No 114, Sch 1.12 [3]–[6] (not commenced — Sch 1.12 [3]–[5] to commence on the commencement of Sch 3.1 [6] to the Environmental Planning and Assessment Amendment Act 2008; Sch 1.12 [6] to commence on the commencement of sec 96D of the Environmental Planning and Assessment Act 1979 (as inserted by Sch 2.1 [36] to the Environmental Planning and Assessment Amendment Act 2008))
Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014 No 30 (not commenced)
Water Industry Competition Amendment (Review) Act 2014 No 57 (not commenced)
Water NSW Act 2014 No 74 (not commenced)
Local Government Amendment (Elections) Act 2014 No 80 (not commenced)

See also:
Government Sector Employment Legislation Amendment Bill 2013
Local Government Amendment (Red Tape Reduction) Bill 2014

Responsible Minister
Minister for Local Government, except part; Part 2A of Chapter 6, Minister for the Environment

Authorisation
This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel's Office and published on the NSW legislation website, and is certified as the form of that legislation that is correct under section 45C of the Interpretation Act 1987.

File last modified 1 December 2014.

NSW Crest

An Act to provide for local government in New South Wales.

Chapter 1 Preliminary

Introduction. This Chapter contains provisions which are helpful in understanding the Act as a whole, as well as some machinery provisions.

1   Name of Act

This Act may be cited as the Local Government Act 1993.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Definitions

Expressions used in this Act (or in a particular provision of this Act) which are defined in the dictionary at the end of this Act have the meanings set out in the dictionary.
Note. Expressions used in this Act (or in a particular provision of this Act) which are defined in the Interpretation Act 1987 have the meanings set out in that Act.

4   Does this Act bind the Crown?

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities, except to the extent to which this Act otherwise provides.
Note. Particular provisions relating to the Crown are found in the following sections:
•  sections 72–74—concerning determination of Crown applications for approvals
•  section 111—concerning revocation or modification of approvals given to the Crown
•  section 126—concerning the giving of orders affecting Crown lands, reserves under Part 5 of the Crown Lands Act 1989 and commons
•  sections 555 and 561—concerning rates and charges on land owned by the Crown
•  section 560—concerning the liability to pay rates in respect of land owned by the Crown
•  section 611—concerning the imposition of an annual charge for certain things on, under or over public places
•  section 708—service of notices on the Crown
•  section 714—prohibition on sale of Crown lands for unpaid rates and charges

5   To what parts of the State does this Act apply?

This Act applies to those parts of the State that are constituted as areas for the purposes of this Act, except as provided by or under this Act.
Note. This Act does not apply to the whole of New South Wales. Some parts of the State do not come within a local government area. For example, parts of the Western Division of the State (to which the Western Lands Act 1901 applies) and Lord Howe Island (to which the Lord Howe Island Act 1953 applies) are not subject to this Act.

Some local government areas or parts may not be subject to this Act (or to all of its provisions) because of special statutory exceptions. Other exceptions may be provided by regulations made under this Act.

6   Notes in the text

Introductions to Chapters, notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding.

Chapter 2 What are the purposes of this Act?

Introduction. This Chapter states the Parliament’s purposes in enacting this Act.

Section 51 of the Constitution Act 1902 provides:

(1)  There shall continue to be a system of local government for the State under which duly elected or duly appointed local government bodies are constituted with responsibilities for acting for the better government of those parts of the State that are from time to time subject to that system of local government.
(2)  The manner in which local government bodies are constituted and the nature and extent of their powers, authorities, duties and functions shall be as determined by or in accordance with laws of the Legislature.
(3)  The reference in subsection (2) to laws of the Legislature shall be read as a reference to laws that have been enacted by the Legislature, whether before or after the commencement of this section, and that are for the time being in force.
(4)  For the purposes of this section, the Western Lands Commissioner, the Lord Howe Island Board, and an administrator with all or any of the functions of a local government body, shall be deemed to be local government bodies.

The Chapter also aims to give an overview of the major elements in the system of local government in this State. It contains a diagram showing the way in which these elements relate to one another.

7   What are the purposes of this Act?

The purposes of this Act are as follows:
(a)  to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales,
(b)  to regulate the relationships between the people and bodies comprising the system of local government in New South Wales,
(c)  to encourage and assist the effective participation of local communities in the affairs of local government,
(d)  to give councils:
•  the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public
•  the responsibility for administering some regulatory systems under this Act
•  a role in the management, improvement and development of the resources of their areas,
(e)  to require councils, councillors and council employees to have regard to the principles of ecologically sustainable development in carrying out their responsibilities.
 

The system of local government in New South Wales

Chapter 3 What is a council’s charter?

Introduction. The charter contained in this Chapter comprises a set of principles that are to guide a council in the carrying out of its functions. A council may add other principles not inconsistent with those in the Chapter.

8   The council’s charter

(1)  A council has the following charter:
•  to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively
•  to exercise community leadership
•  to exercise its functions in a manner that is consistent with and actively promotes the multicultural principles
•  to promote and to provide and plan for the needs of children
•  to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development
•  to have regard to the long term and cumulative effects of its decisions
•  to bear in mind that it is the custodian and trustee of public assets and to effectively plan for, account for and manage the assets for which it is responsible
•  to engage in long-term strategic planning on behalf of the local community
•  to exercise its functions in a manner that is consistent with and promotes social justice principles of equity, access, participation and rights
•  to facilitate the involvement of councillors, members of the public, users of facilities and services and council staff in the development, improvement and co-ordination of local government
•  to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments and, when appropriate, by borrowings and grants
•  to keep the local community and the State government (and through it, the wider community) informed about its activities
•  to ensure that, in the exercise of its regulatory functions, it acts consistently and without bias, particularly where an activity of the council is affected
•  to be a responsible employer.
(2)  A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action.

Chapter 4 How can the community influence what a council does?

Introduction. Under this Chapter, meetings of the council and its committees are required, as a general rule, to be open to the public.

The Chapter provides for public access to information held by councils.

Apart from the provisions of this Chapter, members of the public may influence council decisions concerning matters such as the levels of rates and charges, the terms of community strategic plans, delivery programs and operational plans, the granting of development consents, etc (which are dealt with in later Chapters) by participating in council community engagement activities including by making submissions to the council and comments on or objections to proposals relating to those matters.

The Chapter also enables the council to ascertain the views of the local community on various matters through 2 types of polls which may be conducted in the area. A summary of these polls is contained in Part 3 of this Chapter.

Part 1 Open meetings

9   Public notice of meetings

(1)  A council must give notice to the public of the times and places of its meetings and meetings of those of its committees of which all the members are councillors.
(2)  A council and each such committee must have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting.
(2A)  In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public:
(a)  the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item), and
(b)  the requirements of subsection (2) with respect to the availability of business papers do not apply to the business papers for that item of business.
(3)  The copies are to be available to the public as nearly as possible to the time they are available to councillors.
(4)  The copies are to be available free of charge.
(5)  A notice given under this section or a copy of an agenda or of a business paper made available under this section may in addition be given or made available in electronic form.

10   Who is entitled to attend meetings?

(1)  Except as provided by this Part:
(a)  everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and
(b)  a council must ensure that all meetings of the council and of such committees are open to the public.
(2)  However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting:
(a)  by a resolution of the meeting, or
(b)  by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.
(3)  A person may be expelled from a meeting only on the grounds specified in, or in the circumstances prescribed by, the regulations.

10A   Which parts of a meeting can be closed to the public?

(1)  A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises:
(a)  the discussion of any of the matters listed in subclause (2), or
(b)  the receipt or discussion of any of the information so listed.
(2)  The matters and information are the following:
(a)  personnel matters concerning particular individuals (other than councillors),
(b)  the personal hardship of any resident or ratepayer,
(c)  information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,
(d)  commercial information of a confidential nature that would, if disclosed:
(i)  prejudice the commercial position of the person who supplied it, or
(ii)  confer a commercial advantage on a competitor of the council, or
(iii)  reveal a trade secret,
(e)  information that would, if disclosed, prejudice the maintenance of law,
(f)  matters affecting the security of the council, councillors, council staff or council property,
(g)  advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege,
(h)  information concerning the nature and location of a place or an item of Aboriginal significance on community land,
(i)  alleged contraventions of any code of conduct requirements applicable under section 440.
(3)  A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public.
(4)  A council, or a committee of a council, may allow members of the public to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed.
(5), (6)  (Repealed)

10B   Further limitations relating to closure of parts of meetings to public

(1)  A meeting is not to remain closed during the discussion of anything referred to in section 10A (2):
(a)  except for so much of the discussion as is necessary to preserve the relevant confidentiality, privilege or security, and
(b)  if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret—unless the council or committee concerned is satisfied that discussion of the matter in an open meeting would, on balance, be contrary to the public interest.
(2)  A meeting is not to be closed during the receipt and consideration of information or advice referred to in section 10A (2) (g) unless the advice concerns legal matters that:
(a)  are substantial issues relating to a matter in which the council or committee is involved, and
(b)  are clearly identified in the advice, and
(c)  are fully discussed in that advice.
(3)  If a meeting is closed during the discussion of a motion to close another part of the meeting to the public (as referred to in section 10A (3)), the consideration of the motion must not include any consideration of the matter or information to be discussed in that other part of the meeting (other than consideration of whether the matter concerned is a matter referred to in section 10A (2)).
(4)  For the purpose of determining whether the discussion of a matter in an open meeting would be contrary to the public interest, it is irrelevant that:
(a)  a person may misinterpret or misunderstand the discussion, or
(b)  the discussion of the matter may:
(i)  cause embarrassment to the council or committee concerned, or to councillors or to employees of the council, or
(ii)  cause a loss of confidence in the council or committee.
(5)  In deciding whether part of a meeting is to be closed to the public, the council or committee concerned must have regard to any relevant guidelines issued by the Director-General.

10C   Notice of likelihood of closure not required in urgent cases

Part of a meeting of a council, or of a committee of the council of which all the members are councillors, may be closed to the public while the council or committee considers a matter that has not been identified in the agenda for the meeting as a matter that is likely to be considered when the meeting is closed, but only if:
(a)  it becomes apparent during the discussion of a particular matter that the matter is a matter referred to in section 10A (2), and
(b)  the council or committee, after considering any representations made under section 10A (4), resolves that further discussion of the matter:
(i)  should not be deferred (because of the urgency of the matter), and
(ii)  should take place in a part of the meeting that is closed to the public.

10D   Grounds for closing part of meeting to be specified

(1)  The grounds on which part of a meeting is closed must be stated in the decision to close that part of the meeting and must be recorded in the minutes of the meeting.
(2)  The grounds must specify the following:
(a)  the relevant provision of section 10A (2),
(b)  the matter that is to be discussed during the closed part of the meeting,
(c)  the reasons why the part of the meeting is being closed, including (if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret) an explanation of the way in which discussion of the matter in an open meeting would be, on balance, contrary to the public interest.

10E   (Repealed)

11   Public access to correspondence and reports

(1)  A council and a committee of which all the members are councillors must, during or at the close of a meeting, or during the business day following the meeting, give reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, the meeting.
(2)  This section does not apply if the correspondence or reports:
(a)  relate to a matter that was received or discussed, or
(b)  were laid on the table at, or submitted to, the meeting,
when the meeting was closed to the public.
(3)  This section does not apply if the council or committee resolves at the meeting, when open to the public, that the correspondence or reports, because they relate to a matter specified in section 10A (2), are to be treated as confidential.

Part 2

12–13(Repealed)

Part 3 Expressions of community opinion

Division 1 Council polls

14   Council polls

A council may take a poll of electors for its information and guidance on any matter.

Division 2 Constitutional referendums

15   What is a constitutional referendum?

A constitutional referendum is a poll initiated by a council in order to give effect to a matter referred to in section 16.

16   What matters must be dealt with at a constitutional referendum?

A council may not do any of the following unless approval to do so has been given at a constitutional referendum:
(a)  divide its area into wards or abolish all wards in its area,
(b)  change the basis on which the mayor attains office (that is, by election by the councillors or by election by the electors),
(c)  increase or decrease the number of councillors in accordance with the limits under section 224,
(d)  change the method of ordinary election of councillors for an area divided into wards.
(e)  (Repealed)

17   What is the effect of a constitutional referendum?

(1)  The decision made at a constitutional referendum binds the council until changed by a subsequent constitutional referendum.
(2)  However, such a decision does not apply to a by-election held after the constitutional referendum and before the next ordinary election.

Division 3 General provisions concerning a council poll or constitutional referendum

18   What provisions apply to the conduct of a council poll or constitutional referendum?

Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How are people elected to civic office?) apply to a council poll, and Part 1 and Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional referendum, with such modifications as may be necessary, in the same way as they apply to an election.
Note. Part 1 of Chapter 10 identifies the people who are entitled to vote in council elections, and Part 6 governs the conduct of those elections.

Division 3 of Part 6 of that Chapter deals with nominations for election, Division 4 with failure to vote and Division 5 with miscellaneous matters such as irregularities of form or procedure in elections, overdue elections and those declared void.

19   Day for taking council poll or constitutional referendum

A council poll or constitutional referendum may be taken on any Saturday, including the Saturday of an ordinary election.

20   When is a question at a council poll or constitutional referendum carried?

(1)  The question at a council poll or constitutional referendum is carried if it is supported by a majority of the votes cast.
(2)  The reference to votes in subsection (1) does not include a reference to any vote that, pursuant to the regulations, is found to be informal.
 



Expressions of community opinion

Types of expression

Council Poll

Constitutional Referendum

Question to be determined

Any question

•  Creation or abolition of all wards
•  Change in the way in which the mayor is chosen
•  Change in number of councillors
•  Change in the way councillors are elected for an area divided into wards

Result of Poll

If Yes

If No

If Yes

If No

Council chooses whether or not to proceed

Change must proceed

Change cannot proceed until passed by a later constitutional referendum

Chapter 5 What are a council’s functions?

Introduction. This Chapter specifies a council’s functions. In doing so, it recognises that all functions of a council come from statute, either from this Act or another Act.

21   Functions under this Act

A council has the functions conferred or imposed on it by or under this Act.
Note. This Act classifies certain of a council’s functions as service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or ancillary (Chapter 8). Ancillary functions are those functions that assist the carrying out of a council’s service and regulatory functions.

A council also has revenue functions (Chapter 15), administrative functions (Chapters 11, 12 and 13) and functions relating to the enforcement of this Act (Chapters 16 and 17).

22   Other functions

A council has the functions conferred or imposed on it by or under any other Act or law.
Note. While the main functions of councils are provided for under this Act, councils also have functions under other Acts. An important general provision is contained in section 50 of the Interpretation Act 1987 which provides, in part:
(1)  A statutory corporation:
(a)  has perpetual succession,
(b)  shall have a seal,
(c)  may take proceedings and be proceeded against in its corporate name,
(d)  may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and
(e)  may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions …
(4)  This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.

Some other Acts and some of the functions they confer include:

Community Land Development Act 1989

planning functions as consent authority

Companion Animals Act 1998

companion animal registration and control

Conveyancing Act 1919

placing covenants on council land

Environmental Planning and Assessment Act 1979

environmental planning

Fire Brigades Act 1989

payment of contributions to fire brigade costs and furnishing of returns

Fluoridation of Public Water Supplies Act 1957

fluoridation of water supply by council

Food Act 2003

inspection of food and food premises

Impounding Act 1993

impounding of animals and articles

Library Act 1939

library services

Protection of the Environment Operations Act 1997

pollution control

Public Health Act 2010

inspection of systems for purposes of microbial control

Recreation Vehicles Act 1983

restricting use of recreation vehicles

Roads Act 1993

roads

Rural Fires Act 1997

issue of permits to light fires during bush fire danger periods

 

requiring the furnishing of information to the Rural Fire Service Advisory Council and its Co-ordinating Committee

State Emergency Service Act 1989

recommending appointment of local controller

Strata Schemes (Freehold Development) Act 1973

approval of strata plans

Strata Schemes (Leasehold Development) Act 1986

approval of leasehold strata plans

Swimming Pools Act 1992

ensuring restriction of access to swimming pools

The exercise by a council of its functions under this Act may also be modified by the provisions of another Act. Some of those Acts and some of the modifications they effect include:

Coastal Protection Act 1979

limitation on coastal development by councils

Environmental Offences and Penalties Act 1989

forfeiture of council functions to person appointed by Governor

Government Information (Public Access) Act 2009

council required to publish certain information and to grant access to certain documents

Heritage Act 1977

rating based on heritage valuation

Privacy and Personal Information Protection Act 1998

council required to amend certain records that are shown to be incomplete, incorrect, out of date or misleading

State Emergency and Rescue Management Act 1989

council required to prepare for emergencies

Unclaimed Money Act 1995

unclaimed money to be paid to the Chief Commissioner of Unclaimed Money

23   Supplementary, incidental and consequential functions

A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.

23A   Director-General’s guidelines

(1)  For the purposes of this Act, the Director-General may from time to time prepare, adopt or vary guidelines relating to the exercise by a council of any of its functions.
(2)  The Director-General may only prepare, adopt or vary guidelines relating to the exercise by a council of functions conferred or imposed on the council by or under any Act or law that is not administered by or the responsibility of the Department of Local Government if the Director-General has first obtained the concurrence of the Minister administering or responsible for the administration of the other Act or law.
(3)  A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions.
(4)  The guidelines for the time being in force are to be made available to councils on request and, on payment of such fee (if any) as the Director-General may determine, to any interested person.
 



WHAT ARE A COUNCIL’S FUNCTIONS?

A COUNCIL EXERCISES FUNCTIONS UNDER

THIS ACT

OTHER ACTS

SERVICE FUNCTIONS

REGULATORY FUNCTIONS

ANCILLARY FUNCTIONS

REVENUE FUNCTIONS

ADMINISTRATIVE FUNCTIONS

ENFORCEMENT FUNCTIONS

VARIOUS FUNCTIONS

For example:

• Providing community health, recreation, education & information services
• Environmental protection
• Waste removal & disposal
• Land & property, industry & tourism development & assistance

For other functions, see the Introduction to Chapter 6

• Approvals
• Orders
• Building certificates

• Resumption of land
• Powers of entry and inspection

• Rates
• Charges
• Fees
• Borrowings
• Investments

For example

• Employment of staff
• Management plans
• Financial reporting
• Annual reports

For example

• Proceedings for breaches of the Act
• Prosecution of offences
• Recovery of rates and charges

See the Note to section 22

Chapter 6 What are the service functions of councils?

Introduction. This Chapter confers on councils their service or non-regulatory functions. Examples of these functions include the provision, management or operation of:
•  community services and facilities
•  public health services and facilities
•  cultural, educational and information services and facilities
•  sporting, recreational and entertainment services and facilities
•  environment conservation, protection and improvement services and facilities
•  waste removal, treatment and disposal services and facilities
•  pest eradication and control services and facilities
•  public transport services and facilities
•  energy production, supply and conservation
•  water, sewerage and drainage works and facilities
•  storm water drainage and flood prevention, protection and mitigation services and facilities
•  fire prevention, protection and mitigation services and facilities
•  land and property development
•  housing
•  industry development and assistance
•  tourism development and assistance.

This list of examples is not exhaustive.

These functions are conferred in broad terms in Part 1. Particular provisions are made for the management of public land in Part 2. Part 3 imposes some restraints and qualifications on the exercise of the service functions.

A council may have other service functions under other Acts. For example, a council has functions relating to the provision and management of roads under the Roads Act 1993.

Part 1 General

24   Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

Part 2 Public land

Note. This Part requires all land vested in a council (except a road or land to which the Crown Lands Act 1989 applies) to be classified as either “community” or “operational”.

The classification will generally be achieved by a local environmental plan but may, in some circumstances, be achieved by resolution of the council (see sections 31, 32 and 33).

The purpose of classification is to identify clearly that land which should be kept for use by the general public (community) and that land which need not (operational). The major consequence of classification is that it determines the ease or difficulty with which land may be alienated by sale, leasing or some other means.

Community land must not be sold (except in the limited circumstances referred to in section 45 (4)). Community land must not be leased or licensed for more than 21 years and may only be leased or licensed for more than 5 years if public notice of the proposed lease or licence is given and, in the event that an objection is made to the proposed lease or licence, the Minister’s consent is obtained. No such restrictions apply to operational land.

Classification or reclassification of land does not affect any estate or interest a council has in the land.

Community land would ordinarily comprise land such as a public park. Operational land would ordinarily comprise land held as a temporary asset or as an investment, land which facilitates the carrying out by a council of its functions or land which may not be open to the general public, such as a works depot or a council garage.

The use and management of community land is to be regulated by a plan of management. Until a plan of management is adopted, the nature and use of the land must not change.

Division 1 Classification and reclassification of public land

25   All public land must be classified

All public land must be classified in accordance with this Part.

26   What are the classifications?

There are 2 classifications for public land—“community” and “operational”.
Note. On the commencement of this Part, certain land that is vested in or under the control of a council is taken to have been classified as community land by the operation of clause 6 of Schedule 7.

27   How are the classifications made?

(1)  The classification or reclassification of public land may be made by a local environmental plan.
(2)  The classification or reclassification of public land may also be made by a resolution of the council under section 31, 32 or 33.

28   Forwarding of planning proposals to Minister for Planning

(1)  A council may not forward a planning proposal to the Minister for Planning under section 56 of the Environmental Planning and Assessment Act 1979 which includes a proposal to classify or reclassify public land that is not owned by the council unless the council has obtained the consent of the owner to the proposed classification or reclassification of public land.
(2)  A local environmental plan that classifies or reclassifies public land may apply to one or more areas of public land.

29   Public hearing into reclassification

(1)  A council must arrange a public hearing under section 57 of the Environmental Planning and Assessment Act 1979 in respect of a planning proposal under Part 3 of that Act to reclassify community land as operational land, unless a public hearing has already been held in respect of the same matter as a result of a determination under section 56 (2) (e) of that Act.
(2)  A council must, before making any resolution under section 32, arrange a public hearing in respect of any proposal to reclassify land as operational land by such a resolution.

30   Reclassification of community land as operational

(1)  A local environmental plan that reclassifies community land as operational land may make provision to the effect that, on commencement of the plan, the land, if it is a public reserve, ceases to be a public reserve, and that the land is by operation of the plan discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, except for:
(a)  any reservations that except land out of a Crown grant relating to the land, and
(b)  reservations of minerals (within the meaning of the Crown Lands Act 1989).
(2)  A provision referred to in subsection (1) has effect according to its tenor, but only if the Governor has, before the making of the local environmental plan, approved of the provision.

31   Classification of land acquired after 1 July 1993

(1)  This section applies to land that is acquired by a council after the commencement of this Division, other than:
(a)  land to which the Crown Lands Act 1989 applied before the acquisition and continues to apply after the acquisition, and
(b)  land that is acquired for the purpose of a road.
(2)  Before a council acquires land, or within 3 months after it acquires land, a council may resolve (in accordance with this Part) that the land be classified as community land or operational land.
(2A)  Any land acquired by a council that is not classified under subsection (2) is, at the end of the period of 3 months referred to in that subsection, taken to have been classified under a local environmental plan as community land.
(2B)  While the land remains unclassified:
(a)  the land may not be used for any purpose other than that for which it was being used immediately before it was acquired, and
(b)  the council may not dispose of any interest in the land.
(3)  A council must not resolve under this section that land be classified as operational land if:
(a)  the land is classified as community land immediately before its acquisition, or
(b)  the resolution would be inconsistent with any other Act, the terms of any trust applying to the land or the terms of any instrument executed by the donor or transferor of the land.

32   Reclassification of land dedicated under sec 94 of the Environmental Planning and Assessment Act 1979

(1)  A council may resolve that land dedicated in accordance with a condition imposed under section 94 of the Environmental Planning and Assessment Act 1979 is to be reclassified as operational land.
(2)  A council may make such a resolution only if it is satisfied that the land has been found to be unsuitable for the provision, extension or augmentation of public amenities and public services because of any one or more of the following:
•  the size of the land
•  the shape of the land
•  the topography of the land
•  the location of the land
•  the difficulty of providing public access to the land.
(3)  The council must specify in the resolution the grounds on which it is satisfied the land is unsuitable.
(4)  Before making the resolution, the council must give public notice of the resolution. The public notice must specify a period of not less than 28 days during which submissions may be made to the council.
(5)  The net proceeds of sale by a council of any land dedicated in accordance with a condition imposed under section 94 of the Environmental Planning and Assessment Act 1979 must be dealt with under that section as if those net proceeds were a monetary contribution paid instead of the dedication.

33   Reclassification of operational land as community land

(1)  A council may resolve that public land classified as operational land is to be reclassified as community land.
(2)  (Repealed)

34   Public notice to be given of classification or reclassification by council resolution

(1)  A council must give public notice of a proposed resolution to classify or reclassify public land.
(2)  The public notice must include the terms of the proposed resolution and a description of the public land concerned.
(3)  The public notice must specify a period of not less than 28 days during which submissions may be made to the council.
(4)  (Repealed)

Division 2 Use and management of community land

35   What governs the use and management of community land?

Community land is required to be used and managed in accordance with the following:
•  the plan of management applying to the land
•  any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land
•  this Division.

36   Preparation of draft plans of management for community land

(1)  A council must prepare a draft plan of management for community land.
(2)  A draft plan of management may apply to one or more areas of community land, except as provided by this Division.
(3)  A plan of management for community land must identify the following:
(a)  the category of the land,
(b)  the objectives and performance targets of the plan with respect to the land,
(c)  the means by which the council proposes to achieve the plan’s objectives and performance targets,
(d)  the manner in which the council proposes to assess its performance with respect to the plan’s objectives and performance targets,
and may require the prior approval of the council to the carrying out of any specified activity on the land.
(3A)  A plan of management that applies to just one area of community land:
(a)  must include a description of:
(i)  the condition of the land, and of any buildings or other improvements on the land, as at the date of adoption of the plan of management, and
(ii)  the use of the land and any such buildings or improvements as at that date, and
(b)  must:
(i)  specify the purposes for which the land, and any such buildings or improvements, will be permitted to be used, and
(ii)  specify the purposes for which any further development of the land will be permitted, whether under lease or licence or otherwise, and
(iii)  describe the scale and intensity of any such permitted use or development.
(4)  For the purposes of this section, land is to be categorised as one or more of the following:
(a)  a natural area,
(b)  a sportsground,
(c)  a park,
(d)  an area of cultural significance,
(e)  general community use.
(5)  Land that is categorised as a natural area is to be further categorised as one or more of the following:
(a)  bushland,
(b)  wetland,
(c)  escarpment,
(d)  watercourse,
(e)  foreshore,
(f)  a category prescribed by the regulations.
(6)  The regulations may make provision for or with respect to the categorisation of community land under this section, including:
(a)  defining any expression used in subsection (4) or (5), and
(b)  prescribing guidelines for the categorisation of community land and the effect of any guidelines so prescribed.

36A   Community land comprising the habitat of endangered species

(1)  In this section:

critical habitat means:

(a)  an area declared to be critical habitat under the Threatened Species Conservation Act 1995, or
(b)  an area declared to be critical habitat under Part 7A of the Fisheries Management Act 1994.

relevant Director means:

(a)  in relation to critical habitat being an area declared to be critical habitat under the Threatened Species Conservation Act 1995, the Director-General of National Parks and Wildlife, and
(b)  in relation to critical habitat being an area declared to be critical habitat under Part 7A of the Fisheries Management Act 1994, the Director of NSW Fisheries.

(2)  A plan of management adopted in respect of an area of community land, all or part of which consists of critical habitat, is to apply to that area only, and not to other areas of land.
(3)  A plan of management to be adopted for an area of community land, all or part of which consists of critical habitat:
(a)  must, subject to any decision of the Director-General of National Parks and Wildlife under section 146 of the Threatened Species Conservation Act 1995 or any decision of the Director of Fisheries under section 220Y of the Fisheries Management Act 1994, state that the land, or the relevant part, is critical habitat, and
(b)  must, in complying with section 36 (3) (a), categorise the land, or the relevant part, as a natural area, and
(c)  must, in complying with section 36 (3) (b), (c) and (d), identify objectives, performance targets and other matters that:
(i)  take account of the existence of the critical habitat, and
(ii)  are consistent with the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, and
(iii)  incorporate the core objectives prescribed under section 36 in respect of community land categorised as a natural area, and
(d)  must:
(i)  when public notice is given of the draft plan under section 38, be sent (or a copy must be sent) by the council to the relevant Director, and
(ii)  incorporate any matter specified by the relevant Director in relation to the land, or the relevant part.
(4)  If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes critical habitat:
(a)  the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as a natural area, and
(b)  the council must amend the plan of management (and, in doing so, the provisions of subsection (3) (a), (c) and (d) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and
(c)  until the plan of management has been amended as required by paragraph (b):
(i)  the use of the land must not be varied, except to the extent necessary to further the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as a natural area, or to terminate the use, and
(ii)  no lease, licence or other estate may be granted in respect of the land.
(5)  If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes critical habitat:
(a)  the plan of management ceases, as from the date the declaration took effect, to apply to that area, and
(b)  a plan of management must be prepared and adopted by the council for that area, and
(c)  the plan of management so prepared and adopted must comply with subsection (3).

36B   Community land comprising the habitat of threatened species

(1)  In this section:

recovery plan means a recovery plan under Part 4 of the Threatened Species Conservation Act 1995 or Division 5 of Part 7A of the Fisheries Management Act 1994.

relevant Director means:

(a)  in relation to a recovery plan under Part 4 of the Threatened Species Conservation Act 1995 or a threat abatement plan under Part 5 of that Act, the Director-General of National Parks and Wildlife, and
(b)  in relation to a recovery plan or a threat abatement plan under Division 5 of Part 7A of the Fisheries Management Act 1994, the Director of NSW Fisheries.

threat abatement plan means a threat abatement plan under Part 5 of the Threatened Species Conservation Act 1995 or Division 5 of Part 7A of the Fisheries Management Act 1994.

(2)  For the purposes of this section, land is directly affected by a recovery plan or threat abatement plan only if the plan concerned requires measures specified in the plan to be taken by a specified council on or in respect of the land.
(3)  A plan of management adopted in respect of an area of community land, all or part of which is directly affected by a recovery plan or threat abatement plan, is to apply to that area only, and not to other areas of land.
(4)  A plan of management to be adopted for an area of community land, all or part of which is directly affected by a recovery plan or threat abatement plan:
(a)  must state that the land, or the relevant part, is so affected, and
(b)  must, in complying with section 36 (3) (a), categorise the land, or the relevant part, as a natural area, and
(c)  must, in complying with section 36 (3) (b), (c) and (d), identify objectives, performance targets and other matters that:
(i)  take account of the council’s obligations under the recovery plan or threat abatement plan in relation to the land, and
(ii)  are otherwise consistent with the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, and
(iii)  incorporate the core objectives prescribed under section 36 in respect of community land categorised as a natural area, and
(d)  must:
(i)  when public notice is given of the draft plan under section 38, be sent (or a copy must be sent) by the council to the relevant Director, and
(ii)  incorporate any matter specified by the relevant Director in relation to the land, or the relevant part.
(5)  If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes directly affected by a recovery plan or threat abatement plan:
(a)  the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as a natural area, and
(b)  the council must amend the plan of management (and, in doing so, the provisions of subsection (4) (a), (c) and (d) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and
(c)  until the plan of management has been amended as required by paragraph (b):
(i)  the use of the land must not be varied, except to the extent necessary to further the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as a natural area, or to terminate the use, and
(ii)  no lease, licence or other estate may be granted in respect of the land.
(6)  If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes directly affected by a recovery plan or threat abatement plan:
(a)  the plan of management ceases, as from the date the declaration took effect, to apply to that area, and
(b)  a plan of management must be prepared and adopted by the council for that area, and
(c)  the plan of management so prepared and adopted must comply with subsection (4).

36C   Community land containing significant natural features

(1)  This section applies to community land that is the subject of a resolution by the council that declares that the land, being the site of:
(a)  a known natural, geological, geomorphological, scenic or other feature that is considered by the council to warrant protection or special management considerations, or
(b)  a wildlife corridor,
is land to which this section applies.
(2)  A plan of management adopted in respect of an area of community land, all or part of which is land to which this section applies, is to apply to that area only, and not to other areas of land.
(3)  A plan of management to be adopted for an area of community land, all or part of which is land to which this section applies:
(a)  must state that the land, or the relevant part, is land to which this section applies, and the reason why, and
(b)  must, in complying with section 36 (3) (a), categorise the land, or the relevant part, as a natural area, and
(c)  must, in complying with section 36 (3) (b), (c) and (d), identify objectives, performance targets and other matters that:
(i)  are designed to protect the area, and
(ii)  take account of the existence of the features of the site identified by the council’s resolution, and
(iii)  incorporate the core objectives prescribed under section 36 in respect of community land categorised as a natural area.
(4)  If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes the subject of a resolution of the kind described in subsection (1):
(a)  the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as a natural area, and
(b)  the council must amend the plan of management (and in doing so, the provisions of subsection (3) (a) and (c) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and
(c)  until the plan of management has been amended as required by paragraph (b):
(i)  the use of the land must not be varied, except to the extent necessary to protect the features of the site identified in the council’s resolution or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as a natural area, or to terminate the use, and
(ii)  no lease, licence or other estate may be granted in respect of the land.
(5)  If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes the subject of a resolution of the kind described in subsection (1):
(a)  the plan of management ceases, as from the date the declaration took effect, to apply to that area, and
(b)  a plan of management must be prepared and adopted by the council for that area, and
(c)  the plan of management so prepared and adopted must comply with subsection (3).

36D   Community land comprising area of cultural significance

(1)  This section applies to community land that is the subject of a resolution by the council that declares that, because of the presence on the land of any item that the council considers to be of Aboriginal, historical or cultural significance, the land is an area of cultural significance for the purposes of this Part.
(2)  A plan of management adopted in respect of an area of land, all or part of which is land to which this section applies, is to apply to that land only, and not to other areas.
(3)  A plan of management to be adopted for an area of community land, all or part of which consists of land to which this section applies:
(a)  must state that the land, or the relevant part, is an area of cultural significance, and
(b)  must, in complying with section 36 (3) (a), categorise the land, or the relevant part, as an area of cultural significance, and
(c)  must, in complying with section 36 (3) (b), (c) and (d), identify objectives, performance targets and other matters that:
(i)  are designed to protect the area, and
(ii)  take account of the existence of the features of the site identified by the council’s resolution, and
(iii)  incorporate the core objectives prescribed under section 36 in respect of community land categorised as an area of cultural significance, and
(d)  must:
(i)  when public notice is given of it under section 38, be sent (or a copy must be sent) by the council to the Director-General of National Parks and Wildlife, and
(ii)  incorporate any matter specified by the Director-General of National Parks and Wildlife in relation to the land, or the relevant part.
(4)  If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes the subject of a resolution of the kind described in subsection (1):
(a)  the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as an area of cultural significance, and
(b)  the council must amend the plan of management (and in doing so, the provisions of subsection (3) (a), (c) and (d) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and
(c)  until the plan of management has been amended as required by paragraph (b):
(i)  the use of the land must not be varied, except to the extent necessary to protect any item identified in the council’s resolution or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as an area of cultural significance, or to terminate the use, and
(ii)  no lease, licence or other estate may be granted in respect of the land.
(5)  If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes the subject of a resolution of the kind described in subsection (1):
(a)  the plan of management ceases, as from the date the declaration took effect, to apply to that area, and
(b)  a plan of management must be prepared and adopted by the council for that area, and
(c)  the plan of management so prepared and adopted must comply with subsection (3).

36DA   Location of places and items of Aboriginal significance may be kept confidential

(1)  This section applies to draft and adopted plans of management for areas of community land, all or part of which consist of land to which section 36D applies.
(2)  A council may resolve (at the request of any Aboriginal person traditionally associated with the land concerned or on the council’s own initiative) to keep confidential such parts of a draft or adopted plan of management to which this section applies as would disclose the nature and location of a place or an item of Aboriginal significance.
(3)  Despite any other provision of this Act (including sections 38, 39 and 43) or any other law, councillors and council employees are not to disclose that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under subsection (2), except with the consent of the council.
(4)  A draft or adopted plan of management that is the subject of a resolution of confidentiality under subsection (2) must contain a note stating that the whole of the plan is affected by the resolution or identifying the parts that are so affected.
(5)  A council proposing to prepare a draft plan of management to which this section applies must (in accordance with the regulations) consult with the appropriate Aboriginal communities regarding public access to, and use of, information concerning any places or items of Aboriginal significance on the land concerned.

36E   Core objectives for management of community land categorised as a natural area

The core objectives for management of community land categorised as a natural area are:
(a)  to conserve biodiversity and maintain ecosystem function in respect of the land, or the feature or habitat in respect of which the land is categorised as a natural area, and
(b)  to maintain the land, or that feature or habitat, in its natural state and setting, and
(c)  to provide for the restoration and regeneration of the land, and
(d)  to provide for community use of and access to the land in such a manner as will minimise and mitigate any disturbance caused by human intrusion, and
(e)  to assist in and facilitate the implementation of any provisions restricting the use and management of the land that are set out in a recovery plan or threat abatement plan prepared under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994.

36F   Core objectives for management of community land categorised as a sportsground

The core objectives for management of community land categorised as a sportsground are:
(a)  to encourage, promote and facilitate recreational pursuits in the community involving organised and informal sporting activities and games, and
(b)  to ensure that such activities are managed having regard to any adverse impact on nearby residences.

36G   Core objectives for management of community land categorised as a park

The core objectives for management of community land categorised as a park are:
(a)  to encourage, promote and facilitate recreational, cultural, social and educational pastimes and activities, and
(b)  to provide for passive recreational activities or pastimes and for the casual playing of games, and
(c)  to improve the land in such a way as to promote and facilitate its use to achieve the other core objectives for its management.

36H   Core objectives for management of community land categorised as an area of cultural significance

(1)  The core objectives for management of community land categorised as an area of cultural significance are to retain and enhance the cultural significance of the area (namely its Aboriginal, aesthetic, archaeological, historical, technical or research or social significance) for past, present or future generations by the active use of conservation methods.
(2)  Those conservation methods may include any or all of the following methods:
(a)  the continuous protective care and maintenance of the physical material of the land or of the context and setting of the area of cultural significance,
(b)  the restoration of the land, that is, the returning of the existing physical material of the land to a known earlier state by removing accretions or by reassembling existing components without the introduction of new material,
(c)  the reconstruction of the land, that is, the returning of the land as nearly as possible to a known earlier state,
(d)  the adaptive reuse of the land, that is, the enhancement or reinforcement of the cultural significance of the land by the introduction of sympathetic alterations or additions to allow compatible uses (that is, uses that involve no changes to the cultural significance of the physical material of the area, or uses that involve changes that are substantially reversible or changes that require a minimum impact),
(e)  the preservation of the land, that is, the maintenance of the physical material of the land in its existing state and the retardation of deterioration of the land.
(3)  A reference in subsection (2) to land includes a reference to any buildings erected on the land.

36I   Core objectives for management of community land categorised as general community use

The core objectives for management of community land categorised as general community use are to promote, encourage and provide for the use of the land, and to provide facilities on the land, to meet the current and future needs of the local community and of the wider public:
(a)  in relation to public recreation and the physical, cultural, social and intellectual welfare or development of individual members of the public, and
(b)  in relation to purposes for which a lease, licence or other estate may be granted in respect of the land (other than the provision of public utilities and works associated with or ancillary to public utilities).

36J   Core objectives for management of community land categorised as bushland

The core objectives for management of community land categorised as bushland are:
(a)  to ensure the ongoing ecological viability of the land by protecting the ecological biodiversity and habitat values of the land, the flora and fauna (including invertebrates, fungi and micro-organisms) of the land and other ecological values of the land, and
(b)  to protect the aesthetic, heritage, recreational, educational and scientific values of the land, and
(c)  to promote the management of the land in a manner that protects and enhances the values and quality of the land and facilitates public enjoyment of the land, and to implement measures directed to minimising or mitigating any disturbance caused by human intrusion, and
(d)  to restore degraded bushland, and
(e)  to protect existing landforms such as natural drainage lines, watercourses and foreshores, and
(f)  to retain bushland in parcels of a size and configuration that will enable the existing plant and animal communities to survive in the long term, and
(g)  to protect bushland as a natural stabiliser of the soil surface.

36K   Core objectives for management of community land categorised as wetland

The core objectives for management of community land categorised as wetland are:
(a)  to protect the biodiversity and ecological values of wetlands, with particular reference to their hydrological environment (including water quality and water flow), and to the flora, fauna and habitat values of the wetlands, and
(b)  to restore and regenerate degraded wetlands, and
(c)  to facilitate community education in relation to wetlands, and the community use of wetlands, without compromising the ecological values of wetlands.

36L   Core objectives for management of community land categorised as an escarpment

The core objectives for management of community land categorised as an escarpment are:
(a)  to protect any important geological, geomorphological or scenic features of the escarpment, and
(b)  to facilitate safe community use and enjoyment of the escarpment.

36M   Core objectives for management of community land categorised as a watercourse

The core objectives for management of community land categorised as a watercourse are:
(a)  to manage watercourses so as to protect the biodiversity and ecological values of the instream environment, particularly in relation to water quality and water flows, and
(b)  to manage watercourses so as to protect the riparian environment, particularly in relation to riparian vegetation and habitats and bank stability, and
(c)  to restore degraded watercourses, and
(d)  to promote community education, and community access to and use of the watercourse, without compromising the other core objectives of the category.

36N   Core objectives for management of community land categorised as foreshore

The core objectives for management of community land categorised as foreshore are:
(a)  to maintain the foreshore as a transition area between the aquatic and the terrestrial environment, and to protect and enhance all functions associated with the foreshore’s role as a transition area, and
(b)  to facilitate the ecologically sustainable use of the foreshore, and to mitigate impact on the foreshore by community use.

37   Requirements of plans of management for community land that is not owned by the council

A plan of management for community land that is not owned by the council:
(a)  must identify the owner of the land, and
(b)  must state whether the land is subject to any trust, estate, interest, dedication, condition, restriction or covenant, and
(c)  must state whether the use or management of the land is subject to any condition or restriction imposed by the owner, and
(d)  must not contain any provisions inconsistent with anything required to be stated by paragraph (a), (b) or (c).

38   Public notice of draft plans of management

(1)  A council must give public notice of a draft plan of management.
(2)  The period of public exhibition of the draft plan must be not less than 28 days.
(3)  The public notice must also specify a period of not less than 42 days after the date on which the draft plan is placed on public exhibition during which submissions may be made to the council.
(4)  The council must, in accordance with its notice, publicly exhibit the draft plan together with any other matter which it considers appropriate or necessary to better enable the draft plan and its implications to be understood.

39   Notice to owner of draft plan of management

(1)  Before giving public notice of a draft plan of management in accordance with section 38, the council must forward a copy of the draft plan to the person who owns or controls the land if the land is not owned by the council.
(2)  The council must include in the draft plan any provisions that may properly be required by the person who owns or controls the land.

40   Adoption of plans of management

(1)  After considering all submissions received by it concerning the draft plan of management, the council may decide to amend the draft plan or to adopt it without amendment as the plan of management for the community land concerned.
(2)  If the council decides to amend the draft plan it must either:
(a)  publicly exhibit the amended draft plan in accordance with the provisions of this Division relating to the public exhibition of draft plans, or
(b)  if it is of the opinion that the amendments are not substantial, adopt the amended draft plan without public exhibition as the plan of management for the community land concerned.
(2A)  If a council adopts an amended plan without public exhibition of the amended draft plan, it must give public notice of that adoption, and of the terms of the amended plan of management, as soon as practicable after the adoption.
(3)  The council may not, however, proceed to adopt the plan until any public hearing required under section 40A has been held in accordance with section 40A.

40A   Public hearing in relation to proposed plans of management

(1)  The council must hold a public hearing in respect of a proposed plan of management (including a plan of management that amends another plan of management) if the proposed plan would have the effect of categorising, or altering the categorisation of, community land under section 36 (4).
(2)  However, a public hearing is not required if the proposed plan would merely have the effect of altering the categorisation of the land under section 36 (5).
(3)  A council must hold a further public hearing in respect of the proposed plan of management if:
(a)  the council decides to amend the proposed plan after a public hearing has been held in accordance with this section, and
(b)  the amendment of the plan would have the effect of altering the categorisation of community land under section 36 (4) from the categorisation of that land in the proposed plan that was considered at the previous public hearing.

41   Amendment of plans of management

A council may amend a plan of management adopted under this Division by means only of a plan of management so adopted.

42   Revocation and cessation of plans of management

(1)  A plan of management for community land may be revoked by a plan of management adopted under this Division by the council.
(2)  A plan of management ceases to apply to land if:
(a)  the land is reclassified as operational land, or
(b)  in the case of land that is not owned by the council—the land ceases to be controlled by the council.

43   Public availability of plans of management

A plan of management must be available for public inspection at, and purchase from, the office of the council during ordinary office hours.

44   Use of community land pending adoption of plan of management

Pending the adoption of a plan of management for community land, the nature and use of the land must not be changed.

45   What dealings can a council have in community land?

(1)  A council has no power to sell, exchange or otherwise dispose of community land.
(2)  A council may grant a lease or licence of community land, but only in accordance with this Division.
(3)  A council may grant any other estate in community land to the extent permitted by this Division or under the provisions of another Act.
Note. The word estate has a wide meaning. See the Interpretation Act 1987, section 21 (1).
(4)  This section does not prevent a council from selling, exchanging or otherwise disposing of community land for the purpose of enabling that land to become, or be added to, a Crown reserve or to become, or be added to, land that is reserved or dedicated under the National Parks and Wildlife Act 1974.

46   Leases, licences and other estates in respect of community land—generally

(1)  A lease, licence or other estate in respect of community land:
(a)  may be granted for the provision of public utilities and works associated with or ancillary to public utilities, or
(a1)  may be granted for the purpose of providing pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider, or
(b)  may be granted, in accordance with an express authorisation in the plan of management and such provisions of the plan of management as apply to the granting of the lease, licence or other estate:
(i)  for a purpose prescribed by subsection (4), or for a purpose prescribed by any of sections 36E to 36N as a core objective of the categorisation of the land concerned, or
(ii)  for a purpose prescribed by the regulations, if the plan of management applies to several areas of community land, or
(iii)  for a short-term, casual purpose prescribed by the regulations, or
(iv)  for a residential purpose in relation to housing owned by the council, or
(v)  (Repealed)
(c)  may be granted in order to allow a filming project to be carried out, whether or not the project is in accordance with the plan of management or is consistent with the core objectives of the categorisation of the land concerned,
but may not otherwise be granted.
(2)  Despite subsection (1), a lease, licence or other estate in respect of community land may be granted for a purpose mentioned in subsection (1) (b) only if the purpose for which it is granted is consistent with the core objectives, as prescribed in this Part, of its categorisation.
(3)  A council must not grant a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 30 years.
(4)  The following purposes are prescribed for the purposes of subsection (1) (b) (i):
(a)  the provision of goods, services and facilities, and the carrying out of activities, appropriate to the current and future needs within the local community and of the wider public in relation to any of the following:
(i)  public recreation,
(ii)  the physical, cultural, social and intellectual welfare or development of persons,
(b)  the provision of public roads.
(5)  Purposes prescribed by subsection (4) in relation to the matters mentioned in subsection (4) (a) (ii) include, but are not limited to, maternity welfare centres, infant welfare centres, kindergartens, nurseries, child care centres, family day-care centres, surf life saving clubs, restaurants or refreshment kiosks.
(5A)  A council must grant an application under subsection (1) (c) for a lease, licence or other estate in respect of community land in order to allow a filming project to be carried out on the land unless:
(a)  the community land is land referred to in section 47AA (1), or
(b)  the plan of management for the land expressly prohibits use of the land for the purposes of filming projects, or
(c)  the council is satisfied that there are exceptional circumstances that warrant refusal of the application.
(5B)  Before refusing an application on a ground referred to in subsection (5A) (c), the council must consider whether any concerns it has could be addressed by imposing conditions on the grant.
(5C)  If the council refuses an application, it must:
(a)  inform the applicant in writing of its decision as soon as practicable after it is made, and
(b)  give the applicant reasons in writing for its decision within 3 business days after it is made.
(6)  A plan of management is void to the extent that it purports to authorise the grant of a lease, licence or other estate in contravention of this section.

46A   Means of granting leases, licences and other estates

(1)  A plan of management is to specify, in relation to the community land to which it applies, any purposes for which a lease, licence or other estate may be granted only by tender in accordance with Division 1 of Part 3.
(2)  Nothing in this section precludes a council from applying a tender process in respect of the grant of any particular lease, licence or estate.
(3)  A lease or licence for a term exceeding 5 years may be granted only by tender in accordance with Division 1 of Part 3, unless it is granted to a non-profit organisation.

47   Leases, licences and other estates in respect of community land—terms greater than 5 years

(1)  If a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must:
(a)  give public notice of the proposal, and
(b)  exhibit notice of the proposal on the land to which the proposal relates, and
(c)  give notice of the proposal to such persons as appear to it to own or occupy the land adjoining the community land, and
(d)  give notice of the proposal to any other person, appearing to the council to be the owner or occupier of land in the vicinity of the community land, if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person’s enjoyment of community land.
(2)  A notice of the proposal must include:
•  information sufficient to identify the community land concerned
•  the purpose for which the land will be used under the proposed lease, licence or other estate
•  the term of the proposed lease, licence or other estate (including particulars of any options for renewal)
•  the name of the person to whom it is proposed to grant the lease, licence or other estate (if known)
•  a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice.
(3)  Any person may make a submission in writing to the council during the period specified for the purpose in the notice.
(4)  Before granting the lease, licence or other estate, the council must consider all submissions duly made to it.
(5)  The council must not grant the lease, licence or other estate except with the Minister’s consent, if:
(a)  a person makes a submission by way of objection to the proposal, or
(b)  in the case of a lease or licence, the period (including any period for which the lease or licence could be renewed by the exercise of an option) of the lease or licence exceeds 21 years.
(6)  If the council applies for the Minister’s consent, it must forward with its application:
•  a copy of the plan of management for the land
•  details of all objections received and a statement setting out, for each objection, the council’s decision and the reasons for its decision
•  a statement setting out all the facts concerning the proposal to grant the lease, licence or other estate
•  a copy of the newspaper notice of the proposal
•  a statement setting out the terms, conditions, restrictions and covenants proposed to be included in the lease, licence or other estate
•  if the application relates to a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 21 years, a statement outlining the special circumstances that justify the period of the lease or licence exceeding 21 years
•  a statement setting out the manner in which and the extent to which the public interest would, in the council’s opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council’s opinion, be adversely affected by the granting of the proposed lease, licence or other estate.
(7)  On receipt of the application, the Minister must request the Director of Planning to furnish a report concerning the application within such period as the Minister specifies.
(8)  After considering the application and any report of the Director of Planning, the Minister, if satisfied that:
(a)  subsections (1), (2) and (6) have been complied with, and
(b)  such consent would not contravene section 46, and
(c)  in all the circumstances, it is desirable to grant consent,
may consent to the granting of a lease, licence or other estate in respect of the whole or part of the land to which the application relates, subject to such terms and conditions as the Minister specifies.
(8AA)  The Minister may consent to a lease or licence referred to in subsection (5) (b) only if the Minister is satisfied that there are special circumstances that justify the period of the lease or licence exceeding 21 years.
(8A)  On request by any person, the Minister must provide that person, within 14 days of that request, with a written statement of reasons for consenting to, or refusing to consent to, the granting of a lease, licence or other estate in accordance with subsection (8).
(9)  The Minister’s consent is conclusive evidence that the council has complied with subsections (1), (2) and (6).
(10)  For the purposes of this section, any provision made by a lease or licence, or by an instrument granting any other estate, in respect of community land, according to which the council:
(a)  would suffer a disadvantage or penalty if the same or a similar lease, licence or estate were not to be granted, for a further term, after the expiry of the current lease, licence or other estate, or
(b)  would enjoy an advantage or benefit if the same or a similar lease, licence or estate were to be so granted,
is taken to confer an option for renewal for a term equal to the further term.

47A   Leases, licences and other estates in respect of community land—terms of 5 years or less

(1)  This section applies to a lease, licence or other estate in respect of community land granted for a period that (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) does not exceed 5 years, other than a lease, licence or other estate exempted by the regulations.
(2)  If a council proposes to grant a lease, licence or other estate to which this section applies:
(a)  the proposal must be notified and exhibited in the manner prescribed by section 47, and
(b)  the provisions of section 47 (3) and (4) apply to the proposal, and
(c)  on receipt by the council of a written request from the Minister, the proposal is to be referred to the Minister, who is to determine whether or not the provisions of section 47 (5)–(9) are to apply to the proposal.
(3)  If the Minister, under subsection (2) (c), determines that the provisions of section 47 (5)–(9) are to apply to the proposal:
(a)  the council, the Minister and the Director of Planning are to deal with the proposal in accordance with the provisions of section 47 (1)–(8), and
(b)  section 47 (9) has effect with respect to the Minister’s consent.

47AA   Special provisions for leases, licences and other estates granted for filming projects

(1)  A council that proposes to grant a lease, licence or other estate in respect of community land under section 47A in order to allow a filming project to be carried out on community land:
(a)  that is critical habitat (as defined in section 36A (1)), or
(b)  that is directly affected by a recovery plan or threat abatement plan, as referred to in section 36B (2), or
(c)  that is declared to be an area of cultural significance under section 36D (1) because of the presence on the land of any item that the council considers to be of Aboriginal significance,
must, in addition to complying with section 47A, notify or advertise the proposal in the manner prescribed by the regulations for the purposes of this section.
(2)  Despite section 47A (2), a council that is of the opinion that a filming project proposed to be carried out under a lease, licence or other estate granted under section 47A will have a minor impact on the environment and on public amenity may state in the notice of the proposal required by section 47A (2) that submissions in writing may be made to the council concerning the proposal within a period, not less than 7 days, specified in the notice.
(3)  Regulations may be made for or with respect to guidelines that must be taken into consideration by councils in determining whether to grant a lease, licence or other estate in respect of community land in order to allow a filming project to be carried out on the land.

47B   Lease or licence in respect of natural area

(1)  A lease, licence or other estate must not be granted, in respect of community land categorised as a natural area:
(a)  to authorise the erection or use of a building or structure that is not a building or structure of a kind prescribed by this section or the regulations, or
(b)  to authorise the erection or use of a building or structure that is not for a purpose prescribed by this section or the regulations.
(2)  A lease, licence or instrument granting any other estate is void to the extent that its provisions are inconsistent with this section.
(3)  In this section, erection of a building or structure includes rebuilding or replacement of a building or structure.
(4)  The following buildings and structures are prescribed for the purposes of subsection (1) (a):
(a)  walkways,
(b)  pathways,
(c)  bridges,
(d)  causeways,
(e)  observation platforms,
(f)  signs.
(5)  The following purposes are prescribed for the purposes of subsection (1) (b):
(a)  information kiosks,
(b)  refreshment kiosks (but not restaurants),
(c)  work sheds or storage sheds required in connection with the maintenance of the land,
(d)  toilets or rest rooms.
(6)  Despite subsection (1), a lease, licence or other estate may be granted, in respect of community land categorised as a natural area, to authorise the erection or use of any building or structure necessary to enable a filming project to be carried out, subject to the conditions prescribed by subsection (7) and the regulations.
(7)  It is a condition of any lease, licence or other estate referred to in subsection (6):
(a)  that any building or structure so erected must be temporary in nature, and
(b)  that as soon as practicable after the termination of the lease, licence or other estate:
(i)  any building or structure erected must be removed, and
(ii)  any damage to the land caused by the erection or use of a building or structure must be made good, and
(iii)  the land must be restored as nearly as possible to the condition that it was in at the time the lease, licence or other estate was granted,
at the expense of the person to whom the lease, licence or other estate was granted.

47C   Sublease of community land

(1)  In addition to any restrictions created by the lease, community land that is the subject of a lease cannot be sublet for a purpose other than:
(a)  the purpose for which, as notified under section 47 (2), the land was to be used under the lease, or
(b)  a purpose prescribed by the regulations.
(2)  A lease is void to the extent that its provisions are inconsistent with this section.

47D   Occupation of community land otherwise than by lease or licence

(1)  The exclusive occupation or exclusive use by any person of community land otherwise than in accordance with:
(a)  a lease, licence or estate to which section 47 or 47A applies, or
(b)  a sublease or other title directly or indirectly derived from the holder of such a lease, licence or estate,
is prohibited.
(2)  This section does not apply to:
(a)  the occupation or use of part of the site of a senior citizens’ centre or home or community care facility by a duly appointed manager of the centre, or
(b)  the occupation or use of community land by persons, and in circumstances, prescribed by the regulations.

47E   Development of community land

(1)  No power of a council under an environmental planning instrument to consent to the carrying out of development on community land may be delegated by the council, if:
(a)  the development involves the erection, rebuilding or replacement of a building (other than a building exempted by or under subsection (2) from the operation of this paragraph), or
(b)  the development involves extensions to an existing building that would occupy more than 10 per cent of its existing area, or
(c)  the development involves intensification, by more than 10 per cent, of the use of the land or any building on the land, or
(d)  the location of the development has not been specified in the plan of management applying to the land and the development is likely, in the opinion of the council, to be unduly intrusive to nearby residents.
(2)  The following buildings are exempt from the operation of subsection (1) (a):
(a)  toilet facilities,
(b)  small refreshment kiosks,
(c)  shelters for persons from the sun and weather,
(d)  picnic facilities,
(e)  structures (other than accommodations for spectators) required for the playing of games or sports,
(f)  playground structures,
(g)  work sheds or storage sheds,
(h)  buildings of a kind prescribed by the regulations.
(3)  An existing area referred to in subsection (1) (b) does not include the area of any awning, balcony, verandah or other thing that extends beyond the main structural outline of the building.
(4)  A delegation granted before the commencement of this section, to the extent that the delegation could not have been granted if this section had been in force at the time it was granted, is void.

47F   Dedication of community land as public road

(1)  Community land may not be dedicated as a public road under section 10 of the Roads Act 1993 unless:
(a)  the road is necessary to facilitate enjoyment of the area of community land on which the road is to be constructed or of any facility on that land, and
(b)  the council has considered means of access other than public road access to facilitate that enjoyment, and
(c)  there is a plan of management applying only to the land concerned and provision of the public road is expressly authorised in the plan of management.
(2)  Subsection (1) does not apply to:
(a)  a dedication of land for the purpose of widening an existing public road, or
(b)  a dedication of land for the purpose of other roadworks of a minor character, authorised by the plan of management applying to the land, in respect of existing roads, or
(c)  a dedication of land for the purpose of a road that is the subject of an order under Division 1 of Part 5 of the Roads Act 1993.

Division 3 Miscellaneous

47G   Public hearings

(1)  In this section, public hearing means any public hearing required to be arranged under this Part.
(2)  The person presiding at a public hearing must not be:
(a)  a councillor or employee of the council holding the public hearing, or
(b)  a person who has been a councillor or employee of that council at any time during the 5 years before the date of his or her appointment.
(3)  Not later than 4 days after it has received a report from the person presiding at the public hearing as to the result of the hearing, the council must make a copy of the report available for inspection by the public at a location within the area of the council.

48   Responsibility for certain public reserves

(1)  Except as provided by section 98A of the Crown Lands Act 1989, a council has the control of:
(a)  public reserves that are not under the control of or vested in any other body or persons and are not held by a person under lease from the Crown, and
(b)  public reserves that the Governor, by proclamation, places under the control of the council.
(2)  If any doubt arises as to whether any land comes within the operation of this section, or as to the boundaries of a public reserve, the Governor may, by proclamation, determine the matter.

49   Public reserves and drainage reserves dedicated on subdivision, transfer or conveyance

(1)  On the registration by the Registrar-General of a plan on which land is marked with the words “public reserve”, or of a transfer or conveyance to a council of land identified in the transfer or conveyance as being for use as a public reserve, the land is dedicated as a public reserve and vests in the council for an estate in fee simple.
(2)  If the land so dedicated is under the Real Property Act 1900, the Registrar-General, on registration of the plan or transfer, must create a folio of the Register under that Act for the estate of the council in the land and record in the folio, by reference to this section or otherwise, that the land is dedicated as a public reserve.
(3)  On the registration by the Registrar-General of a plan on which land is marked with the words “drainage reserve”, or of a transfer or conveyance to a council of land identified in the transfer or conveyance as being for use as a drainage reserve, the land vests in the council for an estate in fee simple and is held by the council for drainage purposes.
(4)  This section does not apply to a subdivision of land the plan of which was approved by the council before 15 June 1964.

50   Public garden and recreation space and drainage reserves provided for in subdivisions approved before 15.6.1964

(1)  This section applies to a subdivision of land the plan of which was approved by the council:
•  in the case of public garden and recreation space—before 15 June 1964
•  in the case of drainage reserves—after 24 November 1922 and before 15 June 1964.
Note. 15 June 1964 is the date of commencement of the Local Government and Conveyancing (Amendment) Act 1964. 24 November 1922 is the date of commencement of the Local Government (Validation and Amendment) Act 1922.
(2)  If a subdivision made provision for public garden and recreation space, the council may direct:
(a)  that the space be conveyed or transferred to the council, or
(b)  because the space is adjacent to land reserved or dedicated for the purpose of public recreation under the Crown Lands Act 1989 or to a public park that is not vested in the council, that the space be surrendered to the Crown.

Public garden and recreation space surrendered to the Crown is taken to be Crown land.

(3)  If a subdivision made provision for a drainage reserve, the council may direct that the reserve be conveyed or transferred to the council.
(4)  Instead of directing that land be conveyed or transferred to it, the council may publish a notice in the Gazette notifying that the land is vested in it.
(5)  On publication of the notice, the land vests in the council for an estate in fee simple and is taken:
•  in the case of public garden and recreation space—to be dedicated as a public reserve
•  in the case of drainage reserves—to be held by the council for drainage purposes.
(6)  When creating a folio of the Register under the Real Property Act 1900 for public garden and recreation space vested in the council under this section, the Registrar-General must record in the folio, by reference to this section or otherwise, that the land is dedicated as a public reserve.

51   Use of land held for drainage purposes

Land that is held by council for drainage purposes may be used for any other purpose that is not inconsistent with its use for drainage purposes, subject to the Environmental Planning and Assessment Act 1979 and any environmental planning instrument applying to the land.

52   Effect of sec 28 of the Environmental Planning and Assessment Act 1979

This Part is not a regulatory instrument for the purposes of section 28 of the Environmental Planning and Assessment Act 1979.
Note. Section 28 of the Environmental Planning and Assessment Act 1979 empowers an environmental planning instrument to provide that, to the extent necessary to enable development to be carried out in accordance with such an instrument or with a consent granted under that Act, a regulatory instrument (an Act, rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made) is not to apply to the development. Section 52 prevents section 28 of that Act from removing any of the controls imposed by this Part.

53   The council’s land register

(1)  A council is required to keep a register of all land vested in it or under its control.
(2)  The register must include the following:
•  the name (if any) by which the land is known
•  the address or location of the land
•  the reference to title of the land
•  the name of the owner of the land
•  whether or not the land is Crown land
•  the classification under this Part of the land
•  whether or not there is a plan of management for the land
•  the zoning (if any) of the land under an environmental planning instrument
•  particulars of any agreement (including any lease or licence) entered into by the council with respect to the land.

54   Certificate as to classification of land

(1)  A person may apply to the council for a certificate as to the classification of any public land.
(2)  The application must be in the approved form and be accompanied by the approved fee.
(3)  The council is to issue a certificate to the applicant stating the classification of the public land as at the date of the certificate.
(4)  The production of the certificate is taken for all purposes to be conclusive proof of the matter certified.

54A   Community land to be described in common terms

Any public notice given by a council with respect to a parcel of community land must describe the land by reference to its common description (such as its address, or the name by which it is generally known) whether or not the notice also describes the land by reference to a more formal legal description.

54B   Transfer of private trust land under Trustees of Schools of Arts Enabling Act 1902

(1)  In this section:

assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.

institution has the same meaning as in the Trustees of Schools of Arts Enabling Act 1902.

liabilities means any liabilities, debts or obligations (whether present or future and whether vested or contingent).

private trust land means any land reserved, dedicated or granted under any Act or instrument, or otherwise held, for the purposes of an institution, but does not include any such land if it is Crown land (or land otherwise vested in the Crown) or was Crown land (or land otherwise vested in the Crown) before being reserved, dedicated, granted or held for the purposes of an institution.

rights means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent).

trustees of private trust land means the majority of the trustees for the time being of that land.

(2)  A council and the trustees of private trust land may enter into an agreement for the land to be transferred to the council.
(3)  Any such agreement may contain provisions relating to the purposes for which the land is to be used after it is transferred.
(4)  The trustees may enter into any such agreement to transfer private trust land, and the agreement has effect, despite the terms and provisions of any Act, deed, reservation, dedication, grant or other instrument relating to the land.
(5)  Land that is transferred to a council under such an agreement is:
(a)  freed and discharged from any trusts, estates, interests, reservations dedications, conditions, restrictions and provisions affecting the land, and
(b)  to be used and managed by the council as community land.
(6)  Subsection (5) (a) is subject to any agreement entered into by the council under this section for the transfer of the land.
(7)  In preparing a draft plan of management in relation to any land transferred to it under this section, the council must, in addition to the other requirements under Division 2:
(a)  advise the Minister that it is preparing the draft plan, and
(b)  take into account the purposes for which the land was reserved, dedicated, granted or held as an institution, and
(c)  comply as far as practicable with the agreement entered into between the trustees of the private trust land concerned and the council, and
(d)  before giving public notice of the draft plan in accordance with section 38, consult with such persons or bodies as the council considers appropriate or as the Minister directs.
(8)  On the transfer of any private trust land to a council under this section, the following provisions have effect:
(a)  any assets, rights or liabilities in relation to the land, or in relation to the trustees of the land in their capacity as trustees, become the assets, rights or liabilities of the council,
(b)  all proceedings relating to those assets, rights and liabilities that were commenced by or against the trustees before the transfer are taken to be proceedings pending by or against the council,
(c)  any act, matter or thing done or omitted to be done in relation to those assets, rights and liabilities by, to or in respect of the trustees before the transfer is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted to be done by, to or in respect of the council.
 



How do councils manage public land?

Land owned or controlled by councils consists of

•  Public roads
•  Land to which the Crown Lands Act 1989 applies
•  Commons
•  Land subject to the Trustees of Schools of Arts Enabling Act 1902

•  All other land

(It is this other land that this Act defines to be public land.)

What regulates this land?

This land may be classified by a local environmental plan or council resolution as

•  PUBLIC ROADS—Roads Act 1993
•  CROWN LANDS—Crown Lands Act 1989
•  COMMONS—Commons Management Act 1989
•  MECHANICS’ INSTITUTES AND SCHOOLS OF ARTS—Trustees of Schools of Arts Enabling Act 1902

Community

Operational

MANAGEMENT PLAN REQUIRED?

YES

NO

IS USE RESTRICTED?

•  Use must not change until management plan adopted
•  Use and management must be in accordance with:
—  plan of management adopted by council
—  provisions of any relevant law

NO

IS DISPOSAL RESTRICTED?

•  Sale prohibited
•  No lease or licence over 21 years
•  Leases or licences over 5 years only with Minister’s consent if anyone objects to the lease or licence

NO

RECLASSIFICATION?

By local environmental plan or, in some circumstances, by council resolution

By council resolution

Part 2A Environmental upgrade agreements

54C   Definitions

In this Part:

environmental upgrade agreement—see section 54D.

environmental upgrade charge—see section 54G.

environmental upgrade works—see section 54E.

owners corporation for a strata scheme means the owners corporation for the strata scheme constituted under the Strata Schemes Management Act 1996.

strata building means a building containing a lot or part of a lot that is the subject of a strata scheme.

strata scheme means a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or a leasehold strata scheme under the Strata Schemes (Leasehold Development) Act 1986.

54D   Environmental upgrade agreement

(1)  A council may enter into an environmental upgrade agreement with a building owner and a finance provider in relation to a building.
(2)  An environmental upgrade agreement is an agreement under which:
(a)  a building owner agrees to carry out environmental upgrade works in respect of a building, and
(b)  a finance provider agrees to advance funds to the building owner to finance those environmental upgrade works, and
(c)  the council agrees to levy a charge on the relevant land for the purpose of repaying the advance to the finance provider.
(3)  A building owner is a person who is the owner of the land on which the building is erected.
(4)  For a building erected on land that is the subject of a strata scheme, the owners corporation for the strata scheme is taken to be the building owner.
(5)  The function of entering into an environmental upgrade agreement can be delegated by a council only to the general manager of the council. The delegation must specify the building or buildings to which the delegation relates.
(6)  Other persons may also be party to an environmental upgrade agreement.

54E   What are environmental upgrade works?

(1)  For the purposes of this Part, environmental upgrade works are works to improve the energy, water or environmental efficiency or sustainability of the building to which the agreement relates.
(2)  Environmental upgrade works include any works declared by the regulations to be environmental upgrade works.
(3)  Environmental upgrade works do not include any works declared by the regulations to be excluded works.
(4)  More than one environmental upgrade agreement may be entered into in relation to the same environmental upgrade works.

54F   Buildings that can be subject of environmental upgrade agreement

(1)  An environmental upgrade agreement must relate to an existing building (that is, a building that is complete and ready for lawful use and occupation at the time the agreement is entered into).
(2)  The building must be a non-residential building or a strata building that is the subject of a multi-residence scheme.
(3)  A non-residential building is a building used wholly or predominantly for commercial, industrial or other non-residential purposes.
(4)  A multi-residence scheme is a strata scheme comprising more than 20 lots (disregarding utility lots and lots used for parking).
(5)  The building must be located in the council’s area at the time that the agreement is entered into.

54G   Contents of environmental upgrade agreement

(1)  An environmental upgrade agreement must specify the following:
(a)  the environmental upgrade works to be carried out by or on behalf of the building owner under the agreement,
(b)  the amount of the advance or advances to be made by the finance provider under the agreement,
(c)  the arrangements for repayment of the advance or advances (the agreed repayment arrangements).
(2)  The agreed repayment arrangements may require the council to levy a charge (an environmental upgrade charge) for the purpose of discharging the building owner’s obligation to repay the advance or advances made by the finance provider under the agreement (including any interest or other charges payable under the agreement).
(3)  The agreed repayment arrangements must specify:
(a)  the amount of the environmental upgrade charge or charges to be levied by the council under the agreement (or a method for calculating the amount of the charge or charges), and
(b)  the date or dates on which the charge or charges are to be levied by the council, and
(c)  any adjustments to be made to the charge or charges in the event of late payment.
(4)  Money paid to a council in respect of an environmental upgrade charge is to be paid by the council to the finance provider in accordance with the environmental upgrade agreement.
(5)  An environmental upgrade agreement may permit the early repayment of any amount payable under the agreement.
(6)  An environmental upgrade agreement must be in writing.
(7)  An environmental upgrade agreement may include any other provisions agreed to by the parties.
(8)  An environmental upgrade agreement may be varied or terminated by further agreement between the council, the finance provider and the building owner for the time being.

54H   Council fees under agreement

(1)  An environmental upgrade agreement may authorise a council to deduct from any money paid in respect of an environmental upgrade charge, and retain, as a council fee:
(a)  a service fee, being a fee to cover any costs incurred by the council in entering into, or administering, the agreement, and
(b)  a late payment fee, being the amount, or a part of the amount, charged under the agreement for late payment of an environmental upgrade charge.
(2)  The environmental upgrade agreement must specify the amount of, or a method for calculating, any such council fee.
(3)  Part 10 of Chapter 15 does not apply in respect of a council fee charged under an environmental upgrade agreement.
(4)  However, section 610D applies to the service fee component of the council fee.

54I   Power to levy environmental upgrade charge

(1)  A council may levy an environmental upgrade charge in accordance with an environmental upgrade agreement.
(2)  An environmental upgrade charge may be levied only on the land on which the building to which the environmental upgrade agreement relates is erected or, in the case of a strata building, the land that is the subject of the relevant strata scheme.

54J   Application of other charge provisions to environmental upgrade charge

(1)  The relevant provisions apply in respect of an environmental upgrade charge in the same way as they apply in respect of a charge levied under Chapter 15.
(2)  The relevant provisions are the following provisions:
(a)  Chapter 15—sections 543, 544, 545, 546 (1), (3), (4) and (5), 550, 561, 569, 571, 573, 602 and 603,
(b)  Chapter 17—sections 695, 696 and 712 and Division 5 of Part 2.
(3)  The relevant provisions apply with the following modifications:
(a)  in section 545, a reference to a provision of Part 4 of Chapter 15 is taken to include a reference to a provision of this Part,
(b)  in section 550, a reference to a rate or charge levied under this Act is taken to include a reference to any amount charged under an environmental upgrade agreement for late payment of an environmental upgrade charge.
(4)  The regulations may further apply, disapply or modify the operation of any provision of this Act that relates to charges levied by a council in respect of an environmental upgrade charge.

54K   Special provisions relating to strata buildings

(1)  An environmental upgrade charge that is levied in respect of land that is the subject of a strata scheme is payable by the owners corporation for that strata scheme.
(2)  This section has effect despite section 561, as applied by this Part.
(3)  An owners corporation may determine whether environmental upgrade charges are to be paid from its sinking fund or its administrative fund.
(4)  An owners corporation for a strata scheme must, on the request of an owner of a lot that forms part of the strata scheme, provide to the owner a copy of any environmental upgrade agreement that relates to premises the subject of the strata scheme.
(5)  The regulations may disapply or modify the operation of any provision of the Strata Schemes Management Act 1996 in relation to environmental upgrade charges.

54L   Payment of environmental upgrade charge

(1)  An environmental upgrade charge is to be paid within 28 days after notice of the charge is served on the person liable to pay it.
(2)  When an environmental upgrade charge is paid to a council, the council may deduct from the payment, and retain, any amount that the council is authorised to deduct and retain as a council fee under the agreement.
(3)  Money paid to a council in respect of an environmental upgrade charge, other than any council fee retained by the council, may be held, pending its payment to the finance provider to which it is to be paid, in the council’s trust fund in trust for the finance provider.
(4)  A separate account is to be established in the council’s trust fund for money paid in respect of environmental upgrade charges.
(5)  Money paid to a council in respect of an environmental upgrade charge does not form part of the council’s general income under Part 2 of Chapter 15.

54M   Liability of council to recover charge

(1)  A council must use its best endeavours to recover an environmental upgrade charge in accordance with any requirements imposed on it by an environmental upgrade agreement.
(2)  However, a council is not liable for any failure by a person to pay an environmental upgrade charge or part of an environmental upgrade charge.
(3)  Accordingly, any such failure does not make the council liable to pay the outstanding amount to the finance provider.

54N   Recovery of contributions from lessees

(1)  A provision of a lease may require a lessee to pay to the lessor a contribution towards an environmental upgrade charge payable under an environmental upgrade agreement that relates to premises that are the subject of the lease.
(2)  The amount recoverable by the lessor as a contribution must not exceed a reasonable estimate of the cost savings to be made by the lessee, as a consequence of the environmental upgrade works provided for by the environmental upgrade agreement, during the period to which the contribution relates.
(3)  An environmental upgrade agreement may make provision for the recovery of contributions by a lessor (including by providing for the methodology by which the cost savings to be made by a lessee are to be estimated), in which case a contribution is recoverable only in accordance with that agreement.
(4)  The methodology may permit both savings made directly by the lessee and a proportion of savings made by all occupants of the relevant building to be counted towards the cost savings made by the lessee.
(5)  The parties to a lease may agree that subsections (2)–(4) do not apply in respect of the lease. In such a case, the lease may make alternative provision for the payment by the lessee of a contribution towards an environmental upgrade charge payable under an environmental upgrade agreement.
(6)  A lessor is not entitled to recover a contribution from a lessee towards the payment of an environmental upgrade charge unless the lessor provides to the lessee, on request by the lessee, a copy of the environmental upgrade agreement to which the contribution relates.
(7)  This section applies despite section 23 of the Retail Leases Act 1994 and section 40 of the Residential Tenancies Act 2010.
(8)  To avoid doubt, a contribution referred to in this section is an outgoing for the purposes of the Retail Leases Act 1994.
Note. See, in particular, section 27 of the Retail Leases Act 1994.
(9)  The regulations may make further provision for or with respect to the making of contributions towards environmental upgrade charges by lessees.
(10)  In particular, the regulations may disapply or modify the operation of any provision of the Retail Leases Act 1994 or the Residential Tenancies Act 2010 in relation to any such contribution.
(11)  In this section:

lease means an agreement under which a person grants to another person for value a right of occupation of premises.

54O   Agreements to be made on a voluntary basis

(1)  Entry into an environmental upgrade agreement is voluntary.
(2)  A council must not require a person to enter into an environmental upgrade agreement, whether as a condition of a development consent or a requirement of an order under the Environmental Planning and Assessment Act 1979 or by any other means.
(3)  This section does not prevent a planning agreement under the Environmental Planning and Assessment Act 1979 making provision for entry into an environmental upgrade agreement.

54P   Reporting requirements

(1)  A council must include particulars of any environmental upgrade agreement entered into by the council in its annual report, in accordance with any requirements imposed under section 406.
(2)  The Director-General is to consult with the Director-General of the Department of Environment, Climate Change and Water regarding the requirements that are to apply under that section in respect of environmental upgrade agreements.
(3)  A council is authorised to disclose information about any environmental upgrade agreement to which it is a party to the Director-General of the Department of Environment, Climate Change and Water.
(4)  A council is required to disclose any information about an environmental upgrade agreement to which it is a party that is requested by the Director-General of the Department of Environment, Climate Change and Water.

54Q   Guidelines

(1)  The Minister for Climate Change and the Environment may, with the concurrence of the Minister administering this Act, from time to time prepare, adopt or vary guidelines relating to environmental upgrade agreements and the functions of councils under this Part.
(2)  In particular, the guidelines may specify provisions that may be included in an environmental upgrade agreement with respect to:
(a)  the making of contributions by lessees towards environmental upgrade charges payable under an agreement (including by providing for the methodology by which the cost savings to be made by a lessee as a consequence of environmental upgrade works are to be estimated), and
(b)  progress or implementation reports to be made by a building owner under an environmental upgrade agreement.
(3)  The methodology may permit both savings made directly by the lessee and a proportion of savings made by all occupants of the relevant building to be counted towards the cost savings made by the lessee.
(4)  A council must take the guidelines into consideration before exercising any of its functions under this Part.
(5)  The regulations may adopt the guidelines, or any part of the guidelines, as mandatory requirements.
(6)  A council must comply with any mandatory requirements of the guidelines in exercising its functions under this Part.
(7)  Guidelines made under this section are to be published in the Gazette.

54R   Changes to council area

The functions of a council under an environmental upgrade agreement may be exercised by any council to which the assets, rights and liabilities of the council with respect to the agreement are transferred by proclamation referred to in section 213.

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)  subject to the regulations, a contract for the purchase of goods, materials or services specified by a person prescribed by the regulations made with another person so specified, during a period so specified and at a rate not exceeding the rate so specified
(b)  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
(c)  a contract entered into by a council with another council
(d)  a contract for the purchase or sale by a council of land
(e)  a contract for the leasing or licensing of land by the council, other than the leasing or licensing of community land for a term exceeding 5 years to a body that is not a non-profit organisation (see section 46A)
(f)  a contract for purchase or sale by a council at public auction
(g)  a contract for the purchase of goods, materials or services specified by the NSW Procurement 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
(h)  a contract for the employment of a person as an employee of the council
(i)  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
(j)  contract for which, because of provisions made by or under another Act, a council is exempt from the requirement to invite a tender
(k)  a contract made in a case of emergency
(l)  a contract to enter into a public-private partnership
(m)  if a council has entered into a public-private partnership—a contract entered into by the council for the purposes of carrying out a project under the public-private partnership (but only to the extent that the contract is part of the project that has been assessed or reviewed under Part 6 of Chapter 12)
(n)  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
(o)  a contract that is an environmental upgrade agreement (within the meaning of Part 2A)
(p)  a contract or arrangement between a council and the Electoral Commissioner for the Electoral Commissioner to administer the council’s elections, council polls and constitutional referendums.
(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.
(5)–(7)  (Repealed)

55A   Extended operation of section 55 to council-related entities

(1)  A council must comply with the requirements of section 55 (including any regulations made under that section) even though the contract to which that section applies involves something being done to or by an entity that the council has formed or participated in forming.
(2)  However, if the entity concerned is formed under a public-private partnership, subsection (1) has effect only to the extent that the contract is not part of a project that has been assessed or reviewed in accordance with Part 6 of Chapter 12.
(3)  In this section:

entity means any partnership, trust, corporation, joint venture, syndicate or other body (whether or not incorporated), but does not include any such entity that is of a class prescribed by the regulations as not being within this definition.

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 Primary Industries 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 Primary Industries 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 Primary Industries 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 Primary Industries 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.
(3)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

60   Council works for which the approval of the Minister for Primary Industries is required

A council must not, except in accordance with the approval of the Minister for Primary Industries, 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 Primary Industries concerning certain works

(1)  The Minister for Primary Industries 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 Primary Industries 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 Primary Industries 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 Primary Industries 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 Primary Industries—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 Primary Industries 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 Primary Industries (the appointing Minister) 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.
(1A)  If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.
(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 Part 8 of Chapter 13, be made by the Minister for Primary Industries with the concurrence of the Minister for Local Government.
(4)  An administrator is to be paid a salary determined by the appointing Minister, 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.
(5A)  If more than one administrator is appointed for a council, the appointing Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one administrator.
(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 proposes to charge an approved fee for carrying out the work as determined by the council in accordance with Division 2 of Part 10 of Chapter 15, or
(b)  if it proposes to charge an amount less than the approved fee, the decision to carry out the work is made, and the proposed fee to be charged is determined, 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 Part 4 of the Graffiti Control Act 2008.

Division 4

67A–67C(Repealed)

Chapter 7 What are the regulatory functions of councils?

Introduction. The major regulatory functions of councils are found in this Chapter. It lists the activities that are regulated and it sets out the means of their regulation.

A council, in relation to a range of activities within its area, exercises regulatory functions of 2 main kinds.

First—various activities can only be carried out if the council gives its approval (for example, the operation of a caravan park). Some of these approvals may also be granted as part of the development consent process under Part 4 of the Environmental Planning and Assessment Act 1979.

Second—a council can order a person to do, or to stop doing, something (for example, a council can order a person to keep fewer animals on specified premises).

Failure to obtain or to comply with an approval and failure to comply with an order are made offences under sections 626, 627 and 628.

A council is not given power to regulate activities by other means. For example, the Chapter does not confer power to require a person to hold a periodic licence.

In exercising its regulatory functions, the council must observe any relevant statutory criteria and any other criteria contained in a local policy it may have adopted after public consultation.

Part 1 Approvals

Division 1 What activities require approval?

68   What activities, generally, require the approval of the council?

(1)  A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.
(2)  This section does not apply to the carrying out of an activity specified in Part B of the following Table:
(a)  on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or
(b)  on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991.
(3)  This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4 or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under the Water Management Act 2000.
Note. A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence—see secs 626 and 627.

Table

Approvals

Part A   Structures or places of public entertainment

1   Install a manufactured home, moveable dwelling or associated structure on land

2, 3   (Repealed)

Part B   Water supply, sewerage and stormwater drainage work

1   Carry out water supply work

2   Draw water from a council water supply or a standpipe or sell water so drawn

3   Install, alter, disconnect or remove a meter connected to a service pipe

4   Carry out sewerage work

5   Carry out stormwater drainage work

6   Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer

Part C   Management of waste

1   For fee or reward, transport waste over or under a public place

2   Place waste in a public place

3   Place a waste storage container in a public place

4   Dispose of waste into a sewer of the council

5   Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility

6   Operate a system of sewage management (within the meaning of section 68A)

Part D   Community land

1   Engage in a trade or business

2   Direct or procure a theatrical, musical or other entertainment for the public

3   Construct a temporary enclosure for the purpose of entertainment

4   For fee or reward, play a musical instrument or sing

5   Set up, operate or use a loudspeaker or sound amplifying device

6   Deliver a public address or hold a religious service or public meeting

Part E   Public roads

1   Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway

2   Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road

3   (Repealed)

Part F   Other activities

1   Operate a public car park

2   Operate a caravan park or camping ground

3   Operate a manufactured home estate

4   Install a domestic oil or solid fuel heating appliance, other than a portable appliance

5   Install or operate amusement devices

6   (Repealed)

7   Use a standing vehicle or any article for the purpose of selling any article in a public place

8, 9   (Repealed)

10   Carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations

68A   Meaning of “operate a system of sewage management”

(1)  In this Part, operate a system of sewage management means hold or process, or re-use or discharge, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated).
(2)  Without limiting subsection (1), operate a system of sewage management includes the following:
(a)  use artificial wetlands, transpiration mounds, trenches, vegetation and other effluent polishing, dispersal or re-use arrangements in related land application areas,
(b)  hold or process sewage that is to be subsequently discharged into a public sewer.
(3)  However, operate a system of sewage management does not include any of the following:
(a)  any action relating to the discharge of sewage directly into a public sewer,
(b)  any action relating to sewage or by-products of sewage after their discharge into a public sewer.
(4)  In this section:

public sewer means a sewer operated by a council or county council, a water supply authority (within the meaning of the Water Management Act 2000), a State owned corporation specified in Schedule 1 or 5 to the State Owned Corporations Act 1989 (or a subsidiary of such a corporation) or any other public or local authority.

related land application area, in relation to a sewage management facility, means the area of land (if any) where it is intended that effluent and bio-solid waste from the facility will be re-used, applied or dispersed into the environment.

sewage includes any effluent of the kind referred to in paragraph (a) of the definition of waste in the Dictionary to this Act.

sewage management facility means:

(a)  a human waste storage facility, or
(b)  a waste treatment device intended to process sewage,
and includes a drain connected to such a facility or device.

68B   Approvals not personal property under Personal Property Securities Act 2009 (Cth)

An approval under this Part is declared not to be personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth.
Note. The Personal Property Securities Act 2009 of the Commonwealth does not apply in relation to a right, licence or authority granted by or under a law of a State that is declared by the law not to be personal property for the purposes of that Act.

Division 2 Crown activities

69   Crown exemption from approval to do things incidental to erection or demolition of building

Section 68 does not require the Crown or a person prescribed by the regulations to obtain the approval of a council to do anything that is incidental to the erection or demolition of a building.

70, 71   (Repealed)

72   Determination of applications by the Crown

(1)  A council, in respect of an application for approval made by the Crown or a person prescribed by the regulations, must not:
(a)  refuse to grant approval, except with the written consent of the Minister, or
(b)  impose a condition of an approval, except with the written consent of the Minister or the applicant.
(2)  If the council proposes to refuse to grant approval or to impose a condition of approval, it must immediately notify the applicant.
(3)  After the applicant is so notified, the council must submit to the Minister:
(a)  a copy of the application for approval, and
(b)  details of its proposed determination of the application, and
(c)  the reasons for the proposed determination, and
(d)  any relevant reports of another public authority.
(4)  The applicant may refer the application to the Minister whether or not the council complies with subsection (3).
(5)  After receiving the application from the council or the applicant, the Minister must notify the council and the applicant of:
(a)  the Minister’s consent to the refusal of approval, or
(b)  the Minister’s consent to the imposition of the council’s proposed conditions, or
(c)  the Minister’s intention not to agree with the council’s proposed refusal and the period within which the council may submit any conditions it wishes to impose as conditions of approval, or
(d)  the Minister’s refusal to agree with the council’s proposed conditions and any conditions to which the Minister’s consent may be assumed.
(6)  At the end of the period specified in subsection (5) (c), the Minister must notify the council and the applicant:
(a)  whether the Minister consents to the imposition of any of the conditions submitted by the council during that period and, if so, which conditions, or
(b)  of the conditions to which the Minister’s consent may be assumed.
(7)  The Minister must notify the council and the applicant of the reasons for a decision under subsection (5) or (6).
(8)  If the council does not determine the application within the period notified by the Minister for the purpose, the council is taken, on the expiration of that period, to have determined the application in accordance with the Minister’s consent.

73   Effect of council’s failure to determine Crown application

(1)  If the council does not determine an application to which section 72 applies within the relevant period specified in section 105, the council is taken, on the expiration of that period, to have refused the application.
(2)  If the application is taken to have been refused, the applicant may refer the application to the Minister for determination.
(3)  The Minister may determine an application so referred to the Minister.
(4)  The Minister’s determination has effect as if it were a determination of the council.

74   Prohibition on appeals concerning Crown applications

No review or appeal lies against a determination that the council is taken to have made under section 72 (8) or a decision or determination of the Minister under section 72 or 73.

Division 3 Making and determination of applications for approval—generally

75   Applications for approval

An application may be made to the council for an approval under this Part.

76   What may an application relate to?

The application may relate to:
•  the whole or part of an activity
•  the whole or any part of land on which the activity is proposed to be carried out
•  more than one activity.

77   Relevant regulations and local policies to be brought to notice of intending applicants

A council must take such steps as are reasonably practicable to bring the existence of any relevant regulations and any relevant local policy adopted under Part 3 to the notice of any person it knows to be an intending applicant for an approval.

78   Who may make an application?

(1)  An application may be made by the person seeking to carry out the activity for which the council’s approval is required.
(2)  If the application applies to particular land, the applicant must be the owner of the land or a person who has the consent of the owner.
(3)  If the Crown is the owner of the land, the application may be made by or with the consent of a Minister or a person authorised for the purpose by a Minister.

79   What is the form of application?

An application must be made in the approved form.

80   Is there an application fee?

(1)  An application must be accompanied by the approved fee.
(2)  A council may require payment of a further approved fee if the application is subsequently amended.

81   What matters must accompany an application?

An application must be accompanied by such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application.

82   Objections to application of regulations and local policies

(1)  An applicant for an approval may lodge with the council an objection:
(a)  that the regulations or a local policy adopted under Part 3 by the council relating to the activity for which approval is sought do not make appropriate provision with respect to that activity, or
(b)  that compliance with any provision of those regulations or such a policy is unreasonable or unnecessary in the particular circumstances of the case.
(2)  The applicant must specify the grounds of the objection.
(3)  If the objection relates to the regulations and the council is satisfied that the objection is well founded, it may, with the concurrence of the Director-General, in determining the application, direct that:
(a)  such provisions of any regulation relating to that activity as are specified in the direction:
(i)  are not to apply, or
(ii)  are to apply with such modifications as are specified in the direction,
in respect of the carrying out of that activity, or
(b)  such requirements as are specified in the direction are to apply to the carrying out of that activity,
or give directions under both paragraphs (a) and (b).
(3A)  If the objection relates to a local policy adopted under Part 3 by the council and the council is satisfied that the objection is well founded, it may, in determining the application, direct that:
(a)  such provisions of any local policy relating to that activity as are specified in the direction:
(i)  are not to apply, or
(ii)  are to apply with such modifications as are specified in the direction,
in respect of the carrying out of that activity, or
(b)  such requirements as are specified in the direction are to apply to the carrying out of that activity,
or give directions under both paragraphs (a) and (b) and the council must give the reasons for its direction or directions.
(3B)  An objection is well founded for the purposes of subsection (3A) only if the council is satisfied that no person or the public interest will be adversely affected by the variation and that any variation is consistent with the principles of ecologically sustainable development.
(4)  Any direction given by the council under subsection (3) or (3A), if the council’s approval to the application concerned is granted, has effect according to its tenor and, in the case of a direction referred to in subsection (3) (a) (ii) or (b) or subsection (3A) (a) (ii) or (b), is a condition of that approval.

83   Ownership and use of plans and specifications

One copy of any plans and specifications accompanying an application becomes the property of the council, but must not be used for any purpose other than giving effect to the provisions of this Act or any other Act.
Note. This section does not prevent the use of the plans and specifications for other purposes with the consent of the applicant and with any other necessary consent.

84   Acknowledgment of application

The council, on receiving an application, must give written acknowledgment to the applicant of its receipt, unless the council rejects the application under section 85.

85   Rejection of unclear or illegible applications

(1)  The council may reject an application within 7 days after its receipt if it is not clear as to the approval sought or if it is not easily legible.
(2)  An application so rejected is taken not to have been made and the application fee is to be refunded.

86   Request for more information

(1)  The council may, before it determines or is taken to have determined an application, request an applicant to provide it with more information that is reasonably necessary to enable the proper determination of the application.
(2)  The request must be made within 21 days after the council receives the application.
(3)  The information must be provided within a reasonable period specified by the council for the purpose, subject to subsection (4).
(4)  The period of time that elapses between the date of the council’s request and the date on which:
(a)  the information is provided, or
(b)  the applicant notifies the council that the information will not be provided, or
(c)  the period specified by the council ends,
whichever is the sooner, is not to be taken into consideration in calculating the period referred to in section 105.
(5)  A second or subsequent request for information may be made by the council, but such a request has no effect for the purposes of section 105.

87   Amendment of applications

(1)  An applicant, at any time before the application is determined, may make a minor amendment to the application and may amend any matter accompanying the application.
(2)  The making of a minor amendment does not require the application to be further notified to anyone.
(3)  For the purposes of section 105, the application is taken not to have been made until the amendment is made.

88   Withdrawal of applications

(1)  An applicant may withdraw an application at any time before its determination by the council by giving the council notice to that effect signed by the applicant.
(2)  An application withdrawn under this section is taken for the purposes of this Act never to have been made.
(3)  However, the question whether the application fee should be refunded is at the absolute discretion of the council.

89   Matters for consideration

(1)  In determining an application, the council:
(a)  must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and
(b)  must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and
(c)  must take into consideration the principles of ecologically sustainable development.
(2)  If no requirements are prescribed for the purposes of subsection (1) (a), and no criteria are adopted for the purposes of subsection (1) (b), the council in determining an application:
(a)  is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and
(b)  is to seek to give effect to the applicant’s objectives to the extent to which they are compatible with the public interest.
(3)  Without limiting subsection (2), in considering the public interest the matters the council is to consider include:
(a)  protection of the environment, and
(b)  protection of public health, safety and convenience, and
(c)  any items of cultural and heritage significance which might be affected.

90   Concurrence

(1)  The council must not grant an approval in relation to a matter for which this Act or a regulation requires the council to obtain the concurrence of some other person or authority unless the council has obtained the concurrence of the person or authority.
(2)  The person or authority may give the council notice that the concurrence may be assumed with such qualifications or conditions as are specified in the notice.
(3)  The person or authority may amend its notice by a further notice.
(4)  An approval given in accordance with a notice in force under this section is as valid as it would be if the council had obtained the concurrence of the person or authority concerned.
(5)  Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the person or authority has not, within that period, expressly refused concurrence.

91   Giving effect to concurrence

(1)  In granting an approval for which the concurrence of a person or authority has been given or may be assumed, the council must grant the approval subject to any conditions of the concurrence (whether the concurrence is given under section 90 (1) or (2)).
(2)  This section does not affect the council’s right to impose conditions under this Division not inconsistent with the conditions referred to in subsection (1) or to refuse approval.

92   Approval where an accreditation is in force

A council must not refuse to give its approval to an activity on the ground that any component, process or design relating to the activity is unsatisfactory if the component, process or design is accredited under Division 5 or under the regulations under the Environmental Planning and Assessment Act 1979.

93   Certification by qualified persons

(1)  A council or the Minister may be satisfied that:
(a)  a particular design, material, process or product complies with a criterion for approval, or
(b)  an activity has been carried out in compliance with an approval,
by relying on a certificate to that effect from an appropriately qualified person.
(2)  A certificate relating to a particular design, material, process or product must specify the particular criterion with which the design, material, process or product complies.
(3)  The council or the Minister must rely on such a certificate if it is from an appropriately qualified person and is furnished by a public authority.
Note. Sections 92 and 93 specify circumstances in which a council does not have to form an independent judgment about some aspect of an activity for which approval is being sought, but may rely on an accreditation or certification of a competent person.

A component, process or design relating to an activity may be accredited in accordance with the procedure set out in Division 5 of this Part.

Section 732 exempts a council, councillor or employee of a council from liability that would otherwise be incurred as a consequence of relying on an accreditation or certification.

94   Determination of application

(1)  The council may determine an application:
(a)  by granting approval to the application, either unconditionally or subject to conditions, or
(b)  by refusing approval.
(2)  This section does not affect section 72.

95   “Deferred commencement” approval

(1)  An approval may be granted subject to a condition that the approval is not to operate until the applicant satisfies the council as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
(2)  Such an approval must be clearly identified as a “deferred commencement” approval (whether by the use of that expression or by reference to this section or otherwise).
(3)  A “deferred commencement” approval must clearly distinguish conditions concerning matters as to which the council must be satisfied before the approval can operate from any other conditions.
(4)  A council may specify the period in which the applicant must produce evidence to the council sufficient to enable it to be satisfied as to those matters.
(5)  The applicant may produce evidence to the council sufficient to enable it to be satisfied as to those matters and, if the council has specified a period for the purpose, the evidence must be produced within that period.
(6)  If the applicant produces evidence in accordance with this section, the council must notify the applicant whether or not it is satisfied as to the relevant matters. If the council has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the council is, for the purposes only of section 177, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.

96   Staged approval

(1)  An approval may be granted:
(a)  for the activity or one or more of the activities for which the approval is sought, or
(b)  for such an activity, except for a specified part or aspect of the activity, or
(c)  for a specified part or aspect of such an activity.
(2)  Such an approval may be granted subject to a condition that the activity or the specified part or aspect of the activity, or any thing associated with the activity or the carrying out of the activity, must be the subject of:
(a)  a further approval, or
(b)  a consent, approval or permission under another Act,
or both.

97   Conditions concerning security

(1)  An approval may be granted subject to a condition that the applicant provides to the council security for the payment of the cost of either or both of the following:
(a)  making good any damage that may be caused to any council property as a consequence of doing or not doing any thing to which the approval relates,
(b)  completing any works (other than works prescribed by the regulations) that may be required in connection with the approval.
Note. Works the completion of which may be required in connection with an approval could include footpaths, kerbing and guttering, road works, trunk drainage and environmental controls.
(2)  The security is to be for such reasonable amount as is determined by the council and specified in the condition.
(3)  The security may be provided, at the applicant’s choice, by:
(a)  a deposit with the council, or
(b)  a guarantee satisfactory to the council.
(4)  Security provided by way of deposit may be paid out to meet any cost referred to in subsection (1).
(5)  A security deposit (or part) if repaid to the person who provided it is to be repaid with any interest accrued on the deposit (or part) as a consequence of its investment.

98   Other conditions

(1)  An approval may be granted subject to a condition that a specified aspect of the activity that is ancillary to the core purpose of the activity is to be carried out to the satisfaction of the council or a person specified by the council.
(2)  An approval is subject to any condition prescribed by the regulations as a condition of the approval.

99   Notice to applicant of determination of application

(1)  The council (or the Minister in the case of a determination by the Minister under section 72) must give notice of the determination of an application to the applicant as soon as practicable after the determination.
(2)  The date of the determination and the date from which the approval operates (if approval is granted) must be endorsed on the notice.
(3)  In the case of an approval granted subject to a condition that the approval is not to operate until the applicant satisfies the council as to any matter specified in the condition (a “deferred commencement” approval):
(a)  the date from which the approval operates must not be endorsed on the notice, and
(b)  if the applicant satisfies the council as to the matter, the council must, as soon as practicable after being satisfied, give notice to the applicant of the date from which the approval operates.
(4)  If the determination is made by the granting of approval subject to conditions or by refusing approval, the notice must notify the applicant:
(a)  of the council’s (or the Minister’s) reasons for the imposition of each condition or for refusing approval, and
(b)  of the provisions of this Act conferring a right of review of the determination (if relevant) and, in the case of a determination by the council, a right of appeal against the determination.

100   Review of determination

(1)  An applicant may request the council to review a determination of the applicant’s application.
(2)  The request for a review must be made within 28 days after the date of the determination.
(3)  An approved fee must, if required by the council, be paid in connection with a request for a review.
(4)  The council may review the determination and, as a consequence of its review, may confirm or change the determination.
(4A)  The decision whether or not to review the determination must not be made by the person who made the determination, unless that person was the council, but is to be made by a person who is qualified under subsection (5) to make the review.
(5)  If the council reviews the determination, the review must be made by:
(a)  if the determination was made by a delegate of the council—the council or another delegate of the council who is not subordinate to the delegate who made the determination, or
(b)  if the determination was made by the council—the council.
(6)  The council must give notice of the result of the review to the applicant as soon as practicable after the review.
(7)  The date of review must be endorsed on the notice.
(8)  If, as a consequence of a review, the council changes a determination, the changed determination replaces the earlier determination as from the date of the review.
(9)  A determination on a review may not be further reviewed under this section.

101   Date from which approval operates

(1)  An approval operates from the date specified for the purpose in the notice under section 99 or 100, subject to this section and section 102.
(2)  If an appeal is made (and not withdrawn) against an approval granted on the determination of an application, the approval does not operate until the date of the decision on that appeal, except where that decision is to refuse approval.
(3)  An approval is void and (except for the purposes of section 176) is taken never to have been granted if an appeal under section 176 is dismissed and approval is refused.
(4)  If a determination is made by refusing approval or if an application is taken by section 105 to have been so determined, and the decision on the appeal made under section 176 in respect of that determination has the effect of granting approval, the decision is taken to be an approval granted under this Part and the approval operates from the date of that decision.
(5)  An approval in respect of an application that is taken to have been approved under section 72 operates from the date on which it is taken to have been approved.

102   Insurance for residential building work

(1)  This section applies if the council approves (whether or not subject to conditions) of the doing of any residential building work (within the meaning of the Home Building Act 1989) other than work by an owner-builder.
(2)  The council must not forward or deliver to the applicant or any other person a copy of the plans and specifications submitted to it with the application unless:
(a)  it is satisfied that the builder or other person who is to do the residential building work has complied with the applicable requirements of Part 6 of the Home Building Act 1989, and
(b)  it has endorsed on the copy that it is so satisfied.
(3)  Even though the council has approved of the doing of any such work, the approval has no effect unless the council has so endorsed a copy of the plans and specifications and forwarded or delivered the copy to the applicant after that approval was given.
(4)  If the builder or person who is to do the residential building work is not known when the work is approved by the council, subsections (2) and (3) do not apply and subsection (5) applies instead.
(5)  The council must grant the approval subject to a condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989.

102A   Evidence of insurance-related matters

(1)  A statement purporting to be signed by an owner of land and declaring that:
(a)  the owner intends to do residential building work (within the meaning of the Home Building Act 1989) on the land, and
(b)  the reasonable market cost of the labour and materials involved in the work is not high enough for the owner to need an owner-builder permit to do the work,
is, for the purpose of the council’s making an endorsement, sufficient evidence of the matter referred to in subsection (1) (b).
(2)  A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 to the effect that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purpose of the council’s making an endorsement, sufficient evidence that the person has complied with the requirements of that Part.

103   When does an approval lapse?

(1)  An approval lapses:
(a)  5 years after the date from which it operates, except as provided by paragraph (b), or
(b)  in the case of an approval that is subject to a condition under section 96 (2), 2 years after the date on which the last approval, consent or permission required to be obtained in accordance with the condition operates.
(2)  A council, in granting an approval, may vary either or both of the periods referred to in subsection (1).
(3)  Such a variation may not be made so as to cause:
(a)  (Repealed)
(b)  an approval of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the approval.
(4)  This section does not prevent the extension or renewal of an approval under section 107.
(5)  In this section, vary means increase or reduce.

104   (Repealed)

105   Circumstances in which approval is taken to have been refused

(1)  If the council has not determined an application:
(a)  within the period of 40 days after the application is lodged with it, except as provided by paragraph (b), or
(b)  within the period of 80 days after the application is lodged with it in the case of an application for which the concurrence of a person or authority is required by or under this Act,
the council is, for the purposes only of section 176, taken to have determined the application by refusing approval on the date on which that period expires.
(2)  Nothing in subsection (1) prevents the council from determining an application after the expiration of the 40-day or 80-day period, whether on a review under section 100 or otherwise.
(3)  A determination under subsection (2) does not prejudice or affect the continuance or determination of an appeal made under section 176 in respect of a determination that is taken under subsection (1) to have been made, subject to subsection (4).
(4)  Where a determination under subsection (2) is made by granting approval, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 176 in respect of a determination that is taken by subsection (1) to have been made, withdrawn at any time before the appeal is determined.

106   Can approvals be amended?

(1)  A person to whom an approval is granted or any other person entitled to act on an approval may apply to the council to amend the approval.
(2)  Sections 78–86, 89, 97–99 and 105 apply to an application to amend an approval in the same way as they apply to an application for approval.
(3)  The council may amend an approval if:
(a)  it is satisfied that the approval as amended will be substantially the same as the original approval, and
(b)  it is satisfied that no prejudice will be caused to any person who made a submission concerning the application for the original approval, and
(c)  it has consulted with any person or authority whose concurrence to the original approval was required to be obtained and the person or authority has not, within 21 days after being consulted, objected to the amendment of the original approval.
(4)  (Repealed)
(5)  If the council amends an approval under this section, the amended approval replaces the original approval as from the date endorsed on the notice of determination of the application.
(6)  In the case of an approval granted by the Land and Environment Court, a reference in this section to the council is taken to be a reference to the Court, but no appeal lies from the Court’s determination of the application.

107   Can approvals be extended or renewed?

(1)  The council may determine to extend or renew an approval (but without changing the terms of the approval) if satisfied there is good cause for doing so.
(2)  The renewal of an approval operates as if it were an approval granted on the date of renewal.
(3)  The extension or renewal may be granted before the approval lapses or at any time within 3 months after the approval lapses.
(4)  The relevant provisions of:
(a)  sections 72, 73, 74, 78, 79, 80, 84, 85, 87, 88, 99 and 105, and
(b)  Division 1 of Part 5,
apply to an application made by the Crown or a person prescribed by the regulations referred to in section 72 (1) to extend or renew an approval in the same way as they apply to an application for an approval.
(5)  The relevant provisions of:
(a)  sections 78, 79, 80, 84, 85, 87, 88, 99 and 105, and
(b)  Division 1 of Part 5,
apply to an application made by any other person to extend or renew an approval in the same way as they apply to an application for an approval.

107A   Special provision—renewal of approvals relating to operation of sewage management systems

(1)  This section applies to an approval to operate a system of sewage management.
(2)  The council may by notice in writing (in any form determined by the council) invite any person to whom an approval to which this section applies has been granted to apply to renew the approval.
Note. For example, an invitation in writing to a person to renew an approval could be made in the form of an account or invoice.
(3)  A person to whom such an invitation is made is taken to have made an application under section 107 to renew the approval on the same terms as the original approval if the person pays any required application fee (being an approved fee under section 80).

108   Can approvals be revoked or modified?

(1)  A council may revoke or modify an approval in the circumstances set out in section 109.
(2)  A modification may take the form of the imposition of an additional condition or the variation or rescission of a condition to which the approval is subject.
(3)  Notice of a revocation of an approval or a modification of an approval that restricts or reduces the authority conferred by the approval may be served on any person who appears to the council to be acting under that authority or to be entitled to act under that authority.
(4)  A revocation or modification takes effect on the date of service of the notice of the revocation or modification or a later date specified in the notice.
(5)  At the same time as or as soon as practicable after the notice of the revocation or modification is served, the council is required to send:
(a)  a copy of the notice to each person who, in its opinion, is likely to be disadvantaged by the revocation or modification, and
(b)  a copy of the notice and the reasons for the revocation or modification to the Building Services Corporation, if the approval is for:
•  the transfer, alteration, repair or extension of water service pipes, or
•  the carrying out of sanitary plumbing work, sanitary drainage work or stormwater drainage work.
(6)  This section does not apply to an approval granted by the Land and Environment Court.

109   In what circumstances can an approval be revoked or modified?

An approval may be revoked or modified in any of the following circumstances:
(a)  if the approval was obtained by fraud, misrepresentation or concealment of facts,
(b)  for any cause arising after the granting of the approval which, had it arisen before the approval was granted, would have caused the council not to have granted the approval (or not to have granted it in the same terms),
(c)  for any failure to comply with a requirement made by or under this Act relating to the subject of the approval,
(d)  for any failure to comply with a condition of the approval.

110   Notice to be given of proposed revocation or modification

(1)  Before revoking or modifying an approval, the council must inform, by notice:
(a)  each person who, in its opinion, will be disadvantaged by the revocation or modification of the approval, and
(b)  each person and authority whose concurrence was required to the granting of the approval.
(2)  The notice must include the council’s reasons for revoking or modifying the approval.
(3)  The council must give those persons and authorities the opportunity of appearing before the council (or a person appointed by it) to show cause why the approval should not be revoked or modified.

111   Application of secs 108, 109 and 110 to the Crown

(1)  A council that proposes to revoke or modify an approval given to the Crown or a person prescribed by the regulations for the purposes of section 72 must also give notice of its proposal to the Minister.
(2)  A council must not revoke or modify such an approval except with the written consent of the Minister.

112   Entitlement to compensation

A person aggrieved by the revocation or modification of an approval in the circumstances set out in section 109 (b) may recover compensation from the council for expenditure which is rendered abortive by the revocation or modification and which was incurred pursuant to the approval during the period between the date on which the approval commenced to operate and the date specified in the relevant notice served under section 108 (4).

113   Record of approvals

(1)  A council must keep a record of approvals granted under this Part and of decisions on appeal from any determination made by it under this Part.
(2)  The record is to include the following:
•  the serial number that identifies the application for the approval
•  the date on which the application for the approval was made to the council
•  the amount of any fee payable in connection with the application
•  the date or dates on which any such fee, or any part of it, was paid to the council
•  the date from which the approval operates
•  the name and address of the person to whom the approval is granted
•  the name or address of any place in relation to which the approval is granted
•  a brief description of the subject-matter of the approval
•  any conditions to which the approval is subject
•  the duration of the approval
•  whether the approval has been revoked or modified
•  in the case of approvals concerning residential building work (within the meaning of the Building Services Corporation Act 1989), the names of licensees and owner-builders and the numbers endorsed on contractor licences and permits of which it is informed by owners of affected land.
(3)  The council may include any other information in the record.
(4)  The council must make such amendments to the record as are necessary as a consequence of any decision made by the Land and Environment Court on an appeal.
(5)  The information in the record is to be available for public inspection, without charge, at the office of the council during ordinary office hours.

Division 4 Approvals for filming

114   What is the purpose of this Division?

(1)  The purpose of this Division is to establish a streamlined procedure for obtaining any council approvals that are necessary in order to carry out filming.
(2)  In this Division:

approval means:

(a)  any approval, authorisation, consent, permit, determination or other decision that may be granted by a council (acting in any capacity) under this or any other Act or law (including the granting of a lease, licence or other estate in land, other than community land) prescribed by the regulations for the purposes of this paragraph, or
(b)  if no regulations are made for the purposes of paragraph (a), any approval, authorisation, consent, permit, determination or other decision that may be granted by a council (acting in any capacity) under this or any other Act or law (including the granting of a lease, licence or other estate in land, other than community land).

grant includes give, approve, authorise, consent, determine or otherwise decide.

115   Applications for approvals for filming

(1)  A person intending to carry out a filming project may lodge with the council a filming proposal in which the person makes an application for one or more approvals that are necessary in order to enable the filming project to be carried out and that may be granted by the council (acting in any capacity) under this or any other Act or law.
(2)  A filming proposal may contain applications relating to the whole or part of a filming project.
(3)  A filming proposal cannot be lodged for more than one filming project.

116   Form of, and security deposits, bonds, fees and charges for, filming proposal

(1)  A filming proposal must be made in the approved form.
(2)  A filming proposal is to be accompanied by the fee (if any) payable for each application made in the proposal, if at the time of lodging the proposal the amount of that fee can be determined.
(3)  Except as provided by subsection (4), the security deposit, bond, fee or charge (however expressed) for each application is to be determined in accordance with the Act, statutory instrument or law under which the application is made.
(4)  If under any Act, statutory instrument or law the council has a discretion to determine the security deposit, bond, fee or charge (however expressed) in respect of an application, it must determine it in accordance with the applicable filming protocol and the amount determined must not exceed the maximum amount (if any) prescribed by the regulations for such an application.
(5)  If the person who lodged the filming proposal does not pay the fee payable for making an application within 14 days after the day on which the proposal is lodged, the council may refuse to consider the application until the fee payable with respect to the application is paid.
Note. See section 119F (2).

117   Acknowledgment of application and notification of fees

(1)  The council must within 7 days after the day on which a filming proposal is lodged with it:
(a)  give written acknowledgment of its receipt to the person who lodged the proposal, unless the council rejects the application under subsection (2), and
(b)  if a fee payable for any application made in the proposal has not been determined or paid, advise the person what that fee is.
(2)  The council may reject an application made in a filming proposal within 7 days after the day on which the filming proposal is lodged if the application is not clear as to the approval sought or if it is not easily legible.
(3)  An application so rejected is taken not to have been made and any application fee is to be refunded.

118   What matters must accompany a filming proposal?

A filming proposal must be accompanied by:
(a)  such matters as are required to accompany each application made in the proposal (whether required by or under this Act or any another Act, statutory instrument or law), and
(b)  such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the applications made in the proposal.

119   Filming protocol to be brought to attention of intending applicants

A council must take such steps as are reasonably practicable to bring the filming protocol, the existence of any relevant regulations and any relevant local policy adopted under Part 3 to the notice of any person who lodges or whom the council knows to be intending to lodge a filming proposal.

119A   Amendment and withdrawal of applications

(1)  A person who lodges a filming proposal may amend or withdraw an application made in the proposal in accordance with the Act, statutory instrument or law under which the application is made.
(2)  However, the making of a minor amendment to an application does not stop the running of a period of time specified in section 116 or 117.

119B   Application for approvals under Division 3

(1)  An application for an approval under Division 3 made in a filming proposal is to be dealt with under Division 3, except as provided by this section.
(2)  In determining the application, the council must comply with the applicable filming protocol in addition to taking into consideration the matters specified in section 89.
(2A)  In the event of an inconsistency between any criteria in a local policy required to be taken into consideration under section 89 and the applicable filming protocol, the applicable filming protocol prevails.
(3)  For the purposes of Division 3:
(a)  a council is taken to have received an application made in a filming proposal on the day on which the approved fee for the application was paid, and
(b)  a reference to an applicant, in relation to an application, is taken to be a reference to the person who lodged the filming proposal making the application concerned.
(4)  An application for an approval under this Part made in a filming proposal that complies with sections 115, 116 and 118 is not subject to section 79, 80 (1), 81 or 85.
(5)  A council that complies with sections 117 and 119 is not subject to section 77 or 84.
(6)  If the council refuses an application, it must notify the applicant of the matters specified in section 99 within 3 business days after the refusal.

119C   Application for approval other than under Division 3

(1)  An application for an approval other than under Division 3 made in a filming proposal is to be dealt with as an application made under the relevant provision of the relevant Act, statutory instrument or law, except as provided by this Division.
(2)  In determining the application, the council must comply with the applicable filming protocol in addition to any other requirements relating to determination of the application
(2A)  In the event of an inconsistency between any requirements relating to determination of the application and the applicable filming protocol, the applicable filming protocol prevails.
(3)  In relation to such an application, a reference to:
(a)  a fee for making the application (however expressed) is taken to be a reference to the fee paid in relation to that application accompanying the filming proposal, and
(b)  an applicant (however expressed) is taken to be a reference to the person who lodged the filming proposal with the council.
(4)  An application referred to in subsection (1) made in a filming proposal that complies with sections 115, 116 and 118 is taken to have complied with any requirements (however expressed) under the relevant Act or statutory instrument as to:
(a)  the form of the application, and
(b)  any fee for making the application, and
(c)  any matters required to accompany the application.
(5)  A council that complies with sections 116 and 117 is taken to have complied with any requirements (however expressed) under the relevant Act or statutory instrument as to acknowledgement of an application and determination of a fee for making the application.
(6)  An application referred to in subsection (1) is to be determined under the relevant provisions of the relevant Act or statutory instrument.
(7)  A determination of such an application is (subject to subsection (8)) to be notified in accordance with the relevant provisions of the relevant Act or statutory instrument (if any).
(8)  If the council refuses an application, it must:
(a)  inform the applicant in writing of its determination as soon as practicable after it is made, and
(b)  give the applicant reasons in writing for its determination within 3 business days after it is made, and
(c)  if the relevant Act, statutory instrument or law confers a right of review of the determination or right of appeal against the determination—notify the applicant of that right within 3 business days after it is made.

119CA   Presumption in favour of grant of approval

(1)  The council must grant an application referred to in section 119B or 119C made to it in accordance with the Act, statutory instrument or law under which it is made unless the council:
(a)  is satisfied that there are exceptional circumstances that warrant refusal of the application, or
(b)  is required by the Act under which the application is made to refuse the application.
(2)  Before refusing an application, the council must consider whether any concerns it has could be addressed by imposing conditions on the approval.

119D   Applicable filming protocol

(1)  For the purposes of this Division, the applicable filming protocol in relation to a council is:
(a)  the filming protocol, issued by the Director-General under this section, as in force from time to time, or
(b)  if the council has adopted a filming protocol and it has been approved by order in writing by the Director-General—that filming protocol.
(2)  The Director-General may, by order in writing, issue a filming protocol that includes any of the following:
(a)  information about procedures for obtaining approvals for carrying out filming,
(b)  guidelines or heads of consideration to be taken into account by councils in determining applications for approvals made in a filming proposal,
(c)  codes of conduct for the carrying out of filming,
(d)  provisions for determining fees for an application, and fees and charges for services related to an application, made in a filming proposal,
(e)  any other matter related to filming.
(3)  The Director-General must not approve a filming protocol adopted by a council unless the Director-General is satisfied that it is comparable to the filming protocol issued by the Director-General.
(4)  Before issuing a filming protocol, or approving a filming protocol adopted by a council, the Director-General must consult with such persons or bodies as he or she considers appropriate for such period as he or she considers appropriate.
(5)  Except as provided by sections 119B (2A) and 119C (2A), a filming protocol has no effect to the extent that it is inconsistent with an express provision of an Act or statutory instrument.

119E   Advertising or notification of applications made in filming proposal

(1)  An application made in a filming proposal must comply with all the advertising or notification requirements for that application under any relevant Act or statutory instrument.
(2)  However, two or more applications made in a filming proposal that are required or permitted to be advertised or notified by particular means may be advertised or notified by those means in one advertisement or notice if that advertisement or notice satisfies all the advertising or notification requirements for the applications concerned under the relevant Act or statutory instrument.

119F   Application of this Division

(1)  The provisions of this Division prevail to the extent of any inconsistency between the provisions of this Division and the provisions of any other Act, statutory instrument or law.
(2)  Except as provided by section 116 (3) and (4), nothing in section 116 affects the operation of section 97 or any provision of any other Act, statutory instrument or law that allows a council to require payment of a security deposit, bond, fee or charge (however expressed) in relation to an application made in a filming proposal.
(3)  Nothing in this Division affects any right of appeal under this or any other Act, statutory instrument or law.

Division 5 Accreditation of components, processes and designs

120   Application for accreditation

(1)  Any person may apply to the Director-General for the accreditation of any component, process or design relating to an activity which is subject to the approval under this Part of a council.
(2)  An application must be made in the approved form and be accompanied by the approved fee.
(3)  Before deciding whether or not to grant an accreditation, the Director-General may require the applicant to submit such information relating to the component, process or design (including information describing any relevant method of installation, attachment or construction) as the Director-General considers appropriate.
(4)  The Director-General may refuse to consider an application but in that event must refund the fee paid.

121   Determination of application

(1)  The Director-General has a discretion to accredit a component, process or design.
(2)  An accreditation may be granted subject to such conditions and qualifications, and for such period, as the Director-General thinks fit.
(3)  In determining an application for accreditation, the Director-General may have regard to sources of information published or otherwise made available by such persons or bodies as the Director-General considers appropriate.
(4)  In granting an accreditation, the Director-General must state the provisions of any regulation which the accredited component, process or design satisfies or with which the accredited component, process or design complies.

122   Revocation of accreditation

(1)  The Director-General may at any time revoke an accreditation if the Director-General finds that:
(a)  the accreditation has been obtained by fraud, misrepresentation or concealment of facts, or
(b)  the standard of the component, process or design which is the subject of the accreditation:
(i)  is unsatisfactory, or
(ii)  differs from or fails to comply with the standard of that component, process or design as at the time the accreditation was granted, or
(c)  an accreditation granted in any place outside New South Wales in respect of the component, process or design has been revoked or cancelled.
(2)  If the Director-General determines to revoke an accreditation, the Director-General must notify the applicant for accreditation of the Director-General’s determination.

123   Councils to be informed of accreditation and revocation

The Director-General must notify each council of an accreditation under this Division and of the revocation of any such accreditation as soon as practicable after the accreditation is granted or the accreditation is revoked.

123A   Application for extension or renewal of accreditation

(1)  A person who has been granted an accreditation under the Local Government Act 1919 or under this Division (section 123B (b) excepted) may apply to the Director-General for an extension or renewal of the accreditation.
(2)  This Division applies:
(a)  to an application under this section in the same way as it applies to an application for accreditation, and
(b)  to the extension or renewal of an accreditation in the same way as it applies to an accreditation.

123B   Acceptance of accreditation by others

The regulations:
(a)  may provide for the submission with an application under this Division of an accreditation granted, or an assessment or appraisal made or given by a person or body other than the Director-General, and
(b)  may provide that an accreditation granted by a person or body other than the Director-General is to be taken to be an accreditation granted and notified under, and subject to the revocation provisions of, this Division.
 

The main procedures concerning approvals

Part 2 Orders

Division 1 Giving of orders

124   Orders

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
Note. This section does not affect the power of a council to give an order (or a notice or direction) under the authority of another Act.

For example, some of those Acts and the orders (or notices or directions) that may be given include:

Food Act 2003

(by delegation) improvement notice or prohibition order

Protection of the Environment Operations Act 1997

environment protection notices

Public Health Act 2010

direction concerning maintenance or use of certain regulated systems

Roads Act 1993

order preventing the passage of traffic along a road or tollway

 

order for the removal of an obstruction or encroachment on a road

Swimming Pools Act 1992

order requiring owner of swimming pool to bring it into compliance with the Act

A person who fails to comply with an order is guilty of an offence—see sec 628.

Table

Orders



Orders requiring or prohibiting the doing of things to or on premises

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

1

To demolish or remove a building

(a)–(c)  (Repealed)
(d)  Building is erected in a catchment district and causes or is likely to cause pollution of the water supply

Owner of building

2

(Repealed)  

3

To repair or make structural alterations to a building

(a), (b)  (Repealed)
(c)  Building is erected in a catchment district and causes or is likely to cause pollution of the water supply

Owner of building

4

(Repealed)  

5

To take such action as is necessary to bring into compliance with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919:

(a)  a camping ground, caravan park or manufactured home estate

(b)  a moveable dwelling or manufactured home

(c)  (Repealed)
(d)  a place of shared accommodation

(e)  a hairdressers shop or beauty salon

(f)  a mortuary

(g)  a water meter on premises

(h)  a water supply or sewerage system on premises, but only in relation to any work that is not plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011

Failure to comply with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919

Owner, occupier or manager or, in the case of a water meter, water supply or sewerage system in respect of which a defect occurs in work due to faulty workmanship of, or defective material supplied by, a licensed contractor (being the holder of a licence in force under the Home Building Act 1989 authorising the holder to contract to do the work) within 12 months after the work is carried out or the material is supplied, the licensed contractor

6

(Repealed)  

7

To fence land

Public health, safety or convenience renders it necessary or expedient to do so and there is no adequate fence between the land and a public place

Owner or occupier of land

8

To identify premises with such numbers or other identification in such manner as is specified in the order

Premises have a frontage to or entrance from a road and there are no markings that can readily be seen and understood from the road

Owner or occupier of land

9

To fence, empty, fill in or cover up a hole or waterhole in the manner specified in the order

Hole or waterhole is or may become dangerous to life

Owner or occupier of land

10

To remove or stack articles or matter, to cover articles or matter, to erect fences or screens or to plant trees

Land is in the immediate vicinity of a public place and is used for the storage of articles or matter so as to create or be likely to create unsightly conditions

Owner or occupier of land

11

To do or to refrain from doing such things as are specified in the order to prevent environmental damage, to repair environmental damage or to prevent further environmental damage

Work carried out on land has caused or is likely to cause environmental damage, being damage to the physical environment that is caused by:

(a)  drainage, or

(b)  drainage works, or

(c)  obstructing a natural watercourse other than by a work constructed or used under a water management work approval granted under the Water Management Act 2000,

not being environmental damage arising from premises, works or equipment the subject of a licence issued under the Protection of the Environment Operations Act 1997 or the subject of a notice or direction issued by a regulatory authority under that Act

Owner or occupier of land

12

To do such things as are necessary to control the flow of surface water across land

Other land, or a building on the land or other land, is being damaged or is likely to be damaged

Owner or occupier of land

13, 14

(Repealed)  



Orders requiring that premises be used or not used in specified ways

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

15

Not to conduct, or to cease conducting, an activity on premises (whether or not the activity is approved under this Act)

The activity constitutes or is likely to constitute:

(a)  a life threatening hazard, or

(b)  a threat to public health or public safety

and is not regulated or controlled under any other Act by a public authority

Any person apparently engaged in promoting, conducting or carrying out the activity

15A

(Repealed)  

16

To cease the use of premises or to evacuate premises

A person to whom order No 15 is given has failed to comply with the order

The person to whom order No 15 is given

17

To leave premises or not to enter premises

A person to whom order No 15 is given has failed to comply with the order

Any person

18

Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order

Birds or animals kept on premises are:

(a)  in the case of any premises (whether or not in a catchment district)—of an inappropriate kind or number or are kept inappropriately, or

(b)  in the case of premises in a catchment district—birds or animals (being birds or animals that are suffering from a disease which is communicable to man or to other birds or animals) or pigs

Occupier of premises

19

To use or not to use a tennis court as specified

Actual or likely annoyance or threat to the safety of neighbours or users of a public place

Occupier of land



Orders requiring the preservation of healthy conditions

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

20

To do such things as are specified in the order to put premises, vehicles or articles used for the manufacture, preparation, storage, sale, transportation or other handling or use of or in relation to food into a clean or sanitary condition

The premises, vehicle or article is not in a clean or sanitary condition

Owner or occupier of premises or owner or operator of vehicle or article

21

To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition

The land or premises are not in a safe or healthy condition

Owner or occupier of land or premises

22

To store, treat, process, collect, remove, dispose of or destroy waste which is on land or premises in the manner specified in the order, provided that it is not inconsistent with regulations made under the Protection of the Environment Operations Act 1997

Waste is present or generated on the land or premises and is not being dealt with satisfactorily, and is not regulated or controlled by, or subject to, a licence or notice granted or issued under the Protection of the Environment Operations Act 1997

Owner or occupier of land or premises, owner of or person responsible for the waste or for any receptacle or container in which the waste is contained

22A

To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises

The waste is causing or is likely to cause a threat to public health or the health of any individual

Owner or occupier of the premises

23

To connect premises to the council’s water supply by a specified date

The premises are situated within 225 metres of a water pipe of the council

Owner or occupier of land

24

To connect premises with a sewerage system by a specified date

The premises are situated within 75 metres of a sewer of the council

Owner or occupier of premises

25

Not to use or permit the use of a human waste storage facility on premises after a specified date

It is necessary for the purpose of protecting public health

Owner or occupier of premises



Orders requiring the protection or repair of public places

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

26

(Repealed)  

27

To remove an object or matter from a public place or prevent any object or matter being deposited there

The object or matter:

(a)  is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, or

(b)  is causing or is likely to cause danger, annoyance or inconvenience to the public

Person causing obstruction or encroachment or owner or occupier of land from which the object or matter emanates or is likely to emanate

28

To take whatever steps are necessary to prevent damage to a public place and to repair damage to a public place

There is actual or likely damage:

 

(a)  by excavation or removal of material from or adjacent to the public place, or

Person responsible for the excavation or the removal of the material

(b)  by a work or structure, or

Owner or person entitled to the benefit of the work or structure

(c)  by surface drainage or irrigation

Owner or occupier of land from which surface drainage flows or from which spray emanates

29

To alter or repair a work or structure on, over or under a public place

It is in the public interest to do so

Owner of the work or structure



Orders requiring compliance with approval

Column 1

Column 2

Column 3

To do what?

In what circumstances?

To whom?

30

To comply with an approval

The approval is not being complied with

Person entitled to act on the approval or person acting otherwise than in compliance with the approval

125   Abatement of public nuisances

A council may abate a public nuisance or order a person responsible for a public nuisance to abate it.
Note. Abatement means the summary removal or remedying of a nuisance (the physical removal or suppression of a nuisance) by an injured party without having recourse to legal proceedings.

Nuisance consists of interference with the enjoyment of public or private rights in a variety of ways. A nuisance is “public” if it materially affects the reasonable comfort and convenience of a sufficient class of people to constitute the public or a section of the public. For example, any wrongful or negligent act or omission in a public road that interferes with the full, safe and convenient use by the public of their right of passage is a public nuisance.

126   Giving orders to public authorities

(1)  An order under this Division may not be given in respect of the following land without the prior written consent of the Minister:
•  vacant Crown land
•  a reserve within the meaning of Part 5 of the Crown Lands Act 1989
•  a common.
(2)  The Minister must not give consent in respect of vacant Crown lands or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989.

127   Making of regulations for the purposes of this Division

The regulations may prescribe acts or circumstances that are taken to be included in or excluded from any of the acts or circumstances specified in Column 1 or 2 of the Table to section 124.

128   Catchment districts

(1)  The Governor may proclaim a district to be a catchment district for the purposes of this Act.
(2)  An owner of a building who complies with order No 1 in the Table to section 124 in the circumstances specified in paragraph (d) for that order, or order No 3 in that Table in the circumstances specified in paragraph (c) for that order, under section 124 is entitled to compensation from the council for the expenses incurred by the owner in complying with the order.

128A   Orders about removal or keeping of waste

(1)  An order in terms of order No 22A in the Table to section 124 ceases to have effect, unless earlier revoked under section 153, at the end of the period of 5 years after it is given.
(2)  The protection of public health is the paramount consideration in giving any such order.

Division 2 Procedures to be observed before giving orders

129   Circumstances in which compliance with this Division is required

(1)  Before giving an order, a council must comply with this Division.
(2)  This section does not apply to:
(a)  an order in terms of order No 15 in the Table to section 124, or
(a1)  an order in terms of order No 22A in the Table to section 124 (except to the extent that this section would otherwise require compliance with section 131A), or
(b)  an order given, and expressed to be given, in an emergency.

130   Effect of compliance with this Division

A council that complies with this Division is taken to have observed the rules of natural justice (the rules of procedural fairness).

131   Criteria to be considered before order is given

If the council has adopted criteria in a local policy under Part 3 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.

131A   Orders that make or are likely to make residents homeless

(1)  If an order will or is likely to have the effect of making a resident homeless, the council must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.
(2)  If the person is not able to arrange satisfactory alternative accommodation in the locality, the council must provide the person with:
(a)  information as to the availability of satisfactory alternative accommodation in the locality, and
(b)  any other assistance that the council considers appropriate.

132   Notice to be given of proposed order

(1)  Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.
(2)  The council’s notice must also indicate that the person to whom the order is proposed to be given may make representations to the council as to why the order should not be given or as to the terms of or period for compliance with the order.
(3)  The notice may provide that the representations are to be made to the council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case.

133   Making of representations

(1)  A person may, in accordance with a notice under section 132, make representations concerning the proposed order.
(2)  For the purpose of making the representations, the person may be represented by an Australian legal practitioner or agent.

134   Hearing and consideration of representations

The council or a specified committee, or the specified councillor or employee of the council, is required to hear and to consider any representations made under section 133.

135   Procedure after hearing and consideration of representations

(1)  After hearing and considering any representations made concerning the proposed order, the council, the committee, or the councillor or employee concerned, may determine:
(a)  to give an order in accordance with the proposed order, or
(b)  to give an order in accordance with modifications made to the proposed order, or
(c)  not to give an order.
(2)  If the determination is to give an order in accordance with modifications made to the proposed order, the council is not required to give notice under this Division of the proposed order as so modified.

Division 3 Orders generally

136   Reasons for orders to be given

(1)  A council must give the person to whom an order is directed the reasons for the order.
(2)  The reasons may be given in the order or in a separate instrument.
(3)  The reasons must be given when the order is given, except in a case of urgency. In a case of urgency, the reasons may be given the next working day.

137   Period for compliance with order

(1)  An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.
(2)  An order may require immediate compliance with its terms in circumstances which the council believes constitute a serious risk to health or safety or an emergency.

138   Notice of right to appeal against order

(1)  A council must, in giving a person notice of an order:
(a)  state that the person may appeal to the Land and Environment Court against the order or a specified part of the order, and
(b)  specify the period within which an appeal may be made.
(2)  This section does not apply in relation to order No 22A in the Table to section 124.

138A   Approval or consent not required to comply with order

A person who carries out work in compliance with a requirement of an order does not have to make an application under Division 1, 2 or 3 of Part 1 for approval of the work or an application under Part 4 of the Environmental Planning and Assessment Act 1979 for consent to carry out the work.

139   Order may specify standards and work that will satisfy those standards

(1)  Instead of specifying the things the person to whom the order is given must do or refrain from doing, an order:
(a)  may specify the standard that the premises are required to meet, and
(b)  may indicate the nature of the work that, if carried out, would satisfy that standard.
(2)  Such an order may require the owner or occupier to prepare and submit to the council, within the period (not exceeding 3 months) specified in the order, particulars of the work the owner or occupier considers necessary to make provision for such matters as may be so specified.

140   Compliance with order referred to in sec 139 (2)

(1)  A person complies with a requirement of an order referred to in section 139 (2) by submitting to the council such matters as the person would be required to submit under section 81 if applying to the council for approval of the work.
(2)  (Repealed)

141   Council’s response to submission of particulars of work by owner

(1)  The council must, within 28 days after particulars of work are submitted to it in accordance with section 139 (2):
(a)  accept the particulars without modification or with such modifications as it thinks fit, or
(b)  reject the particulars.
(2)  If a council accepts the particulars of work without modification, the council must forthwith order the owner to carry out that work.
(3)  If a council accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work in accordance with section 139 (2), the council must:
(a)  prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that it considers necessary to make provision for the matters specified in the order referred to in section 139 given to the owner, and
(b)  order the owner to carry out that work.
(4)  An order under this section is not invalid merely because of the failure of the council to accept or reject any particulars of work or prepare particulars of any work, as the case may be, within the period it is required to do so by this section.
(4A)  An order under this section forms part of the order under section 124 to which it relates.
(5)  A council may recover from an owner as a debt its expenses of preparing particulars of work under this section.

142   Orders affecting heritage items

(1)  This section applies to an item of the environmental heritage:
(a)  which is listed in the Register of the National Estate kept in pursuance of the Australian Heritage Commission Act 1975 of the Commonwealth, or
(b)  to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies or to which an order under section 136 of that Act applies, or
(c)  which is identified as such an item in an environmental planning instrument.
(2)  A council must not give an order under this Part in respect of an item of the environmental heritage to which this section applies until after it has considered the impact of the order on the heritage significance of the item.
(3)  A council must not give an order under this Part in respect of an item of the environmental heritage to which subsection (1) (a) or (b) applies until after it has given notice of the order to the Heritage Council and has considered any submissions duly made to it by the Heritage Council.
(3A)  The Heritage Council may, by instrument in writing served on a council, exempt the council from the requirements of subsection (3).
(3B)  An exemption under subsection (3A) may be given unconditionally or subject to such conditions as the Heritage Council determines, and may be varied or revoked by a subsequent instrument in writing made by the Heritage Council and served on the council.
(4)  The Heritage Council may make a submission:
(a)  within 28 days after it is given notice by the council, or
(b)  if, within 28 days after it is given notice by the council, the Heritage Council requests that a joint inspection of the item be made, within 28 days after the joint inspection is made.
(5)  If the Heritage Council notifies a council that it wishes to be consulted in connection with an order under section 141, the council must include a statement to that effect in any order under section 139.
(6)  This section does not apply to order No 15, 16, 17 or 22A in the Table to section 124 if given by a council in an emergency.

143   Combined orders

(1)  A council may include two or more orders in the same instrument.
(2)  However, an order in terms of order No 22A in the Table to section 124 cannot be included with another order in the same instrument.

144   Giving and taking effect of orders

An order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

145   Orders may be given to two or more persons jointly

If appropriate in the circumstances of the case, an order may direct two or more people to do the thing specified in the order jointly.

146   Notice in respect of land or building owned or occupied by more than one person

(1)  If land, including land on which a building is erected, is owned or occupied by more than one person:
(a)  an order in respect of the land or building is not invalid merely because it was not given to all of those owners or occupiers, and
(b)  any of those owners or occupiers may comply with such an order without affecting the liability of the other owners or occupiers to pay for or contribute towards the cost of complying with the order.
(2)  Nothing in this Division affects the right of an owner or occupier to recover from any other person all or any of the expenses incurred by the owner or occupier in complying with such an order.

147   Compliance with orders by occupiers or managers

If an occupier or manager complies with an order, the occupier or manager may (unless the occupier or manager has otherwise agreed) deduct the cost of so complying (together with interest at the rate currently prescribed by the Supreme Court rules in respect of unpaid judgment debts) from any rent payable to the owner or may recover the cost (and that interest) from the owner as a debt in any court of competent jurisdiction.

148   Occupier of land may be required to permit owner to carry out work

(1)  The council may order the occupier of any land to permit the owner of the land to carry out such work on the land as is specified in the order (being work that is, in the council’s opinion, necessary to enable the requirements of this Act or the regulations, or of any order under Division 1, to be complied with).
(2)  An occupier of land on whom such an order is served must, within 2 days after the order is served, permit the owner to carry out the work specified in the order.
(3)  The owner of the land is not guilty of an offence arising from his or her failure to comply with the requirements of this Act or the regulations, or of any order under Division 1, if, while an order under this section is in force, the occupier of the land refuses to permit the owner to carry out the work specified in the order.
(4)  Subsection (3) applies only if the owner of the land satisfies the Court that the owner has, in good faith, tried to comply with the requirements concerned.

149–151   (Repealed)

152   Modification of orders

A council may, at any time, modify an order it has given to a person (including a modification of the period specified for compliance with the order) if the person agrees to that modification.

153   Revocation of orders

(1)  An order given by the council may be revoked by the council at any time.
(2)  An order given by the Minister may be revoked by the Minister at any time.
(3)  (Repealed)

154   The Minister may exercise any function concerning an order that a council may exercise

(1)  The Minister may exercise any function under this Part that the council may exercise.
(2)  This Part (except Division 2) applies to the Minister in the same way as it applies to a council for the purpose of exercising any such function.
(3)  The Minister must not give an order to protect public health until after the Minister has consulted the Minister administering the Public Health Act 2010.
(3A)  The Minister must not give an order that relates to an activity that is the subject of a development consent granted under the Environmental Planning and Assessment Act 1979 by the Minister administering that Act until after the Minister has consulted that other Minister. However, the Minister is not required to consult, but must notify, the other Minister in the case of:
(a)  an order in terms of order No 15 in the Table to section 124, or
(b)  an order given, and expressed to be given, in an emergency.
(4)  If the Minister’s functions under this section are delegated, a person to whom an order by the Minister’s delegate is given may apply to the Minister for a review of the order within 28 days after service of the order.
(5)  The Minister’s decision on the review is final.
(6)  Part 5 (Appeals) does not apply to an order given under this section.
(7)  The Minister must forward a copy of an order given under this section to the relevant council.

155   Effect of inconsistency between council’s order and Minister’s order

An order given by a council under Division 1, to the extent to which it is inconsistent with an order given by the Minister under section 154, is void.

156   Minister may revoke or modify a council’s order

(1)  The Minister may revoke or modify an order given by a council.
(1A)  The Minister administering the Environmental Planning and Assessment Act 1979 may revoke or modify an order given by a council that relates to an activity that is the subject of a development consent granted under that Act. A reference in this section to the Minister includes a reference to the Minister administering that Act.
(2)  Notice of the revocation or modification must be given to the council and the person to whom the order was given.
(3)  The revocation or modification takes effect from the date specified in the Minister’s notice. The date may be the date on which the order was given by the council or a later date.
(4)  The Minister may prohibit a council from re-making an order that is revoked or modified under this section, totally or within such period or except in accordance with such terms and conditions (if any) as the Minister may specify.
(5)  Notice of a prohibition may be given in the same notice as notice of the revocation or modification of an order or in a separate notice.

157   Limitation on Minister’s orders

The Minister must not give an order under this Part that is inconsistent with, or has the effect of revoking or modifying, an order given by the council unless the Minister is of the opinion that:
(a)  it is necessary because of an emergency, or
(b)  it is necessary because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c)  the order relates to a matter of State or regional significance, or
(d)  the order relates to a matter in which the intervention of the Minister is necessary in the public interest.
 

Orders

Part 3 Adoption of local policies concerning approvals and orders

158   Preparation of draft local policy for approvals

(1)  A council may prepare a draft local approvals policy.
(2)  A draft local approvals policy is to consist of three parts.
(3)  Part 1 is to specify the circumstances (if any) in which (if the policy were to be adopted) a person would be exempt from the necessity to obtain a particular approval of the council.
(4)  Part 2 is to specify the criteria (if any) which (if the policy were to be adopted) the council must take into consideration in determining whether to give or refuse an approval of a particular kind.
(5)  Part 3 is to specify other matters relating to approvals.

159   Preparation of draft local policy for orders

(1)  A council may prepare a draft local orders policy.
(2)  A draft local orders policy is to specify the criteria which (if the policy were to be adopted) the council must take into consideration in determining whether or not to give an order under section 124.
(3)  This section does not apply in relation to order No 22A in the Table to section 124.

160   Public notice and exhibition of draft local policy

(1)  The council must give public notice of a draft local policy after it is prepared.
(2)  The period of public exhibition must be not less than 28 days.
(3)  The public notice must also specify a period of not less than 42 days after the date on which the draft local policy is placed on public exhibition during which submissions may be made to the council.
(4)  The council must, in accordance with its notice, publicly exhibit the draft local policy together with any other matter which it considers appropriate or necessary to better enable the draft local policy and its implications to be understood.

161   Adoption of draft local policy

(1)  After considering all submissions received by it concerning the draft local policy, the council may decide:
(a)  to amend its draft local policy, or
(b)  to adopt it without amendment, or
(c)  not to adopt it, except where the adoption of criteria is mandatory.
(2)  If the council decides to amend its draft local policy, it may publicly exhibit the amended draft local policy in accordance with this Part or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft local policy without public exhibition.

162   Director-General’s consent required to exemption from necessity for approval

A council has no power to adopt that part of a draft local approvals policy that specifies circumstances in which (if the policy were to be adopted) a person would be exempt from the necessity to obtain a particular approval of the council, unless the council has received the Director-General’s consent to the adoption of that part.

163   Effect of inconsistency between council’s local policy and this Act or the regulations

A local policy adopted under this Part by a council, to the extent to which it is inconsistent with this Act or the regulations, is void.

164   Local policy not to be more onerous than this Act or the regulations

(1)  If a criterion is prescribed by this Act or the regulations in relation to:
(a)  a specified aspect of an activity that may be carried out only with the prior approval of the council, or
(b)  a specified aspect of anything for which an order may be given under Part 2,
a local policy adopted under this Part by a council, to the extent to which its provisions impose a more onerous criterion in relation to the specified aspect, is void.
(2)  However, for the purposes of this section, the imposition of a criterion in a local policy in relation to a specified aspect, does not, in the absence of the prescription by this Act or the regulations of a criterion in relation to that aspect, constitute a more onerous criterion.

165   Amendment and revocation of local policy

(1)  A council may amend a local policy adopted under this Part by means only of a local policy so adopted.
(2)  An amending local policy may deal with the whole or part of the local policy amended.
(3)  A council may at any time revoke a local policy adopted under this Part.
(4)  A local policy (other than a local policy adopted since the last general election) is automatically revoked at the expiration of 12 months after the declaration of the poll for that election.

166   Public notice of adoption of local policy

The council must give public notice, in a form and manner prescribed by the regulations (or, if no form and manner are so prescribed, in a form and manner determined by the council), of the adoption or revocation (other than by section 165 (4)) of a local policy.

167   Public availability of local policy

(1)  A local policy adopted under this Part by a council must be available for public inspection free of charge at the office of the council during ordinary office hours.
(2)  Copies of the local policy must also be available free of charge or, if the council determines, on payment of the approved fee.

Part 4

168–175 (Repealed)

Part 5 Appeals

Division 1 Approvals and orders

176   Appeal by an applicant concerning an approval

(1)  An applicant who is dissatisfied with the determination of a council with respect to the applicant’s application for an approval may appeal to the Land and Environment Court.
(2)  The appeal must be made within 12 months after:
(a)  the date endorsed on the notice under section 99 or 100 in respect of the application, or
(b)  the date on which the application is taken to have been determined under section 105, or
(c)  the date endorsed on the notice of extension or renewal of the approval if the approval has been extended or renewed under section 107 or the date endorsed on the refusal to extend or renew the approval if extension or renewal of the approval is refused under section 107,
as the case requires.

177   Appeal by an applicant as to whether a “deferred commencement” approval operates

(1)  An applicant who is dissatisfied with a decision that a council is not satisfied as to a matter, being a matter as to which it must be satisfied before a “deferred commencement” approval under section 95 can operate, may appeal to the Land and Environment Court.
(2)  The appeal must be made within 12 months after the council notifies the applicant of its decision.

178   Appeal against the revocation or modification of an approval

(1)  If an approval is revoked or modified under section 108, the applicant for the approval may appeal to the Land and Environment Court.
(2)  The appeal must be made within 3 months after the date on which the revocation or modification takes effect.
(3)  The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.

179   Awarding of compensation concerning approvals

(1)  The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to an applicant for an approval for any expense incurred by the person as a consequence of:
(a)  a council’s refusal to grant the approval, or
(b)  a council’s delay in granting the approval,
if the Court considers that the council would not have acted in the way it did but for the fact that it was unduly influenced by vexatious or unmeritorious submissions made by members of the public or that the council has acted vexatiously.
(2)  An application for compensation may be made on the hearing of an appeal or by proceedings brought for the purpose of claiming compensation.
(3)  A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on an appeal concerning the application for approval or more than 3 months after the date of the council’s determination of the application if an appeal is not made against the determination.
(4)  Compensation under this section is to be awarded against the council.
Note. The Land and Environment Court has other powers to award compensation under section 677.

180   Appeals concerning orders

(1)  A person on whom an order is served may appeal against the order to the Land and Environment Court.
(2)  (Repealed)
(3)  The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.
(4)  On hearing an appeal, the Court may:
(a)  revoke the order, or
(b)  modify the order, or
(c)  substitute for the order any other order that the council could have made, or
(d)  find that the order is sufficiently complied with, or
(e)  make such order with respect to compliance with the order as the Court thinks fit, or
(f)  make any other order with respect to the order as the Court thinks fit.
(5)  This section does not apply in relation to order No 22A in the Table to section 124.

181   Awarding of compensation concerning orders

(1)  The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable.
(2)  A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the order if an appeal is not made against the order.
(3)  Compensation under this section is to be awarded against the council.

182   Appeals concerning particulars of work submitted to councils

(1)  A person may appeal to the Land and Environment Court against the failure of the council:
(a)  to accept or reject, under section 141 (1), particulars of work submitted to it in accordance with section 139 (2), or
(b)  to prepare, under section 141 (3) (a), particulars of the work that it considers necessary to make provision for the matters specified in an order given to an owner under section 139.
(2)  The appeal must be made within 28 days after the period limited under section 141 (1) or (3) (a) for compliance by the council.
(3)  On hearing an appeal, the Court may:
(a)  make any order that the council could have made, or
(b)  order the council to perform its functions under section 141 (1) or (3) (a) within such time as is specified in the order.
(4)  This section does not apply in relation to order No 22A in the Table to section 124.

183   Effect of appeal on order

If an appeal is duly made to the Land and Environment Court against an order, the appeal does not effect a stay of the order.

184   Court’s powers not limited by this Division

This Division does not limit a power of the Land and Environment Court under the Land and Environment Court Act 1979.

Division 2

185 (Repealed)

Chapter 8 What ancillary functions does a council have?

Introduction. This Chapter confers on councils certain functions which it is necessary or desirable for them to have in order to carry out their other functions. These functions are “ancillary” in the sense that they are auxiliary to, they give support to, and they aid the carrying out of, the other functions of a council, particularly its service and regulatory functions.

Councils are given power to acquire land by compulsory process.

The Chapter also confers on councils powers to enter land and buildings and to carry out inspections.

A council may also have similar powers for different purposes under other Acts. For example, under the Roads Act 1993, a council has power to compulsorily acquire land for road purposes and may enter land for the purposes of that Act.

Part 1 Acquisition of land

186   For what purposes may a council acquire land?

(1)  A council may acquire land (including an interest in land) for the purpose of exercising any of its functions.
(2)  Without limiting subsection (1), a council may acquire:
(a)  land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or
(b)  land which forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired under this Part.
(3)  However, if the land acquired is, before its acquisition, community land vested in a council, the acquisition does not discharge the land from any trusts, estates, interests, dedications, conditions, restrictions or covenants that affected the land or any part of the land immediately before that acquisition.

187   How does a council acquire land?

(1)  Land that a council is authorised to acquire under this Part may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
(2)  A council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.

188   Restriction on compulsory acquisition of land for re-sale

(1)  A council may not acquire land under this Part by compulsory process without the approval of the owner of the land if it is being acquired for the purpose of re-sale.
(2)  However, the owner’s approval is not required if:
(a)  the land forms part of, or adjoins or lies in the vicinity of, other land acquired at the same time under this Part for a purpose other than the purpose of re-sale, or
(b)  the owner of the land cannot be identified after diligent inquiry has been made and at least 6 months has elapsed since that inquiry was made.
(3)  For the purposes of subsection (2) (b), diligent inquiry has the meaning given by the regulations, and includes the giving of notice of the proposed acquisition to the New South Wales Aboriginal Land Council and to the relevant Local Aboriginal Land Council.

189   No restriction as to area

Land may be acquired by a council under this Part even if it lies wholly or partly outside the council’s area.

190   Special provisions relating to land containing minerals

Division 4 of Part 8 of the Public Works Act 1912 applies to a council and land acquired by a council in the same way as that Division applies to a Constructing Authority and land acquired by a Constructing Authority.

Part 2 Entry on to land and other powers

191   Power of entry

(1)  For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.
(2)  Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.

191A   Power of entry—construction and maintenance of water supply, sewerage and stormwater drainage works

(1)  Without limiting section 191, a council employee (or other person) authorised by a council may enter any premises to carry out water supply work, sewerage work or stormwater drainage work on or under the premises (being work that the council is authorised by this or any other Act to carry out).
(2)  Subsection (1) does not apply to premises that comprise a National Parks and Wildlife reserve.

192   Inspections and investigations

For the purpose of enabling a council to exercise its functions, a person authorised to enter premises under this Part may:
(a)  inspect the premises and any food, vehicle, article, matter or thing on the premises, and
(b)  for the purpose of an inspection:
(i)  open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and
(ii)  require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act or the regulations, and
(c)  take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and
(d)  require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and
(e)  examine and test any meter, and
(f)  measure a supply of water, and
(g)  take samples or photographs in connection with any inspection.

193   Notice of entry

(1)  Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises.
(2)  The notice must specify the day on which the person intends to enter the premises and must be given before that day.
(3)  This section does not require notice to be given:
(a)  if entry to the premises is made with the consent of the owner or occupier of the premises, or
(b)  if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c)  if entry is required urgently and the case is one in which the general manager has authorised in writing (either generally or in the particular case) entry without notice, or
(d)  if entry is made solely for the purpose of reading a meter or other device for measuring:
(i)  the supply of water to the premises from the council’s water mains, or
(ii)  the discharge of sewage or other waste matter from the premises into the council’s sewer mains.

194   Use of force

(1)  Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Part, but only if authorised by the council in accordance with this section.
(2)  The authority of the council:
(a)  must be in writing, and
(b)  must be given in respect of the particular entry concerned, and
(c)  must specify the circumstances which are required to exist before force may be used.

195   Notification of use of force or urgent entry

(1)  A person authorised to enter premises under this Part who:
(a)  uses force for the purpose of gaining entry to the premises, or
(b)  enters the premises in an emergency without giving written notice to the owner or occupier,
must promptly advise the council.
(2)  The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.

196   Care to be taken

(1)  In the exercise of a function under this Part, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.
(2)  As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.
(3)  If, in the exercise of a function under this Part, any pit, trench, hole or bore is made, the council must, if the owner or occupier of the premises so requires:
(a)  fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and
(b)  without unnecessary delay, fill it up or level it or sufficiently slope it down.

197   Recovery of cost of entry and inspection

If a person authorised by a council enters any premises under this Part for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.

198   Compensation

A council must pay compensation for any damage caused by any person authorised by the council under this Part to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this or any other Act.
Note. Section 730 provides for the resolution of claims for compensation under this section in cases of dispute between the person claiming the compensation and the council.

199   Authority to enter premises

(1)  A power conferred by this Part to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.
(2)  The authority must be a written authority which is issued by the council and which:
(a)  states that it is issued under this Act, and
(b)  gives the name of the person to whom it is issued, and
(c)  describes the nature of the powers conferred and the source of the powers, and
(d)  states the date (if any) on which it expires, and
(e)  describes the kind of premises to which the power extends, and
(f)  bears the signature of the general manager.
(3)  This section does not apply to a power conferred by a search warrant.

200   In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except:
(a)  with the permission of the occupier of that part of the premises, or
(b)  if entry is necessary for the purpose of inspecting work being carried out under an approval, or
(c)  under the authority conferred by a search warrant.

201   Search warrants

(1)  An authorised person may apply to an authorised officer if the authorised person has reasonable grounds for believing that the provisions of this Act or the regulations or the terms of an approval or order under this Act have been or are being contravened in or on any premises.
(2)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant:
(a)  to enter the premises, and
(b)  to search the premises for evidence of a contravention of this Act or the regulations or the terms of an approval or order.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer:
(a)  may accompany an authorised person executing a search warrant issued under this section, and
(b)  may take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.
(5)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

202, 203   (Repealed)

Chapter 9 How are councils established?

Introduction. This Chapter contains provisions dealing separately with the constitution of land as a local government area and the constitution of a council to manage that area. It enables the making of changes to those areas and to councils. It provides for the dissolution of councils and the appointment of administrators.

Each council is a statutory corporation. The councillors are the governing body of the corporation and they have the responsibility of directing and controlling the affairs of the council in accordance with this Act.

The Chapter includes a statement of the role of the mayor and of a councillor.

Provision is made for the payment of fees to the mayor and other councillors. Payment is to be made in accordance with determinations of the Local Government Remuneration Tribunal which is established by this Chapter. Provision is also made for the payment of expenses and the provision of facilities to the mayor and other councillors.

The Chapter also constitutes the Local Government Boundaries Commission and provides for its functions.

Part 1 Areas

Division 1 How are areas constituted and dissolved?

204   Constitution of areas

(1)  The Governor may, by proclamation, constitute any part of New South Wales as an area.
(2)  The area is to have the boundaries determined by the Governor by proclamation.
(3)  An area must be a single area of contiguous land.

205   Land taken to be included in an area

(1)  The land and water between high-water mark and low-water mark on the foreshores of an area is taken to be in the area.
(2)  The land and water enclosed by:
(a)  a straight line drawn between the low-water marks of consecutive headlands to any body of water on the foreshores of an area, and
(b)  those foreshores,
is taken to be in the area.
(3)  Land on the boundary of an area is taken to be in the area if:
(a)  it is reclaimed from tidal waters, or
(b)  it is on the foreshores of the area and beyond low-water mark,
and it is privately owned or has a structure erected on it.
(4)  This section is subject to any proclamation made under this Division.

206   Constitution of cities

The Governor may, by proclamation, constitute an area as a city.

207   Names of areas

The Governor may, by proclamation, name or rename an area.

208   Effect of changing name

When an area is constituted as a city or an area or ward is renamed, a reference in an Act or instrument to the old name of the area, the council concerned or the ward is taken to include a reference to the new name of the area, council or ward.

209   (Repealed)

210   Division of areas into wards

(1)  The council may divide its area into divisions, called “wards”.
(2)  The council may abolish all wards.
(3)  The council may alter ward boundaries.
(4)  The council may name or rename a ward.
(5)  A council must not divide an area into wards or abolish all wards unless it has obtained approval to do so at a constitutional referendum.
(6)  A by-election held after an alteration of ward boundaries and before the next ordinary election is to be held as if the boundaries had not been altered.
(7)  The division of a council’s area into wards, or a change to the boundaries of a ward, must not result in a variation of more than 10 per cent between the number of electors in each ward in the area.

210A   Consultation, public notice and exhibition of proposals regarding ward boundaries

(1)  Before dividing a council’s area into wards or altering a council’s ward boundaries, the council must:
(a)  consult the Electoral Commissioner and the Australian Statistician to ensure that, as far as practicable, the proposed boundaries of its wards correspond to the boundaries of appropriate districts (within the meaning of the Parliamentary Electorates and Elections Act 1912) and census districts, and to ensure that the proposed boundaries comply with section 210 (7), and
(b)  prepare and publicly exhibit a plan detailing the proposed division or alteration (the ward boundary plan).
(2)  The council must give public notice of the following:
(a)  the place at which the ward boundary plan may be inspected,
(b)  the period for which the plan will be exhibited (being a period of not less than 28 days),
(c)  the period during which submissions regarding the ward boundary plan may be made to the council (being a period of not less than 42 days after the date on which the ward boundary plan is placed on public exhibition).
(3)  The council must, in accordance with its notice, publicly exhibit the ward boundary plan together with any other matter that it considers appropriate or necessary to better enable the plan and its implications to be understood.
(4)  Any person may make a submission to the council regarding the ward boundary plan within the period referred to in subsection (2) (c).
(5)  The council must consider submissions made in accordance with this section.

210B   Approval to abolish all wards in council’s area

(1)  A council may resolve to make an application to the Minister to approve the abolition of all wards of the council’s area.
(2)  The council must give not less than 42 days’ public notice of its proposed resolution.
(3)  After passing the resolution, the council must forward to the Minister a copy of the resolution, a summary of any submissions received by it and its comments concerning those submissions.
(4)  The Minister may approve the application or may decline to approve it.
(5)  If the Minister approves the application, all the wards in the council’s area are abolished with effect on and from the day appointed for the next ordinary election of councillors after the application is approved.
(6)  Section 16 does not apply to a resolution of a council to make an application to the Minister under this section.
(7)  An application may be made under this section only within the period of 5 months from the commencement of this section.
(8)  Nothing in this section prevents a council from making more than one application under this section or from taking action under section 210 to abolish all wards of the council’s area.

211   Ward boundaries

(1)  The council of an area divided into wards must keep the ward boundaries under review.
(2)  If:
(a)  during a council’s term of office, the council becomes aware that the number of electors in one ward in its area differs by more than 10 per cent from the number of electors in any other ward in its area, and
(b)  that difference remains at the end of the first year of the following term of office of the council,
the council must, as soon as practicable, alter the ward boundaries in a manner that will result in each ward containing a number of electors that does not differ by more than 10 per cent from the number of electors in each other ward in the area.
(3)  Nothing in subsection (2) prevents a council that has become aware of the discrepancy referred to in subsection (2) (a) from altering its ward boundaries before the end of the first year of the following term of office of the council.

212   Dissolution of areas

(1)  The Governor may, by proclamation, dissolve the whole or part of an area.
(2)  The Minister may not recommend the making of a proclamation to dissolve the whole or part of an area until after a public inquiry has been held and the Minister has considered the report made as a consequence of the inquiry.

213   Facilitating provisions of proclamations

(1)  A proclamation of the Governor for the purposes of this Division may include such provisions as are necessary or convenient for giving effect to the proclamation, including provisions for or with respect to:
•  the transfer or apportionment of assets, rights and liabilities
•  the transfer of staff
•  the application of regulations
•  the alteration of ward boundaries
•  the holding of elections
•  the delivery or retention of records
•  the termination, cessation, dissolution or abolition of anything existing before the proclamation takes effect
•  the preservation or continuance of anything existing before the proclamation takes effect
•  the making of appointments
•  the inclusion or exclusion, as a constituent council of any related county council, of the council of any area constituted or dissolved by the proclamation.
Note. If a proclamation for the purposes of this Division transfers staff members (other than senior staff) from the employment of one council to another council, the provisions of Part 6 of Chapter 11 apply in relation to the transferred staff members.
(2)  Such a proclamation may:
(a)  apply generally or be limited in its application by reference to specified exceptions or factors, or
(b)  apply differently according to different factors of a specified kind, or
(c)  authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
(3)  In this section, related county council, in relation to an area constituted or dissolved by a proclamation of the Governor for the purposes of this Division, means a county council that has an area of operations that includes the whole or any part of the area so constituted or dissolved.

Division 2 What must be done before areas can be constituted?

Note. This Division sets out the things that must be done before areas can be constituted.

Land may only be constituted as an area if the public has been notified of the proposal to do so and the councils and electors concerned have been given an opportunity to make representations concerning the proposal.

It also provides for the Boundaries Commission to consider proposals to constitute areas.

214   Exercise of functions under sec 204

A function under section 204 may be exercised only after a proposal for the exercise of the function is dealt with under this Division.

215   Who may initiate a proposal?

(1)  A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors.
(2)  An appropriate minimum number of electors is:
(a)  if a proposal applies to the whole of an area or the proposal is that part of an area be constituted as a new area—250 of the enrolled electors for the existing area or 10 per cent of them, whichever is the greater, or
(b)  if a proposal applies only to part of an area—250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.

216   Public notice to be given of a proposal

The Minister must give at least 28 days’ public notice of a proposal that the Minister decides to proceed with.

217   Making of representations

(1)  Within the period of public notice, representations concerning the proposal may be made to the Minister by a council or elector affected by the proposal.
(2)  The Minister must consider all representations made.

218   Referral of proposal for examination and report

(1)  If the Minister decides to continue with the proposal, the Minister must refer it for examination and report to the Boundaries Commission.
(2)  The Minister may recommend to the Governor that the proposal be implemented:
(a)  with such modifications as arise out of the Boundaries Commission’s report, and
(b)  with such other modifications as the Minister determines,
but may not do so if of the opinion that the modifications constitute a new proposal.
(3)  The Minister may decline to recommend to the Governor that the proposal be implemented.

Division 2A How are areas amalgamated or their boundaries altered?

218A   Amalgamation of areas

(1)  The Governor may, by proclamation, amalgamate two or more areas into one or more new areas.
(2)  On the date specified in the proclamation as the date on which the areas are to be amalgamated:
(a)  the areas are dissolved, and
(b)  the new area or new areas are constituted, and
(c)  subject to section 218C, the councillors of the former areas cease to hold office.
(3)  Divisions 1 and 2 apply to a new area constituted by a proclamation under this section in the same way as they apply to an area constituted by a proclamation under section 204.
(4)  Section 212 (2) does not apply to the dissolution of a former area by a proclamation under this section.

218B   Alteration of boundaries of areas

The Governor may, by proclamation, alter the boundaries of one or more areas.

218C   Facilitating provisions of proclamations

(1)  A proclamation of the Governor for the purposes of this Division may include provisions of the same kind as are referred to in section 213.
(2)  Such a proclamation may also include provisions for or with respect to:
(a)  the appointment of administrators for any area constituted by the proclamation, and
(b)  the continuation in office, as councillors of any area constituted by the proclamation, of any or all of the councillors of any area dissolved by the proclamation.
Note. If a proclamation for the purposes of this Division transfers staff members (other than senior staff) from the employment of one council to another council, the provisions of Part 6 of Chapter 11 apply in relation to the transferred staff members.
(3)  Section 224 (1) does not apply to any councillors who continue in office by virtue of such a proclamation.

218CA   Maintenance of staff numbers in rural centres

(1)  This section applies to a council (the transferee council):
(a)  that is constituted as a result of the amalgamation of two or more areas, where the council of one of those areas (the previous council) employed regular staff at a rural centre in the area of the transferee council immediately before the amalgamation took effect, or
(b)  whose geographical area is increased as a result of the alteration of the boundaries of two or more areas, where a council (the previous council) whose geographical area is reduced as a result of the alteration employed regular staff at a rural centre in the area of the transferee council immediately before the alteration took effect.
(2)  The transferee council must ensure that the number of regular staff of the council employed at the rural centre is, as far as is reasonably practicable, maintained at not less than the same level of regular staff as were employed by the previous council at the centre immediately before the amalgamation or alteration of boundaries took effect.
(3)  Subsection (2) does not have effect, or ceases to have effect, in such circumstances (if any) as are prescribed by the regulations.
(4)  In this section:

regular staff of a council means:

(a)  staff appointed to a position within the organisational structure of the council, otherwise than on a temporary basis, and
(b)  casual staff who are engaged by the council on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months and who have a reasonable expectation of continuing employment with the council,
but does not include senior staff.

rural centre has the meaning given by section 354B.

Division 2B What must be done before areas can be amalgamated or their boundaries altered?

218D   Exercise of functions under secs 218A and 218B

A function under section 218A or 218B may be exercised only after a proposal for the exercise of the function is dealt with under this Division.

218E   Who may initiate a proposal?

(1)  A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors.
(2)  An appropriate minimum number of electors is:
(a)  if a proposal applies to the whole of one or more areas, 250 of the enrolled electors for each area or 10 per cent of them, whichever is the greater, or
(b)  if a proposal applies to part only of an area, 250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.

218F   Referral of proposal for examination and report

(1)  On making or receiving a proposal, the Minister must refer it for examination and report to the Boundaries Commission or to the Director-General.
(2)  Sections 263, 264 and 265 apply to the examination of a proposal by the Director-General in the same way as they apply to the examination of a proposal by the Boundaries Commission.
(3)  For the purpose of examining a joint proposal of 2 or more councils for the amalgamation of two or more areas under section 218A, the Boundaries Commission or Director-General, as the case requires, must seek the views of electors of each of those areas:
(a)  by means of:
(i)  advertised public meetings, and
(ii)  invitations for public submissions, and
(iii)  postal surveys or opinion polls, in which reply-paid questionnaires are distributed to all electors, or
(b)  by means of formal polls.
(4)  The period over which the views of electors are to be sought as referred to in subsection (3) must be a period of at least 40 days.
(5)  Part 3 of Chapter 4 applies to a formal poll taken by the Boundaries Commission or Director-General in the same way as it applies to a council poll referred to in that Part.
(6)  If a proposal that is not supported by one or more of the councils affected by it, or that is an amalgamation proposal, has been referred to the Director-General under subsection (1):
(a)  the Director-General must furnish the Director-General’s report to the Boundaries Commission for review and comment, and
(b)  the Boundaries Commission must review the report and send its comments to the Minister.
(7)  The Minister may recommend to the Governor that the proposal be implemented:
(a)  with such modifications as arise out of:
(i)  the Boundaries Commission’s report, or
(ii)  the Director-General’s report (and, if applicable, the Boundaries Commission’s comments on that report), and
(b)  with such other modifications as the Minister determines,
but may not do so if of the opinion that the modifications constitute a new proposal.
(8)  The Minister may decline to recommend to the Governor that the proposal be implemented.

Division 2C

218G–218K(Repealed)

Part 2 Councils

Division 1 Constitution

219   Constitution of councils

A council is constituted by this Act for each area.

220   Legal status of a council

(1)  A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
(2)  A council is not a body corporate (including a corporation).
(3)  A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).
(4)  A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).

221   What is a council’s name?

(1)  The name of a council of an area other than a city is the “Council of X” or the “X Council”, X being the name of the council’s area.
(2)  The name of a council of a city is the “Council of the City of X” or the “X City Council”, X being the name of the city.

222   Who comprise the governing body?

The elected representatives, called “councillors”, comprise the governing body of the council.

223   What is the role of the governing body?

The role of the governing body is to direct and control the affairs of the council in accordance with this Act.

224   How many councillors does a council have?

(1)  A council must have at least 5 and not more than 15 councillors (one of whom is the mayor).
(2)  Not less than 12 months before the next ordinary election, the council must determine the number, in accordance with subsection (1), of its councillors for the following term of office.
(3)  If the council proposes to change the number of councillors, it must, before determining the number, obtain approval for the change at a constitutional referendum.

224A   Approval to reduce number of councillors

(1)  A council may resolve to make an application to the Minister to approve a decrease in the number of councillors within the limits referred to in section 224 (1).
(2)  The council must give not less than 42 days’ public notice of its proposed resolution.
(3)  After passing the resolution, the council must forward to the Minister a copy of the resolution, a summary of any submissions received by it and its comments concerning those submissions.
(4)  The Minister may approve the application without amendment or may decline to approve the application.
(5)  If the Minister approves the application, the number of councillors of the council is reduced to the number specified in the application with effect on and from the day appointed for the next ordinary election of councillors after the application is approved.
(6)  Section 16 does not apply to a resolution of a council to make an application to the Minister under this section.
(7)  An application may be made under this section after the commencement of the Local Government Amendment (Elections) Act 2011 but before the expiry of 5 months after that commencement.
(8)  Nothing in this section prevents a council from making more than one application under this section or from taking action under section 224 to change the number of its councillors.
(9)  A council for an area that is divided into wards may not make an application under this section for a decrease in the number of councillors that would result in the number of councillors for each ward being fewer than 3.

Division 2 The mayor

225   The mayor

An area must have a mayor who is elected in accordance with this Division.

226   What is the role of the mayor?

The role of the mayor is:
•  to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council
•  to exercise such other functions of the council as the council determines
•  to preside at meetings of the council
•  to carry out the civic and ceremonial functions of the mayoral office.

227   Who elects the mayor?

The mayor of an area is the person elected to the office of mayor by:
(a)  the councillors from among their number, unless there is a decision in force under this Division which provides for the election of the mayor by the electors, or
(b)  the electors, if such a decision is in force.
Note. As to the election of the mayor, see also section 282.

228   How is it decided that the mayor be elected by the electors?

(1)  It may be decided at a constitutional referendum that the mayor be elected by the electors.
(2)  A decision that the mayor be elected by the electors takes effect in relation to the next ordinary election after the decision is made.

229   Can the decision be changed?

(1)  A decision that the mayor be elected by the electors is rescinded only if a constitutional referendum decides in favour of discontinuing that means of election.
(2)  The rescission takes effect in relation to the next ordinary election after the rescission occurs.

230   For what period is the mayor elected?

(1)  A mayor elected by the councillors holds the office of mayor for 1 year, subject to this Act.
(2)  A mayor elected by the electors holds the office of mayor for 4 years, subject to this Act.
(3)  The office of mayor:
(a)  commences on the day the person elected to the office is declared to be so elected, and
(b)  becomes vacant when the person’s successor is declared to be elected to the office, or on the occurrence of a casual vacancy in the office.
(4)  A person elected to fill a casual vacancy in the office of mayor holds the office for the balance of the predecessor’s term.

231   Deputy mayor

(1)  The councillors may elect a person from among their number to be the deputy mayor.
(2)  The person may be elected for the mayoral term or a shorter term.
(3)  The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.
(4)  The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.

Division 3 The councillors

232   What is the role of a councillor?

(1)  The role of a councillor is, as a member of the governing body of the council:
•  to provide a civic leadership role in guiding the development of the community strategic plan for the area and to be responsible for monitoring the implementation of the council’s delivery program
•  to direct and control the affairs of the council in accordance with this Act
•  to participate in the optimum allocation of the council’s resources for the benefit of the area
•  to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the council’s regulatory functions
•  to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the council.
(2)  The role of a councillor is, as an elected person:
•  to represent the interests of the residents and ratepayers
•  to provide leadership and guidance to the community
•  to facilitate communication between the community and the council.

233   For what period is a councillor elected?

(1)  A councillor (other than the mayor) holds office for 4 years, subject to this Act.
(2)  The office of councillor:
(a)  commences on the day the person elected to the office is declared to be so elected, and
(b)  becomes vacant on the day appointed for the next ordinary election of councillors, or on the occurrence of a casual vacancy in the office.
(3)  A person elected to fill a casual vacancy in the office of councillor holds the office for the balance of the predecessor’s term.

234   When does a vacancy occur in a civic office?

(1)  A civic office becomes vacant if the holder:
(a)  dies, or
(b)  resigns the office by writing addressed to the general manager, or
(c)  is disqualified from holding civic office, or
(d)  is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under this Act or because the council has been suspended under this Act) without:
(i)  prior leave of the council, or
(ii)  leave granted by the council at any of the meetings concerned, or
(e)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f)  becomes a mentally incapacitated person, or
(g)  is dismissed from civic office, or
(h)  ceases to hold the office for any other reason.
Note. See section 275 for the circumstances in which a person is disqualified from holding civic office.
(2)  For the purposes of subsection (1) (d), a councillor applying for a leave of absence from a meeting of a council does not need to make the application in person and the council may grant such leave in the absence of that councillor.
(3)  If the holder of a civic office attends a council meeting (whether or not an ordinary meeting) despite having been granted leave of absence, the leave of absence is taken to have been rescinded as regards any future council meeting.
(4)  Subsection (3) does not prevent the council from granting further leave of absence in respect of any future council meeting.

Division 4 Local Government Remuneration Tribunal

235   Local Government Remuneration Tribunal

There is established by this Act a tribunal to be known as the Local Government Remuneration Tribunal.

236   Assessors

(1)  For the purposes of this Part, there are to be 2 assessors:
(a)  one of whom is to be the Director-General, and
(b)  the other of whom is to be a person appointed by the Governor on the nomination of the Minister, being a person who has, in the Minister’s opinion, special knowledge of the system of local government in New South Wales.
(2)  The Remuneration Tribunal, in exercising the Remuneration Tribunal’s functions is:
(a)  to be assisted by the assessors, and
(b)  to take into consideration the views and recommendations tendered by the assessors.

237   Provisions relating to the appointment, term of office and remuneration of the Remuneration Tribunal and assessors

Schedule 1 has effect with respect to the Remuneration Tribunal and the assessors.

238   Functions of the Remuneration Tribunal

(1)  The Remuneration Tribunal has the functions conferred or imposed on the Remuneration Tribunal by or under this Act.
(2)  In addition, the Remuneration Tribunal has such functions as may be conferred or imposed on the Remuneration Tribunal by the Minister.

239   Categorisation of councils and mayoral offices

(1)  The Remuneration Tribunal must, at least once every 3 years:
(a)  determine categories for councils and mayoral offices, and
(b)  place each council and mayoral office into one of the categories it has determined.
(2)  The determination of categories by the Remuneration Tribunal is for the purpose of enabling the Remuneration Tribunal to determine the maximum and minimum amounts of fees to be paid to mayors and councillors in each of the categories so determined.

240   How are the categories to be determined?

(1)  The Remuneration Tribunal is to determine categories for councils and mayoral offices according to the following matters:
•  the size of areas
•  the physical terrain of areas
•  the population of areas and the distribution of the population
•  the nature and volume of business dealt with by each council
•  the nature and extent of the development of areas
•  the diversity of communities served
•  the regional, national and international significance of the council
•  such matters as the Remuneration Tribunal considers relevant to the provision of efficient and effective local government
•  such other matters as may be prescribed by the regulations.
(2)  In the application of this section to county councils, the categories of county councils are to be determined having regard also to the functions of county councils.

241   Determination of fees

The Remuneration Tribunal must, not later than 1 May in each year, determine, in each of the categories determined under section 239, the maximum and minimum amounts of fees to be paid during the following year to councillors (other than mayors) and mayors.

242   Special determinations

(1)  The Minister may direct the Remuneration Tribunal to make a determination as to whether, and (if so) how, a determination already made should be altered in relation to such councillors or mayors as are specified in the direction.
(2)  Such a determination must be made before the date specified for the purpose in the Minister’s direction.
(3)  In making the determination, the Remuneration Tribunal is to take into consideration such matters as are specified in the Minister’s direction and such other matters as the Remuneration Tribunal thinks fit.

242A   Tribunal to give effect to declared government policy on remuneration for public sector staff

(1)  In making a determination, the Remuneration Tribunal is to give effect to the same policies on increases in remuneration as those that the Industrial Relations Commission is required to give effect to under section 146C of the Industrial Relations Act 1996 when making or varying awards or orders relating to the conditions of employment of public sector employees.
(2)  The policies referred to in subsection (1) do not include any policy that provides for increases in remuneration based on employee-related savings.

243   Inquiries

(1)  Before making a determination, the Remuneration Tribunal may make such inquiry as the Remuneration Tribunal thinks necessary.
(2)  In exercising a function, the Remuneration Tribunal:
(a)  may obtain and assess information in such manner as the Remuneration Tribunal thinks fit, and
(b)  may receive written or oral submissions, and
(c)  is not required to conduct any proceedings in a formal manner, and
(d)  is not bound by the rules of evidence.

244   Reports of the Remuneration Tribunal

(1)  The Remuneration Tribunal must, within 7 days after making a determination under section 239, make a report to the Minister of the determination.
(2)  The Remuneration Tribunal must, not later than 1 May in each year, make a report to the Minister of the determination made under section 241.
(3)  The Remuneration Tribunal must, within 7 days after making a determination under section 242, make a report to the Minister of the determination.

245   Publication and tabling of reports

(1)  The report of a determination of the Remuneration Tribunal must:
(a)  be published in the Gazette as soon as practicable after the report is received by the Minister, and
(b)  be laid before each House of Parliament within 14 sitting days of that House after the day on which it is so published.
(2)  Failure to lay a report before each House of Parliament in accordance with this section does not affect the validity of a determination, but the report must nevertheless be laid before each House.

246   Effect of determination

A determination of the Remuneration Tribunal may not be challenged, reviewed, quashed or called into question before any court in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition, mandamus, certiorari or otherwise.

247   Assistance for the Remuneration Tribunal

The Minister is to make available to the Remuneration Tribunal such Public Service employees as may be necessary to assist the Remuneration Tribunal in the exercise of the Remuneration Tribunal’s functions.

Division 5 What fees, expenses and facilities may be paid or provided to councillors?

248   Fixing and payment of annual fees for councillors

(1)  A council must pay each councillor an annual fee.
(2)  A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.
(3)  The annual fee so fixed must be the same for each councillor.
(4)  A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.

248A   Annual fees or other remuneration not to be paid during period of suspension

A council must not at any time pay any fee or other remuneration, or any expenses, to which a councillor would otherwise be entitled as the holder of a civic office, in respect of any period during which:
(a)  the councillor is suspended from civic office under this Act, or
(b)  the councillor’s right to be paid any such fee or other remuneration, or expense, is suspended under this Act,
unless another provision of this Act specifically authorises payment to be made, or specifically permits a person to authorise payment to be made, when the suspension is terminated.

249   Fixing and payment of annual fees for the mayor

(1)  A council must pay the mayor an annual fee.
(2)  The annual fee must be paid in addition to the fee paid to the mayor as a councillor.
(3)  A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.
(4)  A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.
(5)  A council may pay the deputy mayor (if there is one) a fee determined by the council for such time as the deputy mayor acts in the office of the mayor. The amount of the fee so paid must be deducted from the mayor’s annual fee.

250   At what intervals are fees to be paid?

Fees payable under this Division by a council are payable monthly in arrears for each month (or part of a month) for which the councillor holds office.

251   What is the consequence of paying fees?

(1)  A person is not, for the purposes of any Act, taken to be an employee of a council and is not disqualified from holding civic office merely because the person is paid a fee under this Division.
(2)  A fee paid under this Division does not constitute salary for the purposes of any Act.

252   Payment of expenses and provision of facilities

(1)  Within 5 months after the end of each year, a council must adopt a policy concerning the payment of expenses incurred or to be incurred by, and the provision of facilities to, the mayor, the deputy mayor (if there is one) and the other councillors in relation to discharging the functions of civic office.
(2)  The policy may provide for fees payable under this Division to be reduced by an amount representing the private benefit to the mayor or a councillor of a facility provided by the council to the mayor or councillor.
(3)  A council must not pay any expenses incurred or to be incurred by, or provide any facilities to, the mayor, the deputy mayor (if there is one) or a councillor otherwise than in accordance with a policy under this section.
(4)  A council may from time to time amend a policy under this section.
(5)  A policy under this section must comply with the provisions of this Act, the regulations and any relevant guidelines issued under section 23A.

253   Requirements before policy concerning expenses and facilities can be adopted or amended

(1)  A council must give public notice of its intention to adopt or amend a policy for the payment of expenses or provision of facilities allowing at least 28 days for the making of public submissions.
(2)  Before adopting or amending the policy, the council must consider any submissions made within the time allowed for submissions and make any appropriate changes to the draft policy or amendment.
(3)  Despite subsections (1) and (2), a council need not give public notice of a proposed amendment to its policy for the payment of expenses or provision of facilities if the council is of the opinion that the proposed amendment is not substantial.
(4)  Within 28 days after adopting a policy or making an amendment to a policy for which public notice is required to be given under this section, a council is to forward to the Director-General:
(a)  a copy of the policy or amendment together with details of all submissions received in accordance with subsection (1), and
(b)  a statement setting out, for each submission, the council’s response to the submission and the reasons for the council’s response, and
(c)  a copy of the notice given under subsection (1).
(5)  A council must comply with this section when proposing to adopt a policy each year in accordance with section 252 (1) even if the council proposes to adopt a policy that is the same as its existing policy.

254   Decision to be made in open meeting

The council or a council committee all the members of which are councillors must not close to the public that part of its meeting at which a policy for the payment of expenses or provision of facilities is adopted or amended, or at which any proposal concerning those matters is discussed or considered.

254A   Circumstances in which annual fees may be withheld

(1)  Despite this Division, a council may resolve that an annual fee will not be paid to a councillor or that a councillor will be paid a reduced annual fee determined by the council:
(a)  for any period of not more than 3 months for which the councillor is absent, with or without leave, from an ordinary meeting or ordinary meetings of the council, or
(b)  in any other circumstances prescribed by the regulations.
Note. Section 428 (2) (f) requires a council to include, in its annual report:
•  the total amount of money expended during the year on mayoral fees and councillor fees
•  the council’s policy on the provision of facilities for, and the payment of expenses to, councillors
•  the total amount of money expended during the year on providing those facilities and paying those expenses.
(2)  Despite this Division, if a councillor is absent, with or without leave of the council, from ordinary meetings of the council for any period of more than 3 months, the council must not pay any annual fee, or part of an annual fee, to that councillor that relates to the period of absence that is in excess of 3 months.

Division 6 Appointment of administrator

255   Governor may dismiss mayor and councillors

(1)  The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if:
(a)  a public inquiry concerning the council has been held, and
(b)  the Minister has recommended that the Governor make such a declaration.
(1A)  The Minister may recommend that the Governor make such a declaration only:
(a)  after considering the results of the public inquiry, or
(b)  if the Minister decides to issue a performance improvement order to the council in response to the results of the public inquiry—after issuing the order and considering whether the council has complied with the order.
(2)  The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the making of such a declaration because of systemic corruption within the council.
(3)  If the Independent Commission Against Corruption makes such a recommendation, all civic offices in relation to the council may be declared vacant under subsection (2) without the holding of a public or other inquiry concerning the council. However, the making of such a recommendation does not preclude the holding of a public or other inquiry.
(4)  For the purposes of this Act, a council is dismissed if the Governor declares all civic offices in relation to the council to be vacant.

256   Governor may appoint administrator or order fresh election

(1)  By the same proclamation under section 255 or by one or more subsequent proclamations, the Governor is:
(a)  to appoint an administrator of the council for a specified term, or
(b)  to order the holding of a fresh council election,
or both.
(1A)  More than one administrator may be appointed (with the same or different functions).
(2)  The Governor may, by those or other proclamations, make such further orders as the Minister recommends are necessary in the circumstances.

257   Declaration of council as non-functioning

(1)  An administrator may be appointed for an area by the Governor without the necessity for a public inquiry if the Governor declares the council to be non-functioning because:
(a)  the requirements of this Act as to the making and levying of an ordinary rate have not been followed, or
(b)  the council has not exercised its functions for 6 months or more, or
(c)  there are not enough councillors for there to be a quorum at council meetings.
(2)  The Governor may, as an alternative to the appointment of an administrator on the ground referred to in subsection (1) (c), appoint (or authorise a special election to elect) councillors to fill all the vacancies on the council or such number of those vacancies as will provide a quorum at meetings.

258   Administrator

(1)  When an administrator of a council appointed under this Division takes office:
(a)  any persons holding civic office in relation to the council cease to hold office, and
(b)  the administrator has all the functions of the council until immediately before the first meeting of the council held after the fresh election.
(1A)  If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.
(2)  An administrator must be paid a salary from the council’s funds determined by the Governor.
(2A)  If more than one administrator is appointed for a council, the Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one administrator.
(3)  The Governor may terminate an administrator’s appointment at any time.
(4)  An administrator ceases to hold office:
(a)  immediately before the first meeting of the council held after the fresh election, or
(b)  if the administrator’s appointment is earlier terminated by the Governor.

259   Temporary exercise of the council’s functions

(1)  In this section, the transitional period means the period between:
(a)  the appointment of an administrator of a council and the time at which the administrator takes office, or
(b)  the declaration of a council to be non-functioning and the time at which the appointed or elected councillors for the area take office, if the declaration provides for their appointment or election instead of the appointment of an administrator.
(2)  During the transitional period, the mayor, or the general manager if there is no mayor, may temporarily exercise the following functions of the council:
(a)  the continuation of works and services already commenced,
(b)  the payment of council employees,
(c)  the payment of accounts due,
(d)  the administration of the area without expenditure other than those payments and payments approved by the Minister.

Part 3 Local Government Boundaries Commission

260   Constitution of the Boundaries Commission

There is constituted by this Act a body corporate with the name of Local Government Boundaries Commission.

261   Membership of Boundaries Commission

(1)  The Boundaries Commission is to consist of 4 commissioners appointed by the Governor.
(2)  Of the commissioners:
(a)  one is to be a person nominated by the Minister, and
(b)  one is to be an officer of the Department nominated by the Director-General, and
(c)  2 are to be persons appointed from the panel constituted under section 262 (1).
(3)  Despite subsection (2), the Boundaries Commission is taken to be properly constituted when the commissioners referred to in paragraphs (a) and (b) of that subsection have been appointed.
(4)  The commissioner referred to in subsection (2) (a) is the chairperson of the Boundaries Commission.
(5)  Schedule 2 has effect with respect to the commissioners and the procedure of the Boundaries Commission.

262   How is a panel to be constituted for the purposes of making an appointment as a commissioner?

(1)  There is to be a panel consisting of 8 persons who are councillors nominated by the executive of the Local Government and Shires Association of New South Wales.
(2)  The nomination of members of the panel must be made in the manner determined by the Minister. A person must not be nominated as a member of the panel unless he or she has consented in writing to be nominated.
(3)  If an insufficient number of nominations have been made to the panel to enable the Governor to appoint a commissioner or commissioners in accordance with this Part, the Governor may appoint a person to be a commissioner on the recommendation of the Minister.

263   Functions of the Boundaries Commission

(1)  The Boundaries Commission is required to examine and report on any matter with respect to the boundaries of areas and the areas of operation of county councils which may be referred to it by the Minister.
(2)  For the purpose of exercising its functions, the Boundaries Commission:
(a)  may hold an inquiry if the Minister so approves, and
(b)  must hold an inquiry if the Minister so directs,
but may not hold an inquiry otherwise than as referred to in paragraph (a) or (b).
(2A)  Despite subsection (2), the Boundaries Commission must hold an inquiry for the purpose of exercising its functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with section 218F.
(2B)  Reasonable public notice must be given of the holding of an inquiry under this section.
(3)  When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors:
(a)  the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned,
(b)  the community of interest and geographic cohesion in the existing areas and in any proposed new area,
(c)  the existing historical and traditional values in the existing areas and the impact of change on them,
(d)  the attitude of the residents and ratepayers of the areas concerned,
(e)  the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area,
(e1)  the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities,
(e2)  the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned,
(e3)  the impact of any relevant proposal on rural communities in the areas concerned,
(e4)  in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards,
(e5)  in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented,
(f)  such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas.
(4)  The Boundaries Commission is not entitled to examine or report on any matter relating to the area of operations of a county council constituted or proposed to be constituted for the supply of electricity.
(5)  The Boundaries Commission must allow members of the public to attend any inquiry held by the Commission under this section.
(6)  The Boundaries Commission may continue with an examination or inquiry even though a commissioner or acting commissioner replaces another commissioner during the course of the examination or inquiry.
(7)  The Supreme Court may not make an order in the nature of prohibition in respect of, or an order for removing to the Court or quashing, any decision or proceeding made or conducted by the Boundaries Commission in connection with the exercise of its functions.

264   Can a person be represented in proceedings before the Boundaries Commission?

(1)  In proceedings before the Boundaries Commission, a person is not entitled to be represented:
(a)  by an Australian lawyer or by a person qualified for admission as an Australian lawyer, or
(b)  by any person acting for a fee or reward.
(2)  However, this section does not prevent:
(a)  an employee of a person from representing the person before the Boundaries Commission if the employee is not a person referred to in subsection (1) (a), or
(b)  a person who is the mayor of an area or the chairperson of a county council from appearing in that capacity in proceedings before that Commission, or
(c)  a person referred to in subsection (1) (a) from preparing any documents or submissions or tendering any legal advice in connection with any proceedings before that Commission.

265   Boundaries Commission may conduct survey or poll

(1)  To assist it in determining the attitude of the residents and ratepayers of an area or areas for the purposes of section 263 (3) (d), the Boundaries Commission may conduct (in such manner as it thinks appropriate) an opinion survey or poll of the residents and ratepayers.
(2)  The residents and ratepayers of the area or areas concerned may participate in any such opinion survey or poll but are not required to do so.
(3)  The Boundaries Commission may request the Electoral Commissioner, a council or any other person or organisation to conduct any such opinion survey or poll.

Chapter 10 How are people elected to civic office?

Introduction. This Chapter deals with the election of persons to civic office. Those qualified for civic office are elected for 4-year terms under a system which is preferential (wherever 1 position must be filled) and proportional (wherever 2 or more positions must be filled). Voting is compulsory for residents but optional for non-resident ratepayers, occupiers and ratepaying lessees. Elections are conducted under the supervision of the general manager of the council or the Electoral Commissioner.

When an area is not divided into wards, councillors are elected by the area. When it is divided, councillors may be elected by wards (or, if so decided at a referendum, by wards and area).

The mayor may be popularly elected or elected by the councillors from among their number. The choice of method depends on a constitutional referendum as referred to in sections 228 and 229. A popularly-elected mayor holds office for 4 years and is a councillor by virtue of being mayor. A mayor elected by the councillors holds office for 1 year. In each case, the mayor votes as mayor, not as a councillor, at council meetings. (See Chapter 9.)

Part 1 Who may vote?

266   Who has the right to be enrolled as an elector?

(1)  A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if:
(a)  he or she is a resident of the ward, or
(b)  he or she is not a resident of the ward but is an owner of rateable land in the ward, or
(c)  he or she is an occupier, or ratepaying lessee, of rateable land in a ward.
(2)  A person who is disqualified by section 25 of the Parliamentary Electorates and Elections Act 1912 from having his or her name placed or retained on a roll under that Act is subject to the same disqualification in relation to a roll under this Act.

267   Who has the right to vote?

(1)  A person whose name is on the roll kept under Division 2 of Part 6 for a ward is entitled to vote:
(a)  at an election of councillors for the ward, and
(b)  at an election of the mayor by all the electors of the area.
(2)  A person who changes his or her name from that on the roll may, until the roll is corrected, vote under the enrolled name.
(3)  The right of an enrolled person to vote at an election is not affected by:
(a)  a change of residence within a ward or within an area that is not divided into wards, or
(b)  a change in the qualification that entitles an enrolled person to vote.
(4)  A person who:
(a)  is qualified in respect of more than one parcel of land to be enrolled for a ward, and
(b)  is enrolled in respect of only one of the parcels, and
(c)  ceases to be qualified in respect of that parcel,
is not disqualified from voting at an election held while the person is enrolled in respect of that parcel if the returning officer is satisfied that the person is then qualified in respect of another of the parcels.
(5)  This section does not confer a right to vote at an election on a person who by or under this Act is disqualified from voting, or is not qualified to vote, at the election.

268   One vote per elector

Nothing in this Chapter entitles a person to more than one vote in one area in an election.
Note. A person may not exercise more than one vote in any one area even if:
•  the person is entitled to be enrolled as an elector for more than one ward in the area; or the person’s entitlement is based on more than one of the criteria in section 266 (1) (a), (b) and (c), or
•  the person’s entitlement is based on the ownership or occupation of more than one parcel of land in the area.

269   Who is a “resident” for the purposes of this Part?

(1)  For the purposes of this Part, a person is a resident of a ward if:
(a)  the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the roll for an electoral district, and
(b)  the person’s place of living as described on that roll is in the ward or (in the case of a person whose place of living is not described on that roll) the person’s place of living is in the ward.
(2)  (Repealed)
(3)  In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there.

270   Who is an “owner of rateable land” for the purposes of this Part?

(1)  For the purposes of this Part, a person is the owner of rateable land if:
(a)  the person is not a corporation, is the sole owner of the rateable land and does not own it as trustee, or
(b)  the person is not a corporation, is a joint or several owner of the rateable land and is nominated in writing as an elector by the only other owner of the land, or by a majority of all the owners of the land, or
(c)  the person is not a corporation, is not a nominee under paragraph (b) and is nominated in writing as an elector by a corporation which is the owner, or by trustees who are the owners, of the land, or
(d)  the person is a lessee of the land from the Crown and the land is rateable Crown land.
(2)  Land is not rateable land for the purposes of this Part if it is a lot in a strata plan that is registered under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 and is provided only for the purpose of parking a motor vehicle.
(3)  If there is more than one person who (by virtue of subsection (1)) is the owner of the same parcel of rateable land, only one of the persons is entitled to be enrolled as an elector for a ward.
(4)  If a corporation or trustees own more than one parcel of land in an area, or if joint or several owners of one parcel of land in an area are also joint or several owners of any other parcel of land in the area, it or they can nominate a person as the owner of rateable land only in respect of one of those parcels.
(5)  A nomination under this section is to be lodged with the general manager.

271   Who is an “occupier” or “ratepaying lessee” for the purposes of this Part?

(1)  For the purposes of this Part, a person is an occupier of rateable land if the person has a legally enforceable right to continuous occupation of rateable land (jointly or severally, but not as owner or ratepaying lessee) for not less than 3 years following the relevant date.
(2)  If there is more than one such occupier of the same parcel of rateable land, only one of them is entitled to be enrolled as an elector for a ward.
(2A)  If a corporation or trustees is or are occupiers of more than one parcel of land in an area, or if joint or several occupiers of one parcel of land in an area are also joint or several occupiers of any other parcel of land in the area, it or they can nominate a person as the occupier of rateable land only in respect of one of those parcels.
(3)  For the purposes of this Part, a person is a ratepaying lessee of rateable land if the person is jointly or severally liable, under a lease in writing or other document of title relating to the land, to pay to any person the whole or any part of any rates that may, during the 3 years following the relevant date, be made or levied in respect of the land.
(4)  If there is more than one such ratepaying lessee of the same parcel of rateable land, only one of them is entitled to be enrolled as an elector for a ward.
(4A)  If a corporation or trustees is or are ratepaying lessees of more than one parcel of land in an area, or if joint or several ratepaying lessees of one parcel of land in an area are also joint or several ratepaying lessees of any other parcel of land in the area, it or they can nominate a person as the ratepaying lessee of rateable land only in respect of one of those parcels.
(5)  The relevant date for the purposes of this section is:
(a)  the date on which the claim for enrolment is made, if the claim is for inclusion in the roll of occupiers and ratepaying lessees, or
(b)  the closing date for the election referred to in Part 4, if the claim is for the purpose of voting in the election.

272   Competing claimants

(1)  If two or more persons apply to be enrolled as an elector for a ward as owners of the same parcel of rateable land, and those persons do not nominate one of their number to be so enrolled, the general manager may do so instead.
(2)  Likewise, if two or more persons apply to be enrolled as an elector for a ward as occupiers, or as ratepaying lessees, or as occupier and ratepaying lessee, of the same parcel of land, and those persons do not nominate one of their number to be so enrolled, the general manager may do so instead.

273   Application of Part to area not divided into wards

If an area is not divided into wards, this Part applies to the area in the same way as it applies to a ward.

Part 2 Who may be elected?

274   What are the qualifications for civic office?

A person is qualified to hold civic office if:
(a)  the person is entitled to be enrolled as an elector, and
(b)  the person is not disqualified from holding civic office by this Act, and
(c)  the person is not prevented from being elected to civic office by section 276 (2).

275   Who is disqualified from holding civic office?

(1)  A person is disqualified from holding civic office:
(a)  while disqualified from being an elector, or
(a1)  while a member of the Parliament of New South Wales, except as provided by subsections (5) and (7), or
(b)  while a judge of any court of the State or the Commonwealth, or
(c)  while serving a sentence (including a sentence the subject of an intensive correction order) for a serious indictable offence or any other offence, except a sentence imposed for a failure to pay a fine, or
(d)  if he or she is while holding that office, or has been within 2 years before nomination for election, election or appointment to the office, convicted of an offence under the regulations made for the purposes of section 748 (3), or
(e)  if he or she is while holding that office, or has been within 5 years before nomination for election, election or appointment to the office, convicted of an offence referred to in Part 4 of the Crimes Act 1900 (Offences relating to property), or
(f)  while a surcharge, payable by the person under Part 5 of Chapter 13 and not paid within 6 months after it became payable, remains unpaid, or
(g)  while disqualified from holding a civic office under a provision of this Act or Part 4A of the Crimes Act 1900 (Corruptly receiving commissions and other corrupt practices), or
(h)  while disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 of the Commonwealth.
(2)  A person is disqualified from holding civic office on a council if he or she is an employee of the council or holds an office or place of profit under the council.
(3)  A person is not disqualified from holding a civic office only because, while holding the civic office, the person ceases to be a resident in the area, to own property in the area or to be an occupier or ratepaying lessee of rateable land in the area.
(4)  A person is taken not to be disqualified from holding civic office if the former Administrative Decisions Tribunal or the Civil and Administrative Tribunal, in proceedings under section 329, has refused to order the dismissal of the person in circumstances to which subsection (4) of that section applies.
(5)  If:
(a)  on the commencement of this subsection, a member of the Parliament of New South Wales is a councillor or mayor, or
(b)  after the commencement of this subsection, a councillor or mayor becomes a member of the Parliament of New South Wales,
the person is not disqualified from holding civic office because of subsection (1) (a1) for the balance of the person’s term of office as a councillor or for the period of 2 years (whichever is the shorter period).
(6)  Subsection (5) does not apply where a councillor or mayor becomes a member of the Parliament of New South Wales after the commencement of that subsection and within 12 months after last ceasing to be a member of that Parliament.
(7)  Despite anything to the contrary in this Chapter, a member of the Parliament of New South Wales is not disqualified because of subsection (1) (a1) from being nominated for election or being elected to a civic office. If elected, the person is disqualified from holding that civic office unless:
(a)  the person has ceased to be a member of that Parliament before the first meeting of the council concerned after the election, or
(b)  it is an election as mayor by the councillors during the period that the person is not disqualified by the operation of subsection (5).
Note. If a person while holding civic office becomes subject to disqualification under this section, the office becomes vacant under section 234.

276   What is the effect of disqualification?

(1)  A person who is disqualified from holding civic office may not be elected or appointed to a civic office and may not hold, or act in, a civic office.
(2)  A person who vacates the office of councillor by resignation or disqualification may not be elected to a civic office in the same area (and may not hold, or act in, a civic office in the same area) until:
(a)  if the person is not disqualified—the first anniversary of the vacation of office, or the next ordinary election for the area (whichever occurs first), or
(b)  if the person is disqualified—the first ordinary election after the person ceases to be disqualified.
(3)  A person convicted of an offence under Part 6 of Chapter 16 for acting in a civic office while disqualified under section 275:
(a)  is disqualified from holding civic office for 7 years from the time of conviction, unless the court determines a shorter period, and
(b)  is not entitled to receive or recover from the council any money relating to the civic office in respect of the period in which the person is disqualified.
(4)  The council may, within 2 years after the person so convicted receives money from the council relating to the civic office in respect of the period in which the person is disqualified, recover the money from the person as a debt.

277   May the holder of a civic office be re-elected?

(1)  The holder of a civic office is eligible for re-election, subject to this Act.
(2)  The holder of a civic office is not disqualified from being re-elected merely because the holder, or the council, is suspended under this Act.

Part 3 What is the system of election?

278   Election of councillors for an area not divided into wards

The councillors for an area that is not divided into wards are to be elected by an electorate comprising all the electors for the area.

279   Alternative methods for election of councillors for an area divided into wards

(1)  The councillors for an area that is divided into wards are to be elected in accordance with either section 280 or 281.
(2)  The method of election under section 280 (method 1) is to apply unless a decision made at a constitutional referendum is in force which:
(a)  requires the method of election under section 281 (method 2) to apply, and
(b)  specifies the number of councillors each of whom is to be elected by an electorate comprising all the electors for a ward and the number of councillors (if any) each of whom is to be elected by an electorate comprising all the electors for the area.

280   Ward election of councillors—method 1

(1)  Each councillor for an area that is divided into wards may be elected by an electorate comprising all the electors for a ward.
(2)  The same number of councillors is to be elected for each ward. The mayor is to be excluded when determining that number if the mayor is to be elected by all the electors for the area.
(3)  The same person is not to be a candidate for election as a councillor by the electors for more than one ward, unless the election is for the mayor as such.

281   Election of councillors partly by wards, partly by area—method 2

(1)  The councillors for an area that is divided into wards may be elected:
(a)  as to some of them—each by an electorate comprising all the electors for a ward, and
(b)  as to the others—by an electorate comprising all the electors for the area.
(2)  The same number of councillors is to be elected for each ward. The mayor is to be excluded when determining that number if the mayor is to be elected by all the electors for the area.
(3)  If a person is a candidate for election as a councillor by the electors for a ward, the person must not at the same time be a candidate for election as a councillor by the electors for another ward or a candidate for election as a councillor by all the electors for the area, unless the election is for the mayor as such.

282   Election of mayor

(1)  The mayor of an area who is to be elected by the electors is to be elected by an electorate comprising all the electors for the area, even if the area is divided into wards.
(2)  The mayor of an area who is to be elected by the councillors for the area is to be elected by the councillors from among their number.
(3)  A mayor elected for an area is one of the councillors of the council for the area.

283   Double candidature

(1)  A person may be a candidate for election as mayor and a candidate for election as a councillor at the same time.
(2)  If a person is elected by the electors as mayor and the person is also a candidate for election as a councillor, the votes cast for the person as a councillor are not to be counted for that person but are to be distributed as prescribed by the regulations.
(3)  (Repealed)

284   Voting system for election of the mayor by all the electors of the area

The voting system in a contested election of the mayor by all the electors of the area is to be optional preferential.

285   Voting system for election of councillors

The voting system in a contested election of a councillor or councillors is to be:
(a)  optional preferential, if only one councillor is to be elected, or
(b)  proportional, if 2 or more councillors are to be elected.

286   Is voting compulsory?

Whichever voting system applies, electors on the residential roll must vote at a contested election unless exempt from voting under this Act. Electors on the non-residential roll or the roll of occupiers and ratepaying lessees may vote, but are not required to vote.

Part 4 When are elections held?

287   When is an ordinary election of councillors held?

(1)  An ordinary election of the councillors for an area is to be held on the second Saturday of September 2008 and on the second Saturday of September in every fourth year after 2008.
(2)  An election of the councillors for an area is to be held on a Saturday proclaimed for the purpose if:
(a)  the area is constituted after the commencement of this Part, or
(b)  the council for the area is dismissed, or
(c)  the council is declared to be non-functioning under section 257.

288   Delayed elections of councillors

(1)  If the Minister is of the opinion that it would be impracticable or inconvenient to hold an election as provided by section 287, the Minister may, by order published in the Gazette, appoint a subsequent Saturday for the election.
(2)  The subsequent Saturday must not be more than 28 days later than the day when the election should have been held.
(3)  If a day is appointed under this section for an election, the retiring councillors continue in office until the election is held and, if a retiring councillor resigns in the meantime, his or her office is vacant until the election is held.

289   When is an election of a mayor by the electors to be held?

(1)  The election of a mayor by the electors for an area is to be held (unless its purpose is the filling of a casual vacancy):
(a)  on the day on which the election of the councillors for the area is held, or
(b)  if the election of the councillors is uncontested, on the day on which the election of the councillors would have been held if it had been contested.
(2)  If a mayor of an area is to be elected by the electors on the day on which a contested election of councillors for the area is to be held and the election of the councillors is delayed for any reason, the election of the mayor is also delayed but must be held on the same day as the delayed election of the councillors.

290   When is an election of a mayor by the councillors to be held?

(1)  The election of the mayor by the councillors is to be held:
(a)  if it is the first election after an ordinary election of councillors—within 3 weeks after the ordinary election, or
(b)  if it is not that first election or an election to fill a casual vacancy—during the month of September, or
(c)  if it is the first election after the constitution of an area—within 14 days after the appointment of a provisional council or the first election of the council if a provisional council is not appointed, or
(d)  if the relevant council is a non-functioning council, or a council of which all civic offices have been declared vacant, and the election is the first to be held after the appointment or election of the councillors—within 14 days after the appointment or election of the councillors.
(2)  If the councillors fail to elect a mayor as required by this section, the Governor may appoint one of the councillors as the mayor.
(3)  For the purposes of this section, an election of councillors does not conclude until the declaration of election of all the councillors of the council concerned.
Note. The filling of a casual vacancy in the office of a mayor elected by the councillors is dealt with in section 295.
Note. Elections are not held while a council is suspended under Part 7 or 8 of Chapter 13.

Part 5 How are casual vacancies filled?

291   By-elections

If a casual vacancy occurs in a civic office, the office is to be filled by a by-election, subject to this Part.
Note. The circumstances in which casual vacancies occur are specified in Chapter 9.

292   When is a by-election to be held?

A by-election to fill a casual vacancy in the office of a councillor or a mayor elected by the electors of an area is to be held on a Saturday that:
(a)  falls not later than 3 months after the vacancy occurs, and
(b)  is fixed by the general manager (in relation to an election administered by the general manager) or the Electoral Commissioner (in relation to an election administered by the Electoral Commissioner).

293   Delayed by-elections

(1)  If the Minister is of the opinion that it would be impractical or inconvenient to hold a by-election as provided by section 292, the Minister may, by order published in the Gazette, appoint a subsequent Saturday for the by-election.
(2)  The subsequent Saturday must not be more than 28 days later than the day when the by-election should have been held.

294   Dispensing with by-elections

(1)  This section applies if a casual vacancy occurs in the office of a councillor, including a mayor elected by the electors of an area, within 18 months before the date specified for the next ordinary election of the councillors for the area.
(2)  If such a casual vacancy occurs in the office of a councillor (but not the office of a mayor elected by the electors), the Minister may, on the application of the council:
(a)  order that the vacancy not be filled, or
(b)  order the holding on a stated day of a by-election to fill the vacancy and revoke any earlier order made under paragraph (a).
(3)  If such a casual vacancy occurs in the office of a mayor elected by the electors, the casual vacancy is to be filled by the Governor appointing to the vacant office a councillor nominated by the council.
(4)  If the council does not nominate a councillor for the purposes of subsection (3), the Governor may appoint one of the councillors to the vacant office.

294A   Casual vacancy not to be filled where councillor numbers reduced

(1)  A casual vacancy in the office of a councillor (but not a mayor elected by the electors) is not to be filled if the Minister has approved an application under section 224A to reduce the number of councillors but the reduction has not yet taken effect.
(2)  However, subsection (1) does not authorise a vacancy to remain unfilled if the vacancy will result in the council having less councillors than the reduced number approved by the Minister under section 224A.
(3)  Subsection (1) applies to a casual vacancy whether occurring before or after the commencement of this section or before or after the approval of the relevant application under section 224A.

294B   Casual vacancy not to be filled where councillor numbers reduced—approved by constitutional referendum

(1)  Despite section 17 (2), a casual vacancy in the office of a councillor (but not a mayor elected by the electors) is not to be filled if a constitutional referendum has approved a reduction in the number of councillors but the reduction has not yet taken effect.
(2)  However, subsection (1) does not authorise a vacancy to remain unfilled if the vacancy will result in the council having less councillors than the reduced number approved by the constitutional referendum.
(3)  Subsection (1) applies to a casual vacancy whether occurring before or after the commencement of this section or before or after the constitutional referendum.

295   Casual vacancy in office of mayor elected by the councillors

(1)  If a casual vacancy occurs in the office of a mayor elected by the councillors, the vacancy is to be filled at a meeting of the council to be held within 14 days after the occurrence of the vacancy.
(2)  If the councillors fail to elect a mayor as required by this section, the Governor may appoint one of the councillors as the mayor.

Part 6 How are elections conducted?

Division 1 Administration of elections

296   How elections are to be administered

(1)  Elections for the purposes of this Chapter are to be administered by the general manager of the council concerned, except as provided by this section.
Note. Section 18 provides that certain provisions of this Act (relating to the conduct of elections) apply to council polls and constitutional referendums, with such modifications as may be necessary, in the same way as they apply to elections.
(2)  A council can enter into an arrangement (an election arrangement) with the Electoral Commissioner, by contract or otherwise, for the Electoral Commissioner to administer elections of the council as provided by this section. If such an arrangement is entered into, the Electoral Commissioner is to administer elections of the council in accordance with the arrangement.
(3)  An election arrangement for the Electoral Commissioner to administer all elections of a council can be entered into if:
(a)  the council resolves at least 18 months before the next ordinary election of councillors that such an arrangement is to be entered into, and
(b)  the arrangement is entered into no later than 15 months before the next ordinary election of councillors.
(4)  An election arrangement for the Electoral Commissioner to administer a particular election of a council (other than an ordinary election of councillors) can be entered into at any time if the council has resolved that an election arrangement for the election is to be entered into.
(5)  An election arrangement for the Electoral Commissioner to administer an ordinary election of councillors can be entered into less than 15 months before the election if:
(a)  the council has resolved that an election arrangement for the election is to be entered into, and
(b)  the Electoral Commissioner is satisfied that there are exceptional circumstances that make it necessary or desirable for the election to be administered by the Electoral Commissioner.
(6)  An election arrangement for the Electoral Commissioner to administer all elections of a council can be terminated by the council or the Electoral Commissioner at any time after the next ordinary election of councillors (by giving written notice of termination). If the arrangement is not terminated by either party after an ordinary election of councillors, the arrangement is automatically terminated 18 months before the next ordinary election of councillors.
(7)  The Electoral Commissioner is to administer the first election for an area after its constitution. Expenses incurred by the Electoral Commissioner (including the remuneration of election officials) in connection with such an election are to be met by the council and are recoverable from the council as a debt owed to the Electoral Commissioner.
(8)  This section does not apply to an election of the mayor or a deputy mayor by councillors.

296A   Elections administered by a general manager

(1)  This section applies to an election administered by the general manager of a council.
(2)  The general manager is to appoint a returning officer and a substitute returning officer for the election. In the absence of the returning officer, the substitute returning officer is to exercise the functions of the returning officer.
(3)  The returning officer is to appoint one or more electoral officials.
(4)  An employee of a council for an area cannot be appointed as a returning officer or substitute returning officer for that area. However, an electoral official may be an employee of the council.
(5)  A general manager cannot be appointed as a returning officer, substitute returning officer or electoral official for any area.
(6)  For the purpose of conducting an election, the returning officer and substitute returning officer for an area are entitled to access to any relevant records of the council for the area.
(7)  For the purpose of administering an election, the general manager is to:
(a)  appoint the polling places, and
(b)  determine the fees payable to the returning officer, substitute returning officer and electoral officials.
(8)  For the purpose of conducting an election, the returning officer is to determine any matter not provided for by this Act or the regulations.
(9)  Expenses incurred by the returning officer, substitute returning officer and electoral officials in connection with an election are to be met by the council.
(10)  The returning officer and the substitute returning officer must not vote at any election that they are conducting.

296B   Elections administered by the Electoral Commissioner

(1)  This section applies to an election administered by the Electoral Commissioner.
(2)  The Electoral Commissioner is to appoint a returning officer and a substitute returning officer for each area. The returning officer is to conduct elections on behalf of, and under the direction of, the Electoral Commissioner. In the absence of the returning officer, the substitute returning officer is to exercise the functions of the returning officer.
(3)  The returning officer is to appoint one or more electoral officials.
(4)  An employee of a council for an area cannot be appointed as a returning officer or substitute returning officer for that area. However, an electoral official may be an employee of the council.
(5)  For the purpose of conducting an election, the returning officer and substitute returning officer for an area are entitled to access to any relevant records of the council for the area.
(6)  For the purpose of conducting an election, the Electoral Commissioner is to:
(a)  appoint the polling places, and
(b)  determine the fees payable to the returning officer, substitute returning officer and electoral officials, and
(c)  determine any matter not provided for by this Act or the regulations.
(7)  The Electoral Commissioner, the returning officer and the substitute returning officer must not vote at any election that they are conducting.

297   Delegation of functions by the Electoral Commissioner

The Electoral Commissioner may delegate to a person any of the Electoral Commissioner’s functions under this Act, other than this power of delegation.

Division 2 Electoral rolls

298   Residential roll

(1)  The Electoral Commissioner is to keep a roll for each area of persons who, in the opinion of the Electoral Commissioner, are entitled, in accordance with Part 1, to be enrolled as electors because they are residents of the area.
(2)  The Electoral Commissioner may use the roll used for elections of the Legislative Assembly or for Commonwealth elections as a basis for the residential roll.
(3)  (Repealed)

299   Non-residential roll

(1)  Not later than the closing date for an election, the general manager is to prepare a roll of non-resident owners of rateable land for confirmation as the roll of non-resident owners of rateable land within the area.
(2)  The roll of non-resident owners of rateable land lapses after the election for which it is prepared, and it consists only of the names of those non-resident owners of rateable land who have applied for the inclusion of their names for the purposes of the election for which it is being prepared.
(3)  The general manager (in relation to an election administered by the general manager) is to confirm as the roll of non-resident owners of rateable land for the election the roll referred to in subsection (1) if, in the general manager’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the roll of non-resident owners of rateable land.
(4)  The Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to confirm as the roll of non-resident owners of rateable land for the election a roll certified by the general manager as being, in the general manager’s opinion, a roll of the persons who on the closing date are qualified for inclusion in the roll of non-resident owners of rateable land.

300   Roll of occupiers and ratepaying lessees

(1)  Not later than the closing date for an election, the general manager is to prepare the roll of occupiers and ratepaying lessees for confirmation as the roll of occupiers (of land within the area) and ratepaying lessees (of rateable land within the area) for the election.
(2)  The roll of occupiers and ratepaying lessees lapses after the election for which it is prepared, and it consists only of the names of those occupiers and ratepaying lessees who have applied for the inclusion of their names for the purpose of the election for which it is being prepared.
(3)  The general manager (in relation to an election administered by the general manager) is to confirm as the roll of occupiers and ratepaying lessees for the election the roll referred to in subsection (1) if, in the general manager’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the roll of occupiers and ratepaying lessees.
(4)  The Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to confirm as the roll of occupiers and ratepaying lessees for the election a roll certified by the general manager as being, in the general manager’s opinion, a roll of the persons who on the closing date are qualified for inclusion in the roll of occupiers and ratepaying lessees.

301   Roll of electors

(1)  The roll of electors for an area is a composite roll, consisting of the residential roll kept by the Electoral Commissioner under section 298 for the area, the non-residential roll prepared and confirmed under section 299 for the area, and the roll of occupiers and ratepaying lessees prepared and confirmed under section 300 for the area.
(2)  For each election, an authorised copy of the roll of electors is to be compiled in accordance with this Division.
(3)  If an area is divided into wards, the authorised copy of the roll of electors is to be prepared separately for each ward or, if the authorised copy of the roll is for a by-election to fill a casual vacancy, only for the ward in which the by-election is to be held.
(4)  An authorised copy of the roll referred to in subsections (2) and (3) is a printed or electronic copy of the roll of the electors for the area or ward concerned as at the closing date for the election.

302   Public inspection of roll of electors

(1)  The Electoral Commissioner is to make the latest copy of the residential roll available for public inspection at any reasonable time during office hours at the office of the Electoral Commissioner and at any other place determined by the Electoral Commissioner.
(2)  The general manager is to make the latest copy of the non-residential roll and of the roll of occupiers and ratepaying lessees (once it is prepared) available for public inspection at any reasonable time during office hours at the office of the council.

303   Making of claims for inclusion in the roll

(1)  A person may lodge with the Electoral Commissioner (in the case of the residential roll) or the general manager (in the case of another roll):
(a)  a claim for the inclusion of his or her name in the roll or for the amendment of any particulars entered in the roll against the name, or
(b)  an objection to the inclusion in the roll of his or her name or the name of another person, or
(c)  an objection to the inclusion in the roll of specified particulars entered against his or her name or the name of another person.
(2)  Within 7 days after the lodging of a claim for inclusion in, or of an objection to an entry in, a roll, the Electoral Commissioner or general manager:
(a)  is to decide whether the claim or objection is to be allowed or disallowed, and
(b)  as soon as practicable, is to make such entries in, or alterations to, the roll as give effect to the decision, and
(c)  is to serve notice of the decision on the claimant or objector and, in the case of an objection, on any other person to whom the objection relates.
(3)  A person dissatisfied with the decision of the Electoral Commissioner or general manager may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4)  The Electoral Commissioner or general manager is to make as soon as practicable such entries in the appropriate roll as are necessary to give effect to the decision on an application to the Civil and Administrative Tribunal.
(5)  Despite this section, the non-residential roll and the roll of occupiers and ratepaying lessees are not to be altered between the closing date for an election and the end of polling day.

304   Enrolment if qualified in more than one respect

(1)  A person may not, in respect of the same ward, be enrolled more than once in a roll of electors.
(2)  A person who is qualified for enrolment in respect of more than one ward of an area may be enrolled only in respect of the ward for which the person is qualified as a resident or, if the person is not so qualified:
(a)  the ward specified in a notice given by the person to the general manager before the closing date for the election, or
(b)  if no such notice is given, a ward chosen by the general manager.

305   Provisional voting

The regulations may prescribe circumstances in which a person is to be permitted to vote at an election under this Act where:
(a)  the person is not enrolled for the area or ward concerned, but claims to be entitled to be enrolled on the residential roll for that area, or
(b)  the person claims that the person’s name has been omitted from the roll for the area (for any reason), but claims he or she is entitled to vote at an election, or
(c)  there is other uncertainty as to a person’s entitlement to vote at an election (for example, the person claims the person’s name has been incorrectly marked off a roll at an election).

Division 3 Nominations and election

306   Nominations

(1)  A person who is not duly nominated is not eligible for election as a councillor, or for election by the electors of an area as mayor.
(2)  To be duly nominated for election as a councillor for an area, or for election as mayor of an area by the electors of an area, a person must be enrolled as an elector for the area, and must be qualified to hold that civic office, at the closing date for the election.
(3)  A person may not be nominated for election as a councillor for more than one ward.
(4)  A nomination is to be proposed to and made by the returning officer as prescribed by the regulations and may be withdrawn by the nominee as prescribed by the regulations.
(5)  A nomination is to be rejected if the returning officer has not been paid the deposit prescribed by the regulations for the nomination or (if none is prescribed) a deposit of 50 per cent of the deposit required to be deposited under the Parliamentary Electorates and Elections Act 1912 for the nomination of a candidate for election to the Legislative Assembly.
(5A)  However, if a group that comprises more than 5 candidates:
(a)  proposes the nomination of all members of the group, and pays the deposit for the nomination of all members of the group, at the same time, and
(b)  has lodged a claim under section 308A (2),
the amount of the deposit for each candidate included in the group is 5 times the deposit for one candidate divided by the number of candidates in that group.
(6)  If a returning officer rejects a proposed nomination and the nominated person applies in writing for an explanation of the rejection, the returning officer must provide the nominated person with a written explanation within 7 days.
(7)  A deposit may be refunded in accordance with the regulations.

307   Nomination where name omitted from roll

Despite section 306, a person whose nomination for election to a civic office would, but for this section, be rejected on the ground only that he or she is not enrolled as an elector for the area may be nominated if:
(a)  the name of the person has been omitted from the roll of electors mistakenly or accidentally, and
(b)  but for that omission the nomination would not have been rejected.

308   Candidate information sheets

(1)  A nomination of a candidate for election to a civic office is to be accompanied by a candidate information sheet in the form of a statutory declaration made by the candidate.
(2)  The regulations may make provision for the matters that are to be included in, or that may or may not be included in, a candidate information sheet. The regulations may not prohibit the inclusion in a candidate information sheet of matter relating to a candidate’s policies.
(3)  The returning officer is to make each candidate information sheet available for public inspection at any reasonable time during office hours at the office of the returning officer and at any other place determined by the returning officer.
(4)  An electoral official at each polling place is to ensure that a copy of each candidate information sheet is displayed at the polling place.

308A   Grouping of candidates

(1)  This section applies to an election in which there are 2 or more councillors to be elected.
(2)  Two or more candidates duly proposed for nomination for election may, before noon on the nomination day prescribed by the regulations, claim to have their names included in a group on the ballot-papers and in the order specified in the claim. The claim is to be lodged with the returning officer.
(3)  A claim under subsection (2) may also include a request for a group voting square for the group to appear on the ballot-papers to be used in the election concerned, but only if:
(a)  in the case of an area not divided into wards—the number of candidates in the group on the nomination day prescribed by the regulations is at least half the number of candidates to be elected, or
(b)  in the case of an area divided into wards—there are at least as many candidates in the group on the nomination day prescribed by the regulations as there are candidates to be elected.
(4)  A group voting square is to be printed on the ballot-papers above the names of the candidates in each group that has duly requested a group voting square under subsection (3), but only if more than one group has duly requested a group voting square.
(5)  An application under Part 7 for the name of a political party to be printed adjacent to the name of a candidate on the ballot-papers may include a further request for that name or a composite name to be printed on the ballot-papers adjacent to the candidates’ group voting square.

308B   Group voting—recording of votes

(1)  This section applies if a ballot-paper has group voting squares.
(2)  Instead of marking the separate voting squares for the candidates, the voter may record a vote:
(a)  by placing the number “1” in any one of the group voting squares, and
(b)  (if he or she wishes) by placing consecutive numbers (beginning with the number “2”) in any other of those group voting squares, in the order of his or her preference for the various groups of candidates.
(3)  The number “1” appearing in a group voting square for a group indicates:
(a)  that the voter’s first preference vote is for the first candidate in the group, and
(b)  that the voter’s subsequent preference votes are for the other candidates in the group in the order in which their names appear on the ballot-paper.
(4)  Subsequent numbers appearing in group voting squares for other groups indicate that the voter’s preferences (subsequent to those referred to in subsection (3)) are for the candidates in those groups:
(a)  in the order in which those groups are numbered by the voter, and
(b)  within each group, in the order in which the names of the candidates in that group appear on the ballot-paper.

308C   Group voting—marking of ballot-papers

(1)  If a voter records a vote on a ballot-paper by placing a mark in a group voting square but also indicates preferences for individual candidates, the following provisions apply:
(a)  if the indication of preferences for individual candidates would, if it stood alone, constitute a formal vote, that indication of preferences is taken to be the vote of the voter and the mark in the group voting square is to be disregarded,
(b)  if the indication of preferences for individual candidates would not, if it stood alone, constitute a formal vote, it is to be disregarded and the vote of the voter is to be taken to have been expressed by the mark in the group voting square.
(2)  A ballot-paper is not informal by reason only that the voter has recorded a vote by placing a cross or a tick in a group voting square and not placing any mark or writing in any other group voting square, but the ballot-paper is to be treated as if the cross or tick were the number “1”.
(3)  A ballot-paper is not informal by reason only that the voter has recorded a vote by placing the number “1” or a tick in a group voting square and placing a cross in (or a line through) all or some of the other group voting squares on the ballot-paper, but the ballot-paper is to be treated as if the marks in those other squares did not appear on the ballot-paper and any such tick were the number “1”.
(4)  A ballot-paper on which the voter has recorded a vote by placing in one group voting square the number “1” is not informal by reason only that:
(a)  the same preference (other than the first preference) is recorded on the ballot-paper for more than one group, but in that event the ballot-paper is to be treated as if those and any subsequent preferences had not been recorded, or
(b)  there is a break in the order of preferences for groups, but in that event the ballot-paper is to be treated as if any preference after the break had not been recorded, or
(c)  fewer preferences are recorded than there are candidates to be elected.
(5)  The ballot-papers for an election are not informal by reason only that they contain the name of a candidate whom a court has declared to be incapable of being elected at that election, but a preference for such a candidate (whether individually or as a member of a group) is to be disregarded, and (if necessary) subsequent preferences are to be renumbered accordingly.
Note. The regulations make further provision regarding the formality of ballot-papers.

308D   Group voting—regulations

The regulations may make provision for or with respect to the grouping of candidates, group voting squares and the matter to be printed on ballot-papers.

309   Contested elections

(1)  If the number of candidates nominated for election as councillors for a ward or an area is greater than the number required to be elected for the ward or area, the election is to be a contested election.
(2)  If there are two or more candidates for election by the electors of an area as mayor of the area, there is to be a contested election for the office.
(3)  If a candidate who is nominated for election to a civic office in respect of a ward or area dies before the day when the poll at a contested election closes, the election fails in respect of that civic office for the ward or area.

310   Conduct of contested elections

A contested election for a civic office is to be conducted as prescribed by the regulations.

310A   Postal votes

At any election, any postal vote must be accepted for further scrutiny if:
(a)  the postal vote is received by the returning officer before 6 pm on the first business day immediately following the close of the poll, and
(b)  the returning officer is satisfied that the voter has indicated, in accordance with the regulations, that the postal vote was completed before the close of the poll.

311   Uncontested elections

(1)  A candidate nominated for election as a councillor for a ward or area is, without a poll being held, taken to have been elected if the number of candidates nominated for election as councillors for the ward or area is no greater than the number of councillors required to be elected for the ward or area.
(2)  A candidate nominated for election by the electors of the area as the mayor of the area is, without a poll being held, taken to have been elected if he or she is the only nominee for election as the mayor.
(3)  A person holding civic office under this section without a poll being held is taken to have been elected:
(a)  on the day on which the poll would have been held, if the election were an ordinary election, or
(b)  on the day of nomination, if paragraph (a) does not apply.
(4)  If a candidate who is nominated for election to a civic office in respect of a ward or area dies before the day referred to in subsection (3), the election in respect of that civic office for that ward or area is taken to have failed and no candidate in that election can be taken to have been elected in respect of that civic office for that ward or area.

Division 4 Where residents fail to vote

312   Offence

A person whose name is on the residential roll in respect of a ward or area must vote at any contested election in the ward or area (other than an election of the mayor by the councillors) unless the person has a sufficient reason not to vote.

Maximum penalty: 1 penalty unit.

313   Check on double-voting and failure to vote

(1)  After the close of the poll at a contested election, the copies of the roll of electors used at the election are to be checked by the Electoral Commissioner in accordance with this section to determine:
(a)  which electors’ names (if any) have been marked more than once, and
(b)  which electors (if any) appear to have failed to vote.
(2)  In the case of an election administered by a general manager, the general manager must (within the period specified by the Electoral Commissioner) forward the copies of the roll of electors used at that election to the Electoral Commissioner for checking.
(3)  The Electoral Commissioner is, for each contested election, to prepare a list of the names of the persons on the residential roll who, although entitled to vote at the election, appear to have failed to vote and do not appear to have a sufficient reason for the failure.

314   Penalty notice to be issued for failure to vote

(1)  The Electoral Commissioner is to serve a penalty notice on each resident who is indicated on the list prepared under section 313 as appearing not to have a sufficient reason for failing to vote at an election.
(2)  A penalty notice is to be served within 3 months after the close of the poll at the election to which it relates and, if not served personally, is to be served by post at the address of the resident last known to the Electoral Commissioner.
(3)  A penalty notice is a notice in the form prescribed by the regulations to the effect that, if the resident does not desire to have the failure to vote dealt with by a court:
(a)  the Electoral Commissioner must be given, within a time stated in the notice, a sufficient reason for the failure to vote, or
(b)  a penalty of 0.5 penalty unit must be paid to the Electoral Commissioner.
(4)  If, within 28 days after service of the penalty notice, the Electoral Commissioner is given a sufficient reason for the failure to vote or the penalty is paid, the resident is not liable to any further proceedings for the offence to which the penalty notice relates.
(5)  If an insufficient reason for a failure to vote is given in response to a penalty notice, the Electoral Commissioner is to include a statement to that effect in any penalty reminder notice served under the Fines Act 1996 in relation to the penalty notice.
(6)  For the purposes of this section, it is a sufficient reason for a failure by a resident to vote if the Electoral Commissioner is satisfied that the resident:
(a)  is dead, or
(b)  was absent from the area on polling day, or
(c)  was ineligible to vote, or
(d)  had an honest belief that he or she had a religious duty to abstain from voting, or
(e)  (Repealed)
(f)  was unable to vote for any other reason acceptable to the Electoral Commissioner.
(7)  If a penalty notice is served, the Electoral Commissioner is to note on the list prepared under section 313, or on a separate list of the residents on whom penalty notices have been served, whether or not there has been a response to the penalty notice and, if there has been a response, whether a sufficient reason has been given, or a penalty paid, for the failure to vote.

315   Evidence in list of non-voters

(1)  It is evidence:
(a)  of service of a penalty notice on a resident, or
(b)  of a lack of response to a penalty notice served on a resident, or
(c)  that a reason was given for a failure by a resident to vote at an election, but the reason was insufficient,
if there is on a certified list a notation to that effect in relation to the resident.
(2)  For the purposes of this section, a certified list is a list that is certified by the Electoral Commissioner as (or as a copy of or extract from) the list prepared under section 313 or the separate list prepared under section 314 (7).

Division 5 Miscellaneous

316   Position on ballot-paper

The order of candidates’ names on ballot-papers is to be determined by a method of random selection (including by electronic means) in accordance with the regulations.

317   Validity of elections

(1)  An election is not invalid just because:
(a)  there was a formal defect or error in or relating to the election, if the election was held substantially in accordance with this Act, or
(b)  there was a defect in the appointment of the returning officer, or
(c)  the time for closing the poll for postal voting was extended with the approval of the Electoral Commissioner or returning officer (in relation to an election administered by the Electoral Commissioner) or the general manager or returning officer (in relation to an election administered by the general manager) conducting the election, or
(d)  on polling day the name of a political party, or the abbreviation of that name, as registered in the Local Government Register of Political Parties appears printed adjacent to the name of a candidate on the ballot-papers for the election, but between the time the candidate was endorsed by the party and the polling day the candidate has ceased to be so endorsed.
(2)  A proclamation of the Governor to the effect that a specified irregularity does not invalidate an election is conclusive as to the matter stated in the proclamation.

318   Lapsed or void election

(1)  If an election for a civic office is not held when it is due, fails or is later declared void:
(a)  the holder of the civic office at the time when the election should have been held or when the election failed (or, in the case of a void election, if there is no such holder, the candidate purporting to have been elected at the void election), holds the office as if duly elected until an election is held under paragraph (b), and
(b)  the returning officer is to hold another election as if a casual vacancy had occurred in the civic office.
(2)  An election held for the purposes of this section is as valid as it would have been if it had been held at the time originally appointed for the purpose.

Part 6A Postponement of elections

318A   Definition

In this Part:

election requirements of this Act means the requirements of Parts 4 and 5 with respect to the holding of an ordinary election referred to in section 287 or a by-election referred to in section 292.

318B   Postponement of elections

(1)  The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if:
(a)  the council is the subject of:
(i)  an investigation under section 430 or any other provision of this Act, or
(ii)  a public inquiry, or
(iii)  an investigation by an authority (as defined in the Dictionary at the end of this Act) under any Act, or
(b)  without limiting anything else in this subsection, a matter affecting the boundaries of the council’s area is under consideration by the Boundaries Commission (whether or not involving an inquiry by the Commission).
(2)  The latest date to which the election requirements of this Act may be postponed by an order under this section is:
(a)  the date occurring 12 months after the order is made, or
(b)  if the postponement is extended by a further order under this section, 31 December in the calendar year following that in which the first such order was made.
(3)  An order may be made under this section even though the election requirements of this Act are in operation with respect to an election for the council.
(4)  On the making of an order under this section:
(a)  the election requirements of this Act are suspended in relation to the council for the period specified in the order, including with respect to an election for which the election requirements of this Act were in operation when the order was made, but not with respect to an election held on or before the day on which the order is published, and
(b)  the retiring councillors continue in office (subject to this Act) until an election is held, and
(c)  anything already done, under or for the purposes of those requirements in relation to the council for an election that would (but for the making of the order) have been held during the suspension period, has no effect or operation, and
(d)  a person who is taken to have been elected under section 311 at an election that would (but for the making of the order) be held during the suspension period is taken not to have been elected.
(5)  The suspension ceases to have effect if the order is revoked under section 318C.
(6)  If the suspension ceases to have effect through the passage of time and not through revocation of the order, the provisions of section 318C (other than subsections (1) (a) and (3) (a)) apply as if the order had been revoked.
(7)  If while an order under this section is in force a casual vacancy occurs in the office of mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of mayor elected by the councillors.

318C   Revocation of postponement

(1)  The Minister may, by order published in the Gazette:
(a)  revoke a former order that has been made in relation to a council, and
(b)  if:
(i)  the day on which an election would (but for the former order) have been required to be held has passed, or
(ii)  the day on which an election is required to be held will occur within 3 months after the day on which the order is made,
appoint a day as the day on which the election is to be held.
(2)  The day appointed by the order as the day on which an election is to be held is to be a Saturday occurring not less than 3 months, and not more than 6 months, after the day on which the order is made.
(3)  On the making of an order under this section:
(a)  the suspension by the former order of the election requirements of this Act is terminated, and
(b)  an election is to be held in accordance with the election requirements of this Act:
(i)  on the day ascertained in accordance with those requirements, or
(ii)  if the order appoints a different day, on the day so appointed.
(4)  In this section, former order means an order under section 318B.

Part 7 Political parties

319   Local Government Register of Political Parties

(1)  The Electoral Commissioner is to keep a register containing the names of the parties registered under this Part and other particulars or documents required by this Part.
(2)  The register is to be called the Local Government Register of Political Parties.
(3)  The register is to be kept in the form and manner decided by the Electoral Commissioner.

320   Registration of political parties

(1)  The political parties registered under this Part are:
(a)  the political parties registered for the time being under Part 4A of the Parliamentary Electorates and Elections Act 1912, and
(b)  any other political parties registered for the time being for the purposes of this Act.
(2)  A party may be registered for the purposes of this Act in accordance with the procedure applicable under Part 4A of the Parliamentary Electorates and Elections Act 1912, subject to the following modifications of that Part:
(a)  references to an eligible party are to be read as references to an eligible local government party (as defined in subsection (3)),
(b)  references to Parliament are to be read as references to a council,
(c)  references to the names and addresses of 750 electors are to be read as references to the names, addresses and signatures of 100 electors,
(d)  references to the Register of Parties are to be read as references to the Local Government Register of Political Parties,
(e)  references to the issue of a writ for an election are to be read as references to the closing date for an election,
(f)  sections 66C, 66D (3), 66FA (2), 66H (3A), 66JA and 66N of that Act are to be disregarded,
(g)  the reference in section 66FA (1) (a) of that Act to Division 6B of Part 5 of that Act is a reference to section 321 of this Act,
(g1)  the reference in section 66FA (1) (b) of that Act to sections 79 and 81B of that Act is a reference to any regulations under this Act regarding a political party proposing a candidate for nomination,
(g2)  the reference in section 66FA (1) (c) of that Act to section 151G of that Act is a reference to any regulations under this Act regarding registration of electoral material,
(h)  such other modifications as are prescribed by the regulations.
(3)  For the purposes of subsection (2), an eligible local government party is a party:
(a)  that has at least 100 members, and
(b)  that is established on the basis of a written constitution (however expressed) that sets out the platform or objectives of the party.

321   Party endorsement on ballot-papers

(1)  The registered officer for a political party may apply to the returning officer to arrange for the name of the party as registered in the Local Government Register of Political Parties, or the abbreviation of the name as so registered, to be printed adjacent to the name of a candidate on the ballot-papers for an election to civic office, but only if the candidate has been endorsed for that election by the party.
(2)  A candidate at an election is taken to have been endorsed for the election by a political party registered in the Local Government Register of Political Parties only if:
(a)  the candidate is stated by the registered officer for the party to be so endorsed, or
(b)  the name of the candidate is included in a statement that is signed by the registered officer for the party, sets out the names of the candidates endorsed by the party for the election and is given to the returning officer before noon on the day for the nomination of candidates at the election, or
(c)  the returning officer is satisfied, after making such inquiries as the returning officer thinks appropriate, that the candidate is so endorsed.
(3)  A candidate for an election who has been endorsed by two or more political parties is taken to have been endorsed:
(a)  by the political party whose registered officer nominated the candidate, if the candidate was nominated by the registered officer, or
(b)  by the political party whose registered officer applied for the endorsement, if paragraph (a) does not apply, or
(c)  in any other case, by the political party specified by the candidate in a notice given to the returning officer.
(4)  An application under this section must be in writing signed by the applicant and delivered to the returning officer before noon on the day for the nomination of candidates at the election.
(5)  An application under this section may be withdrawn by the candidate by written notice to the returning officer before noon on the day for nomination.

322   Independent candidate on ballot-papers

(1)  A candidate for election to civic office may apply to the returning officer to arrange for the word “Independent” to be printed adjacent to the name of the candidate on the ballot-papers for the election.
(2)  The application is to be in writing signed by the applicant and given to the returning officer before noon on the day for the nomination of candidates at the election.
(3)  If an application is made under both this section and section 321 in relation to the same candidate, the application under section 321 is void and is to be disregarded.
(4)  An application under this section may be withdrawn by the candidate by written notice to the returning officer before noon on the day for nomination.

323   Printing of political party name on ballot-papers

(1)  The name of a political party is to be printed adjacent to the name of a candidate on the ballot-papers for an election to civic office if:
(a)  the candidate has been endorsed by the party as a candidate at the election, and
(b)  an application for the name of the party to be printed on the ballot-papers adjacent to the name of the candidate has been accepted by the returning officer.
(2)  The word “Independent” is to be printed adjacent to the name of a candidate for election to civic office if an application made by the candidate to have the word so printed has been accepted by the returning officer.

324   Form of political party name on ballot-papers

(1)  The name of a political party to be printed on ballot-papers under this Part is the name entered for the party in the Local Government Register of Political Parties or the abbreviated name so entered for the party if application was made for the printing of the abbreviated name.
(2)  The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates are to be in capital letters in type that is uniform in size and style for all of the political parties’ names or abbreviated names.

Part 8

325–328(Repealed)

Part 8A Political donations

328A   General manager to keep register of political donation disclosures

(1)  The general manager is required to keep a register of copies of current declarations of disclosures of political donations lodged with the New South Wales Electoral Commission by or on behalf of councillors of the council concerned (including in their capacity as candidates for election as councillors).
(2)  For the purposes of this section, current declarations of disclosures of political donations are declarations lodged under Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 in respect of the relevant disclosure period that includes the date of the last election (other than a by-election) and all subsequent relevant disclosure periods.
Note. Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 makes provision for disclosure by councillors and candidates for civic office (and parties registered in connection with local government elections) of political donations and electoral expenditure.

328B   Reference by general manager to Director-General of political donation matters

(1)  If the general manager reasonably suspects that a councillor has not complied with the provisions of the code of conduct under section 440 relating to the disclosure of political donations or the manner of dealing with any perceived conflict of interest in relation to political donations, the general manager is to refer the matter to the Director-General.
(2), (3)  (Repealed)

Part 9 Dismissal from civic office

329   Can the holder of a civic office be dismissed?

(1)  Any person may apply to the Civil and Administrative Tribunal for an order that a person be dismissed from civic office.
(2)  On any such application, the Tribunal may order the dismissal of a person from civic office:
(a)  if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or
(b)  if the person is disqualified from holding civic office.
(3)  Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.
(4)  If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied:
(a)  that the facts and circumstances giving rise to the disqualification are of a trifling character, and
(b)  that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing those acts.
(5)  Subsection (4) does not apply to a person who is disqualified from holding civic office by a decision of the Civil and Administrative Tribunal under section 482 or by a decision of the Governor under section 440B.
(6)  (Repealed)

330   (Repealed)

331   When does an order of dismissal take effect?

An order of dismissal made by the Tribunal takes effect:
(a)  if no appeal is made under the Civil and Administrative Tribunal Act 2013 against the order, at the end of the period during which such an appeal may be made, or
(b)  if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or
(c)  if, within that period, the person against whom the order is made serves on the general manager of the council concerned written notice of intention not to appeal against the order, when the notice is lodged.

Chapter 11 How are councils staffed?

Introduction. The Chapter provides for the employment of staff to assist councils to exercise their functions. A council should have sufficient and appropriately qualified staff for the efficient and effective management of its organisation.

The Chapter includes provision for the appointment by each council of a general manager and other senior staff and of a “public officer”. Some requirements concerning employment of staff are contained in other law (for example, industrial relations legislation).

Part 1 Organisation structure

332   Determination of structure

(1)  A council must determine:
•  an organisation structure
•  those positions within the organisation structure that are senior staff positions
•  the resources to be allocated towards the employment of staff.
(2)  A council may not determine a position to be a senior staff position unless:
(a)  the responsibilities, skills and accountabilities of the position are generally equivalent to those applicable to the Executive Band of the Local Government (State) Award, and
(b)  the total remuneration package payable with respect to the position is equal to or greater than the minimum remuneration package (within the meaning of Part 3A of the Statutory and Other Offices Remuneration Act 1975) payable with respect to senior executive office holders whose positions are graded Level 1 (General Management).
(3)  For the purposes of subsection (2) (b), the total remuneration package payable with respect to a position within a council’s organisation structure includes:
(a)  the total value of the salary component of the package, and
(b)  the total amount payable by the council by way of the employer’s contribution to any superannuation scheme to which the holder of the position may be a contributor, and
(c)  the total value of any non-cash benefits for which the holder of the position may elect under the package, and
(d)  the total amount payable by the council by way of fringe benefits tax for any such non-cash benefits.

333   Re-determination of structure

The organisation structure may be re-determined by the council from time to time. It must be re-determined within 12 months after any ordinary election of the council.

Part 2 The general manager and other senior staff

334   Appointment of general manager

(1)  A council must appoint a person to be its general manager. The person must not be a body corporate.
(2)  The position of general manager is a senior staff position.

335   Functions of general manager

(1)  The general manager is generally responsible for the efficient and effective operation of the council’s organisation and for ensuring the implementation, without undue delay, of decisions of the council.
(2)  The general manager has the following particular functions:
•  to assist the council in connection with the development and implementation of the community strategic plan and the council’s resourcing strategy, delivery program and operational plan and the preparation of its annual report and state of the environment report
•  the day-to-day management of the council
•  to exercise such of the functions of the council as are delegated by the council to the general manager
•  to appoint staff in accordance with an organisation structure and resources approved by the council
•  to direct and dismiss staff
•  to implement the council’s equal employment opportunity management plan.
(3)  The general manager has such other functions as may be conferred or imposed on the general manager by or under this or any other Act.

336   Filling of vacancy in position of general manager

(1)  If a vacancy occurs in the position of general manager, the council must immediately appoint a person under section 334 to the vacant position or appoint a person to act in the vacant position.
(2)  A vacancy occurs in the position of general manager if the general manager:
(a)  dies, or
(b)  completes the term of his or her contract and is not re-appointed, or
(c)  resigns from the position, or
(d)  becomes a mentally incapacitated person and is removed from the position by the council because of that mental incapacity, or
(e)  is sentenced to imprisonment, or
(f)  is removed from the position for breach of or under the terms of the general manager’s contract with the council.
(3)  A person may be removed from office under subsection (2) (d) only if, taking into account the person’s past training, qualifications and experience relevant to employment as a general manager, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her mental incapacity:
(a)  would be unable to carry out the inherent requirements of the position of general manager, or
(b)  would, in order to carry out those requirements, require services or facilities that are not required by persons who are not mentally incapacitated persons and the provision of which would impose an unjustifiable hardship (within the meaning of the Disability Discrimination Act 1992 of the Commonwealth) on the council.

337   Council to be consulted as to appointment and dismissal of senior staff

The general manager may appoint or dismiss senior staff only after consultation with the council.

338   Nature of contracts for senior staff

(1)  The general manager and other senior staff of a council are to be employed under contracts that are performance-based.
(2)  The term of a contract must not be less than 12 months or more than 5 years (including any option for renewal). A term that is less than 12 months is taken to be for 12 months and a term for more than 5 years is taken to be limited to 5 years.
(3)  Contracts may be renewed from time to time.
(4)  The Director-General may, by order in writing, approve one or more standard forms of contract for the employment of the general manager or other senior staff of a council.
(5)  A standard form of contract approved by the Director-General is not to include provisions relating to the level of remuneration or salary (including employment benefits) of the general manager or other senior staff of a council, performance-based requirements or the duration of the contract.
(6)  A council is not to employ a person to a position to which one or more standard forms of contract approved for the time being under this section applies or apply except under such a standard form of contract.
(7)  The council may include in an employment contract for the general manager or another member of the senior staff additional provisions to those contained in the standard form of contract but only if those provisions relate to any of the following:
(a)  the level of remuneration or salary (including employment benefits) of the person employed under the contract,
(b)  subject to subsections (1) and (2), performance-based requirements or the duration of the contract.
(8)  Despite subsection (6), the approval, amendment or substitution of a standard form of contract under this section does not affect any employment contract between a council and the general manager of the council or another member of the senior staff of the council if the employment contract was entered into before the approval, amendment or substitution of the standard form of contract.
(9)  However, subsection (6) does apply to the renewal of any such employment contract occurring after the standard form of contract is approved, amended or substituted and to all new contracts entered into after the standard form of contract is approved, amended or substituted.

339   Annual reporting of contracts for senior staff

The general manager must, at least once annually, report to the council on the contractual conditions of senior staff.

340   Industrial arbitration excluded

(1)  In this section, a reference to the employment of the general manager or another senior staff member is a reference to:
(a)  the appointment of, or failure to appoint, a person to the vacant position of general manager or to another vacant senior staff position, or
(b)  the removal, retirement, termination of employment or other cessation of office of the general manager or another senior staff member, or
(c)  the remuneration or conditions of employment of the general manager or another senior staff member.
(2)  The employment of the general manager or another senior staff member, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.
(3)  Subsection (2) applies whether or not any person has been appointed to the vacant position of general manager or another vacant senior staff position.
(4)  No award, agreement, contract determination or order made or taken to have been made or continued in force under the Industrial Relations Act 1996, whether made before or after the commencement of this section, has effect in relation to the employment of senior staff members.
(5)  No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to the position of general manager or to another senior staff position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.

341   Duty to report bankruptcy

(1)  If a person who is a senior staff member becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the person’s creditors, the person must:
(a)  immediately give notice of the bankruptcy, composition, arrangement or assignment to the general manager, and
(b)  provide the general manager, within the time specified by the general manager, with any further information concerning the cause of the bankruptcy or of the making of the composition, arrangement or assignment required by the general manager.
(2)  If the person is the general manager, subsection (1) applies as if references to the general manager were references to the council.

Part 3 The public officer

342   Appointment of the public officer

(1)  The general manager is to designate a member of staff as the public officer of the council.
(2)  The position of public officer may, but need not be, a senior staff position.

343   Functions of the public officer

(1)  The public officer:
•  may deal with requests from the public concerning the council’s affairs
•  has the responsibility of assisting people to gain access to public documents of the council
•  may receive submissions made to the council
•  may accept service of documents on behalf of the council
•  may represent the council in any legal or other proceedings
•  has such other functions as may be conferred or imposed on the public officer by the general manager or by or under this Act.
(2)  The public officer is subject to the direction of the general manager.

Part 4 Equal employment opportunity

344   Objects

(1)  The objects of this Part are:
(a)  to eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital or domestic status and disability in councils, and
(b)  to promote equal employment opportunity for women, members of racial minorities and persons with disabilities in councils.
(2)  In this section, disability has the same meaning as in the Disability Discrimination Act 1992 of the Commonwealth.
Note. The Disability Discrimination Act 1992 of the Commonwealth defines disability to include such things as loss of bodily or mental function, loss of a part of the body, malfunction, malformation or disfigurement of a part of the body and certain other conditions, disorders, illnesses and diseases. That Act makes it unlawful for an employer to discriminate against a person on the ground of the other person’s disability in certain contexts. These include in determining who should be offered employment (section 15 of that Act). Such discrimination is unlawful unless the person, because of his or her disability, would be unable to carry out the inherent requirements of the particular employment or would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

345   Preparation and implementation of EEO management plans

(1)  A council must prepare and implement an equal employment opportunity management plan in order to achieve the objects of this Part.
(2)  The plan is to include provisions relating to:
(a)  the devising of policies and programs by which the objects of this Part are to be achieved, and
(b)  the communication of those policies and programs to persons within the staff of the council, and
(c)  the collection and recording of appropriate information, and
(d)  the review of personnel practices within the council (including recruitment techniques, selection criteria, training and staff development programs, promotion and transfer policies and patterns, and conditions of service) with a view to the identification of any discriminatory practices, and
(e)  the setting of goals or targets, where these may reasonably be determined, against which the success of the plan in achieving the objects of this Part may be assessed, and
(f)  the means, other than those referred to in paragraph (e), of evaluating the policies and programs referred to in paragraph (a), and
(g)  the revision and amendment of the plan, and
(h)  the appointment of persons within the council to implement the provisions referred to in paragraphs (a)–(g).
(3)  An equal employment opportunity management plan may include provisions, other than those referred to in subsection (2), that are not inconsistent with the objects of this Part.
(4)  A council may, from time to time, amend its equal employment opportunity management plan.

346   Inconsistencies with the Anti-Discrimination Act 1977

(1)  The provisions of an equal employment opportunity management plan, to the extent of any inconsistency between those provisions and the provisions of the Anti-Discrimination Act 1977, prevail.
(2)  This section does not apply to or in respect of the provisions of a plan which are the subject of a reference under section 347 to the Anti-Discrimination Board or the Public Service Commissioner.
Note. This section adopts the principles in section 122K of the Anti-Discrimination Act 1977. Those principles are designed to ensure that full effect can be given to the objects of this Part.

347   References

(1)  Where the Minister is dissatisfied with any matter relating to the preparation, amendment or implementation of an equal employment opportunity management plan by a council or any failure or omission of a council with respect to the preparation, amendment or implementation of any such plan, the Minister may refer the matter to the Anti-Discrimination Board or the Public Service Commissioner.
(2)  The provisions of section 122N of the Anti-Discrimination Act 1977, and the succeeding provisions of Part 9A of that Act, apply to and in respect of a reference under this section to the Anti-Discrimination Board as if it were a reference under section 122M of that Act and as if the council were an authority within the meaning of that Part.
(3)  A reference in this section to a provision of Part 9A of the Anti-Discrimination Act 1977 is a reference to that provision as in force immediately before the repeal of that Part of that Act by the Government Sector Employment Act 2013.

Part 5 Other provisions concerning staff

348   Advertising of staff positions

(1)  When it is proposed to make an appointment to a position within the organisation structure of the council, the position must be advertised in a manner sufficient to enable suitably qualified persons to apply for the position.
(2)  If the position is a senior staff position, the requirement of this section is satisfied if the position is advertised at least twice in a daily newspaper circulating throughout the State.
(3)  This section does not apply to:
(a)  the re-appointment, under a new contract, of a senior staff member, or
(b)  the appointment of an employee if the term of employment is for:
(i)  not more than 12 months, or
(ii)  two or more periods that together are not more than 12 months in any period of 2 years.

349   Appointments to be on merit

(1)  When the decision is being made to appoint a person to a position:
(a)  only a person who has applied for appointment to the position may be selected, and
(b)  from among the applicants eligible for appointment, the applicant who has the greatest merit is to be selected.
(2)  The merit of the persons eligible for appointment to a position is to be determined according to:
(a)  the nature of the duties of the position, and
(b)  the abilities, qualifications, experience and standard of work performance of those persons relevant to those duties.
(3)  In determining the merit of a person eligible for appointment to a position, regard is to be had to the objects of Part 4 of this Chapter (see section 344).

350   Appointments to which secs 348 and 349 do not apply

Sections 348 and 349 do not apply to:
(a)  an appointment by way of demotion, or
(b)  an appointment by way of lateral transfer, unless the council decides that those sections are to apply to the appointment.

351   Temporary appointments

(1)  If a position (including a senior staff position) within the organisation structure of the council is vacant or the holder of such a position is suspended from duty, sick or absent:
(a)  the council, in the case of the general manager’s position, or
(b)  the general manager, in the case of any other position,
may appoint a person to the position temporarily.
(2)  A person who is appointed to a position temporarily may not continue in that position:
(a)  if the holder of the position is on parental leave—for a period of more than 24 months, or
(b)  in any other case—for a period of more than 12 months.

352   Independence of staff for certain purposes

(1)  A member of staff of a council is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the member.
(2)  This section does not prevent the council or the mayor from directing the general manager of the council to provide advice or a recommendation.

353   Other work

(1)  The general manager must not engage, for remuneration, in private employment or contract work outside the service of the council without the approval of the council.
(2)  A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member’s council duties unless he or she has notified the general manager in writing of the employment or work.
(3)  The general manager may prohibit a member of staff from engaging, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member’s council duties.
(4)  A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council if prohibited from doing so under subsection (3).

354   Restriction on appointment of a former mayor or councillor

(1)  A person who has held civic office in relation to a council must not be appointed to any paid position on the staff of the council within 6 months after ceasing to hold the office.
(2)  A purported appointment in contravention of this section is void.

354A   Ministerial approval for certain termination payments to senior staff

(1)  A council must not make a payment to the general manager or other senior staff member of the council in relation to his or her termination of employment (including termination on the ground of redundancy) without first obtaining the Minister’s approval to the payment.
(2)  The Minister may refuse to approve a payment under subsection (1) if the Minister is not satisfied the payment is appropriate.
(3)  A payment referred to in subsection (1) that is made without the Minister’s approval:
(a)  is to be repaid to the council, and
(b)  is a debt due to the council recoverable by the council or the Minister in any court of competent jurisdiction.
(4)  Subsection (1) does not apply to payments of a kind exempted from this section by the regulations.
(5)  To remove doubt, this section extends to:
(a)  a termination payment made under a contract and to an ex gratia termination payment, and
(b)  a termination payment made under a contract entered into before the commencement of this section.

Part 6 Arrangements for council staff affected by the constitution, amalgamation or alteration of council areas

354B   Definitions

(1)  In this Part:

boundary alteration means an alteration of the boundaries of one or more areas by or under a proclamation under Chapter 9.

existing staff member of a transferee council means, in relation to a staff transfer occurring in connection with a boundary alteration, a person who was a member of the staff of the transferee council immediately before the transfer day and who has not ceased to be a member of that staff.

Note. In the case of a staff transfer effected in connection with the amalgamation of areas under Chapter 9, no members of staff continue in the employment of the councils of the areas being amalgamated because all those areas are dissolved. The members of staff would become employees of the newly constituted council.

former council, in relation to a transferred staff member, means the council that employed the staff member immediately before the transfer day.

proposal means:

(a)  a proposal made under section 215 to constitute one or more areas, or
(b)  a proposal made under section 218E to amalgamate one or more areas, or
(c)  a proposal made under section 218E to alter the boundaries of one of more areas.

proposal period means (subject to subsection (2)) the period:

(a)  starting on the day the proposal is made, and
(b)  ending on the following day:
(i)  if the Minister decides not to proceed with the proposal—the day that decision is made under section 215 or 218E,
(ii)  if the Minister refers the proposal to the Boundaries Commission or the Director-General but decides to decline to recommend to the Governor that the proposal be implemented—the day that decision is made,
(iii)  if the Minister recommends to the Governor that the proposal be implemented—immediately before the date specified in the proclamation implementing the proposal.

remaining staff member of a transferor council means, in relation to a staff transfer occurring in connection with a boundary alteration, a person who was a member of the staff of the transferor council immediately before the transfer day and who has not ceased to be a member of that staff.

Note. In the case of a staff transfer effected in connection with the amalgamation of areas under Chapter 9, no members of staff continue in the employment of the councils of the areas being amalgamated because all those areas are dissolved. The members of staff would become employees of the newly constituted council.

rural centre means a centre of population of 5,000 people or fewer, and includes a geographical area that is prescribed, or is of a kind prescribed, by regulations in force for the purposes of this definition as being a rural centre.

staff transfer means a transfer of staff from the employment of one council to the employment of another council by or under a proclamation under Chapter 9.

transfer day, in relation to a staff transfer, means the day on which the staff concerned were transferred from the employment of one council to the employment of another council.

transferee council, in relation to a staff transfer, means the council into whose employment the staff concerned were transferred on the transfer day.

transferor council, in relation to a staff transfer, means the council from whose employment the staff concerned were transferred on the transfer day.

transferred staff member means a member of the staff of a council who is transferred to the employment of another council by or under a proclamation under Chapter 9.

work base means the office, depot or other place of work at or from which any staff work.

(2)  The Minister may, by notice in writing to a council, extend the proposal period in relation to that council by determining an earlier date for the start of the period than the date the proposal is made under section 215 or 218E.

354C   No forced redundancy of affected staff members during proposal period

The employment of a member of staff of a council that is affected by a proposal (other than of a senior staff member) must not be terminated, without the staff member’s agreement, during the proposal period on the ground of redundancy.

354D   Preservation of entitlements of staff members

(1)  If a staff transfer occurs, the employment of:
(a)  a transferred staff member, and
(b)  in the case of a boundary alteration:
(i)  a remaining staff member of the transferor council, and
(ii)  an existing staff member of the transferee council,
other than a senior staff member, continues on the same terms and conditions that applied to the staff member immediately before the transfer day, subject to section 354E.
(2)  Subsection (1) applies until other provision is duly made under any Act or law.
(3)  Neither the contract of employment nor the period of employment of a transferred staff member is taken to have been broken by the transfer for the purposes of any law, award or agreement relating to the employment of that staff member.
(4)  A transferred staff member is not entitled to receive any payment or other benefit merely because the staff member ceases to be a staff member of the former council.
(5)  The transfer of a transferred staff member does not affect any accrued rights the staff member had immediately before the transfer, including in relation to recreation leave, sick leave, long service leave and superannuation, but does not entitle the staff member to claim dual benefits of the same kind for the same period of service.

354E   Certain increases or decreases in staff entitlements during proposal period not binding on transferee council without approval

(1)  This section applies to a determination of the terms and conditions of employment of staff members of a council that is made during the proposal period, and extends to any such determination made in an industrial agreement with or on behalf of the staff members, in an employment contract with a staff member or in an employment policy of the council.
(2)  After the transfer day:
(a)  the transferee council is not bound by any such determination, and
(b)  any such determination is to be disregarded for the purposes of section 354D (1),
unless the determination has been approved by the Minister under this section or the approval of the Minister is not required under this section.
(3)  If an application is made to the Minister for approval of a determination to which this section applies, the Minister may refuse to approve the determination only if the Minister is satisfied that the determination arises from or is in anticipation of the proposal and would result in an unjustifiable increase or decrease in the obligations of the transferee council in relation to transferred staff members.
(4)  A determination to which this section applies is not required to be approved by the Minister if:
(a)  it complies with the requirements of regulations made for the purposes of this section, or
(b)  the Minister determines in writing that approval is not required.

354F   No forced redundancy of non-senior staff members for 3 years after transfer

If a staff transfer occurs, the employment of:
(a)  a transferred staff member, and
(b)  in the case of a boundary alteration:
(i)  a remaining staff member of the transferor council, and
(ii)  an existing staff member of the transferee council,
other than a senior staff member, must not be terminated, without the staff member’s agreement, within 3 years after the transfer day on the ground of redundancy arising from the staff transfer.

354G   Lateral transfer of non-senior staff members

(1)  This section applies if either:
(a)  the following subparagraphs apply:
(i)  a staff transfer occurs in connection with the constitution of a new area, whether as a result of the amalgamation of two or more areas or otherwise, and
(ii)  within 3 years after the transfer day, the general manager proposes to make an appointment to a position within the organisational structure of the council (the council), other than a senior staff position, and
(iii)  a transferred staff member (other than a senior staff member) was, immediately before the transfer day, performing substantially the same duties for the staff member’s former council as are required to be performed in the position to be filled, or
(b)  the following subparagraphs apply:
(i)  a staff transfer occurs in connection with a boundary alteration, and
(ii)  within 3 years after the transfer day, the general manager of a council (the council) affected by the boundary alteration proposes to make an appointment to a position within the organisational structure of the council, other than a senior staff position, and
(iii)  a staff member (other than a senior staff member) of the council was, immediately before the transfer day, performing substantially the same duties for either or any of the affected councils as are required to be performed in the position to be filled.
(2)  The council:
(a)  must notify its staff members of the position and give its staff members a reasonable opportunity to apply for the position, and
(b)  must not externally advertise the position.
(3)  A person who:
(a)  applies for appointment to a position referred to in this section, and
(b)  is employed by the council at the time of making the application, and
(c)  is a person referred to in subsection (1) (a) (iii) or (b) (iii), as the case requires,
must be considered for appointment to the position in preference to any other applicant for the position who is not such a person.
(4)  If there is more than one person referred to in subsection (3) who is eligible for appointment to a position, the applicant who has the greatest merit, determined in accordance with section 349 (2) and (3), is to be selected.
(5)  Subject to subsection (4), sections 348 and 349 do not apply to an appointment to a position referred to in this section and the Council may not decide, under section 350 (b), that those sections apply to the appointment.

354H   External advertising not required in certain circumstances

(1)  This section applies if either:
(a)  the following subparagraphs apply:
(i)  a staff transfer occurs in connection with the constitution of a new area, whether as a result of the amalgamation of two or more areas or otherwise, and
(ii)  within 3 years after the transfer day, the general manager proposes to make an appointment to a position within the organisational structure of the council (the council), other than a senior staff position, and
(iii)  the general manager is satisfied that one or more of the transferred staff members (other than a senior staff member) are suitably qualified for the position, and
(iv)  section 354G does not apply with respect to the position, or
(b)  the following subparagraphs apply:
(i)  a staff transfer occurs in connection with a boundary alteration, and
(ii)  within 3 years after the transfer day, the general manager of a council (the council) affected by the boundary alteration proposes to make an appointment to a position within the organisational structure of the council, other than a senior staff position, and
(iii)  the general manager is satisfied that one or more of the staff members (other than a senior staff member) of the council who were, immediately before the transfer day, members of the staff of either or any of the affected councils are suitably qualified for the position, and
(iv)  section 354G does not apply with respect to the position.
(2)  The council:
(a)  must notify its staff members of the position and give its staff members a reasonable opportunity to apply for the position, and
(b)  must not externally advertise the position.
(3)  Section 348 does not apply to an appointment to a position referred to in this section.

354I   Limitations on transfer of work base of non-senior staff

(1)  This section applies, where a staff transfer occurs, to:
(a)  a transferred staff member, and
(b)  in the case of a boundary alteration:
(i)  a remaining staff member of the transferor council, and
(ii)  an existing staff member of the transferee council,
other than a senior staff member.
(2)  The staff member must not be required by the council employing the staff member to be based within 3 years after the transfer day at a work base located:
(a)  in a case where the staff member is a transferred staff member—outside the boundaries of the area of his or her former council as they existed immediately before the transfer day, or
(b)  in a case where the staff member is a remaining staff member of the transferor council—outside the boundaries of the area of the transferor council as they existed immediately before the transfer day, or
(c)  in a case where the staff member is an existing staff member of the transferee council—outside the boundaries of the area of the transferee council as they existed immediately before the transfer day,
unless the staff member gives his or her written consent to the change of work base or such a requirement would not cause the staff member to suffer unreasonable hardship because of the distance required to travel to the proposed work base.

Chapter 12 How do councils operate?

Introduction. This Chapter describes the ways in which a council carries out its functions and makes decisions.

The Chapter enables each council to adopt a code of meeting practice after giving public notice of a draft code. The Chapter provides for the basic matters concerning council meetings (frequency of meetings, notice of meetings, quorum, voting, rescission motions, committees etc).

The Chapter enables a council to delegate its functions, other than those functions the delegation of which is expressly prohibited. Functions that may not be delegated include the making of a rate or charge, the borrowing of money, the compulsory acquisition of land, the adoption of financial statements and the classification of public land as operational land. Functions may be delegated to the general manager and to specified persons and bodies but may not be delegated directly by the council to council employees other than the general manager.

The Chapter requires councils to have public liability and professional liability insurance. The Chapter also makes provision for the constitution, functions, operation and dissolution of county councils.

Part 1 General

355   How does a council exercise its functions?

A function of a council may, subject to this Chapter, be exercised:
(a)  by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or
(b)  by a committee of the council, or
(c)  partly or jointly by the council and another person or persons, or
(d)  jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or
(e)  by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member).

356   Can a council financially assist others?

(1)  A council may, in accordance with a resolution of the council, contribute money or otherwise grant financial assistance to persons for the purpose of exercising its functions.
(2)  A proposed recipient who acts for private gain is not ineligible to be granted financial assistance but must not receive any benefit under this section until at least 28 days’ public notice of the council’s proposal to pass the necessary resolution has been given.
(3)  However, public notice is not required if:
(a)  the financial assistance is part of a specific program, and
(b)  the program’s details have been included in the council’s draft operational plan for the year in which the financial assistance is proposed to be given, and
(c)  the program’s proposed budget for that year does not exceed 5 per cent of the council’s proposed income from the ordinary rates levied for that year, and
(d)  the program applies uniformly to all persons within the council’s area or to a significant group of persons within the area.
(4)  Public notice is also not required if the financial assistance is part of a program of graffiti removal work.
Note. Part 4 of the Graffiti Control Act 2008 deals with graffiti removal work.

357   Can a council exercise its functions only within its area?

A council may exercise its functions within its area or outside its area, but may exercise its regulatory functions under Chapter 7 only within its area.

358   Restrictions on formation of corporations and other entities

(1)  A council must not form or participate in the formation of a corporation or other entity, or acquire a controlling interest in a corporation or other entity, except:
(a)  with the consent of the Minister and subject to such conditions, if any, as the Minister may specify, or
(b)  as provided by this Act.
(2)  This section does not prevent a council from being a member of a co-operative society or a company limited by guarantee and licensed not to use the word “Limited” in its name.
(3)  In applying for the Minister’s consent under subsection (1) (a), the council is required to demonstrate, to the Minister’s satisfaction, that the formation of, or the acquisition of the controlling interest in, the corporation or entity is in the public interest.
(3A)  The regulations may make provision for or with respect to the matters to be taken into account by the Minister in deciding whether to grant consent under this section and the conditions that may or must be specified by the Minister under this section.
(4)  In this section, entity means any partnership, trust, joint venture, syndicate or other body (whether or not incorporated), but does not include any such entity that is of a class prescribed by the regulations as not being within this definition.

359   Can a council act as an agent?

A council may act as the agent of another person or of the Crown, subject to the regulations.
 

How can a council exercise its functions?

Part 2 How are decisions made?

Division 1 Code of meeting practice

360   Conduct of meetings of councils and committees

(1)  The regulations may make provision with respect to the conduct of meetings of councils and committees of councils of which all the members are councillors.
(2)  A council may adopt a code of meeting practice that incorporates the regulations made for the purposes of this section and supplements those regulations with provisions that are not inconsistent with them.
(3)  A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it.

361   Preparation, public notice and exhibition of draft code

(1)  Before adopting a code of meeting practice, a council must prepare a draft code.
(2)  The council must give public notice of the draft code after it is prepared.
(3)  The period of public exhibition must not be less than 28 days.
(4)  The public notice must also specify a period of not less than 42 days after the date on which the draft code is placed on public exhibition during which submissions may be made to the council.
(5)  The council must publicly exhibit the draft code in accordance with its notice.

362   Adoption of draft code

(1)  After considering all submissions received by it concerning the draft code, the council may decide:
(a)  to amend those provisions of its draft code that supplement the regulations made for the purposes of section 360, or
(b)  to adopt the draft code as its code of meeting practice.
(2)  If the council decides to amend its draft code, it may publicly exhibit the amended draft in accordance with this Division or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft code without public exhibition as its code of meeting practice.

363   Amendment of the code

A council may amend a code adopted under this Part by means only of a code so adopted.

364   Public availability of the code

(1)  The code of meeting practice adopted under this Division by a council must be available for public inspection free of charge at the office of the council during ordinary office hours.
(2)  Copies of the code must be available free of charge or, if the council determines, on payment of the approved fee.

Division 2 Other provisions concerning council meetings

365   How often does the council meet?

The council is required to meet at least 10 times each year, each time in a different month.

366   Calling of extraordinary meeting on request by councillors

If the mayor receives a request in writing signed by at least 2 councillors, the mayor must call an extraordinary meeting of the council to be held as soon as practicable but in any event within 14 days after receipt of the request.

367   Notice of meetings

(1)  The general manager of a council must send to each councillor, at least 3 days before each meeting of the council, a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting.
(2)  Notice of less than 3 days may be given of an extraordinary meeting called in an emergency.
(3)  A notice under this section and the agenda for, and the business papers relating to, the meeting may be given to a councillor in electronic form but only if all councillors have facilities to access the notice, agenda and business papers in that form.

368   What is the quorum for a meeting?

(1)  The quorum for a meeting of the council is a majority of the councillors of the council who hold office for the time being and are not suspended from office.
(2)  This section does not apply if the quorum is required to be determined in accordance with directions of the Minister in a performance improvement order issued in respect of the council.

369   Who presides at meetings of the council?

(1)  The mayor or, at the request of or in the absence of the mayor, the deputy mayor (if any) presides at meetings of the council.
(2)  If the mayor and the deputy mayor (if any) are absent, a councillor elected to chair the meeting by the councillors present presides at a meeting of the council.

370   What are the voting entitlements of councillors?

(1)  Each councillor is entitled to one vote.
(2)  However, the person presiding at a meeting of the council has, in the event of an equality of votes, a second or casting vote.

371   What constitutes a decision of the council?

A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council.

372   Rescinding or altering resolutions

(1)  A resolution passed by a council may not be altered or rescinded except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council’s code of meeting practice.
(2)  If notice of motion to rescind a resolution is given at the meeting at which the resolution is carried, the resolution must not be carried into effect until the motion of rescission has been dealt with.
(3)  If a motion has been negatived by a council, a motion having the same effect must not be considered unless notice of it has been duly given in accordance with the council’s code of meeting practice.
(4)  A notice of motion to alter or rescind a resolution, and a notice of motion which has the same effect as a motion which has been negatived by the council, must be signed by 3 councillors if less than 3 months has elapsed since the resolution was passed, or the motion was negatived, as the case may be.
(5)  If a motion to alter or rescind a resolution has been negatived, or if a motion which has the same effect as a previously negatived motion, is negatived, no similar motion may be brought forward within 3 months. This subsection may not be evaded by substituting a motion differently worded, but in principle the same.
(6)  A motion to which this section applies may be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.
(7)  The provisions of this section concerning negatived motions do not apply to motions of adjournment.

373   Committee of council

A council may resolve itself into a committee to consider any matter before the council.

374   Certain circumstances do not invalidate council decisions

Proceedings at a meeting of a council or a council committee are not invalidated because of:
(a)  a vacancy in a civic office, or
(b)  a failure to give notice of the meeting to any councillor or committee member, or
(c)  any defect in the election or appointment of a councillor or committee member, or
(d)  a failure of a councillor or a committee member to disclose a pecuniary interest, or to refrain from the consideration or discussion of, or vote on, the relevant matter, at a council or committee meeting in accordance with section 451, or
(e)  a failure to comply with the code of meeting practice.

375   Minutes

(1)  The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council.
(2)  The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting.

375A   Recording of voting on planning matters

(1)  In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:
(a)  including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but
(b)  not including the making of an order under Division 2A of Part 6 of that Act.
(2)  The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.
(3)  For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.
(4)  Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.
(5)  This section extends to a meeting that is closed to the public.

376   Attendance of general manager at meetings

(1)  The general manager is entitled to attend, but not to vote at, a meeting of the council or a meeting of a committee of the council of which all the members are councillors.
(2)  The general manager is entitled to attend a meeting of any other committee of the council and may, if a member of the committee, exercise a vote.
(3)  However, the general manager may be excluded from a meeting of the council or a committee while the council or committee deals with a matter relating to the standard of performance of the general manager or the terms of the employment of the general manager.

Part 3 Delegation of functions

377   General power of the council to delegate

(1)  A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council, other than the following:
(a)  the appointment of a general manager,
(b)  the making of a rate,
(c)  a determination under section 549 as to the levying of a rate,
(d)  the making of a charge,
(e)  the fixing of a fee,
(f)  the borrowing of money,
(g)  the voting of money for expenditure on its works, services or operations,
(h)  the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment),
(i)  the acceptance of tenders which are required under this Act to be invited by the council,
(j)  the adoption of an operational plan under section 405,
(k)  the adoption of a financial statement included in an annual financial report,
(l)  a decision to classify or reclassify public land under Division 1 of Part 2 of Chapter 6,
(m)  the fixing of an amount or rate for the carrying out by the council of work on private land,
(n)  the decision to carry out work on private land for an amount that is less than the amount or rate fixed by the council for the carrying out of any such work,
(o)  the review of a determination made by the council, and not by a delegate of the council, of an application for approval or an application that may be reviewed under section 82A of the Environmental Planning and Assessment Act 1979,
(p)  the power of the council to authorise the use of reasonable force for the purpose of gaining entry to premises under section 194,
(q)  a decision under section 356 to contribute money or otherwise grant financial assistance to persons,
(r)  a decision under section 234 to grant leave of absence to the holder of a civic office,
(s)  the making of an application, or the giving of a notice, to the Governor or Minister,
(t)  this power of delegation,
(u)  any function under this or any other Act that is expressly required to be exercised by resolution of the council.
(2)  A council may, by resolution, sub-delegate to the general manager or any other person or body (not including another employee of the council) any function delegated to the council by the Director-General except as provided by the instrument of delegation to the council.

378   Delegations by the general manager

(1)  The general manager may delegate any of the functions of the general manager, other than this power of delegation.
(2)  The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council).
(3)  Subsection (2) extends to a function sub-delegated to the general manager by the council under section 377 (2).

379   Delegation of regulatory functions

(1)  A regulatory function of a council under Chapter 7 must not be delegated or sub-delegated to a person or body other than:
(a)  a committee of the council of which all the members are councillors or of which all the members are either councillors or employees of the council, or
(b)  an employee of the council, or
(c)  a county council.
(2)  A regulatory function of a county council under Chapter 7 must not be delegated or sub-delegated to a person or body other than:
(a)  a committee of the county council of which all the members are members of the county council or of which all the members are either members of the county council or employees of the county council, or
(b)  an employee of the county council, or
(c)  a council.
(3)  However, if:
(a)  a regulatory function is delegated to a county council, the function may be delegated to the general manager and by the general manager to an employee of the county council, or
(b)  a regulatory function is delegated to a council, the function may be delegated to the general manager and by the general manager to an employee of the council.

380   Review of delegations

Each council must review all its delegations during the first 12 months of each term of office.

381   Exercise of functions conferred or imposed on council employees under other Acts

(1)  If, under any other Act, a function is conferred or imposed on an employee of a council or on the mayor or a councillor of a council, otherwise than by delegation in accordance with this section, the function is taken to be conferred or imposed on the council.
(2)  Such a function may be delegated by the council in accordance with this Part.
(3)  A person must not, under any other Act, delegate a function to:
•  the general manager, except with the approval of the council
•  an employee of the council, except with the approval of the council and the general manager.

Part 4 Insurance

382   Insurance against liability

(1)  A council must make arrangements for its adequate insurance against public liability and professional liability.
(2)  The regulations may make provision with respect to:
•  arrangements for insurance
•  minimum amounts of insurance
•  risk management
•  claims management
•  the keeping of records concerning insurance
•  other matters concerning insurance.

Part 5 County councils

383   Proposal to establish or dissolve a county council or amend its constitution

(1)  A council, a county council, a public authority or the Director-General may make a proposal to the Minister to establish or dissolve a county council or to amend the constitution of a county council.
(2)  The Minister may propose to establish or dissolve a county council or to amend the constitution of a county council.

384   Public notice to be given of a proposal

The Minister must give at least 28 days’ public notice of a proposal made to the Minister that the Minister decides to proceed with or of a proposal initiated by the Minister.

385   Making of representations

Within the period of public notice, representations concerning the proposal may be made to the Minister by anyone affected by the proposal.

386   Minister’s recommendation concerning the proposal

After considering all representations received concerning the proposal, the Minister may recommend to the Governor that the proposal be implemented, with or without modifications, or may decline to recommend that the proposal be implemented.

387   Formation of county councils

(1)  The Governor may, by proclamation, establish county councils for the purposes of this Act.
(2)  A proclamation under this section must contain the following particulars:
(a)  the name of the county council,
(b)  a description of the county council’s area of operations,
(b1)  the name of each council (referred to in this Part as a constituent council) whose area lies wholly or partly within the county council’s area of operations,
(c)  the number of persons to be elected by each constituent council to the county council’s governing body,
(d)  a description of the county council’s functions.
(3)  A proclamation under this section conferring functions on a county council as to the control of noxious weeds on land is to be made only with the concurrence of the Minister administering the Noxious Weeds Act 1993.

388   Legal status of county councils

(1)  A proclamation establishing a county council operates to constitute the county council as a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
(2)  A county council is not a body corporate (including a corporation).
(3)  A county council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).
(4)  A law of the State applies to and in respect of a county council in the same way as it applies to and in respect of a body corporate (including a corporation).

389   What is a county council’s name?

The name of a county council is to be “X County Council”, where “X” is the name specified by the proclamation.

390   Who comprise the governing body?

(1)  A county council must have a governing body elected by its constituent councils.
(2)  Provisions concerning the membership of a county council’s governing body are to be as prescribed by the proclamation establishing the county council.
(3)  A member of a county council is to be elected from among the councillors of the constituent councils in accordance with the regulations.
(4)  The governing body of a county council is responsible for managing the affairs of the county council.

391   The chairperson

(1)  The chairperson of a county council is the person elected to the office of chairperson by the members of the county council from among their number.
(2)  The chairperson holds office for one year, subject to this Act.
(3)  The office of chairperson:
(a)  commences on the day the person elected to the office is declared to be so elected, and
(b)  becomes vacant when the person’s successor is declared to be elected to the office, or on the occurrence of a casual vacancy in the office.

391A   What are the functions of the chairperson?

The role of the chairperson of a county council is:
(a)  to preside at meetings of the county council, and
(b)  to exercise such other functions of the county council as the county council determines.

392   Vacancy in office of member

(1)  A member of a county council vacates that office on ceasing to be a councillor of a constituent council.
(2)  This section does not limit the other circumstances in which a member of a county council vacates that office.

393   Area of operations of county council

The area of operations of a county council may, in accordance with a proclamation made for the purposes of this Part, comprise the whole or any part of one or more local government areas.

394   Functions of county council

(1)  The functions of a county council may, in accordance with a proclamation made for the purposes of this Part, comprise any one or more of the functions of a council under this or any other Act.
(2)  A council may not undertake a function conferred on a county council whose area of operations includes the whole or any part of the council’s area, subject to the regulations or a proclamation made for the purposes of this Part.
(3)  Subsection (2) does not prevent a council from exercising a function delegated to it by a county council.

395   General manager of county council

(1)  A county council must employ a general manager.
(2)  The general manager of a county council has the same functions in relation to the county council as the general manager of a council has in relation to the council.

396   How often does a county council meet?

A county council is required to meet at least 4 times each year.

397   Amendment and dissolution of county councils

(1)  The Governor may, by proclamation, amend or revoke a proclamation in force under section 387 for the purpose of amending the constitution of, or of dissolving, a county council.
(2)  A proclamation for the purpose of amending the constitution of a county council:
(a)  may change the name of the county council, or
(b)  may vary the county council’s area of operations, or
(c)  may vary the number of persons who comprise the county council’s governing body, or
(c1)  may vary the number of persons to be elected by each constituent council to the county council’s governing body, or
(d)  may vary the county council’s functions.

398   Facilitating provisions of proclamations

A proclamation of the Governor for the purposes of this Part may include provisions of the same kind as are referred to in section 213.

399   Making of financial contributions by constituent councils

The regulations may make provision for or with respect to the making of financial contributions to a county council by the constituent councils, including the following:
•  the purposes for which contributions may be made
•  the circumstances in which contributions may be required
•  the assessment of contributions
•  the payment of contributions
•  the recovery of contributions.

400   Application of Act to county councils

(1)  This Act (except Part 1 and Divisions 1 and 2 of Part 2 of Chapter 9, Chapter 10, section 365 and the provisions of Chapter 15 concerning the making and levying of ordinary rates) applies:
(a)  to county councils in the same way as it applies to councils, and
(b)  to the members of county councils in the same way as it applies to the councillors of councils,
with such exceptions and modifications (if any) as the regulations may provide.
(2)  In the application of this Act to county councils and members of county councils:
(a)  a reference to the mayor of a council includes a reference to the chairperson of a county council, and
(b)  a reference to mayoral office includes a reference to the office of the chairperson of a county council, and
(c)  a reference to a councillor includes a reference to a member of a county council.

400AA   Special provisions relating to Cudgegong (Abattoir) County Council

Schedule 9 has effect.

400A   (Repealed)

Part 6 Public-private partnerships

Division 1 Preliminary

400B   Definitions

(1)  For the purposes of this Act, a public-private partnership means an arrangement:
(a)  between a council and a private person to provide public infrastructure or facilities (being infrastructure or facilities in respect of which the council has an interest, liability or responsibility under the arrangement), and
(b)  in which the public infrastructure or facilities are provided in part or in whole through private sector financing, ownership or control,
but does not include any such arrangement if it is of a class that has been excluded from the operation of this Part by the regulations.
(1A)  For the purposes of subsection (1), the provision of public infrastructure or facilities includes the delivery of services during the carrying out of any project under the public-private partnership.
(2)  In this Part:

arrangement includes a contract or understanding (whether or not involving the formation of an entity).

entity means any partnership, trust, corporation, joint venture, syndicate or other body (whether or not incorporated).

PPP guidelines means the guidelines in force from time to time under section 400C.

private person means any person other than:

(a)  the Government (including the State, the Crown and a Minister of the Crown), or
(b)  a public or local authority (including a council or a State owned corporation), or
(c)  a public sector employee or other person or body acting in an official capacity on behalf of the Government or a public or local authority.

relevant council, in relation to public-private partnership or proposed public-private partnership, means the council that has entered into, or is proposing to enter into, the partnership.

significant project means:

(a)  any project with an estimated total cost of more than $50 million or such other amount as may be prescribed by the regulations, or
(b)  any project in respect of which the relevant council’s financial contribution, or its equity position, amounts to 25% or more of the council’s annual revenue that is lawfully available for spending on facilities or services of the kind to which the project relates.

(3)  In determining a relevant council’s financial contribution or equity position in relation to a project for the purposes of this Part, all elements of the project that the council provides are to be taken into account, including land value, the provision of non-monetary goods and services and any costs associated with the council’s contractual liability in the event of the council incurring a loss under the project.
(4)  For the purposes of this Part, a project under a public-private partnership that is carried out in stages is to be treated as a single project. The PPP guidelines may also specify other circumstances in which related projects carried out under a public-private partnership are to be treated as a single project for the purposes of this Part.

400C   Guidelines to be followed by councils in relation to public-private partnerships

(1)  The Director-General may from time to time issue guidelines requiring specified procedures and processes to be followed by councils in relation to entering into, and carrying out projects under, public-private partnerships.
(2)  Without limitation, the PPP guidelines may contain provisions requiring:
(a)  feasibility and risk assessment, and
(b)  the identification of appropriate governance and administrative arrangements (including appropriate management structures and auditing requirements), and
(c)  the undertaking of on-going risk management measures, and
(d)  due diligence in the carrying out of projects under public-private partnerships.

400D   Ancillary provisions relating to PPP guidelines

(1)  The PPP guidelines are to be made available to councils in such manner as the Director-General thinks appropriate.
(2)  The Director-General may from time to time amend or replace the PPP guidelines.

Division 2 Restrictions relating to public-private partnerships

400E   General requirements

(1)  A council must not:
(a)  enter into a public-private partnership, or
(b)  carry out any project under a public-private partnership,
except in accordance with this Part.
(2)  Without limiting subsection (1), a council is required to comply with the PPP guidelines at all times while carrying out a project under a public-private partnership.

400F   Council to provide assessment of PPP project to Director-General

(1)  A council must not enter into a public-private partnership unless the council has provided the Director-General with an assessment of the project to be carried out under the partnership.
(2)  In providing such an assessment, the general manager of the council is required to certify that it has been prepared in accordance with the PPP guidelines.
(3)  If:
(a)  the project to be carried out under the public-private partnership is a significant project, or
(b)  the Director-General is of the opinion, having regard to the criteria specified in the PPP guidelines, that the project has a high risk,
the Director-General is to advise the council that the project is required to be referred to the Project Review Committee for review.
(4)  If the Director-General advises the council that the project is not required to be referred to the Project Review Committee, the council is entitled:
(a)  subject to obtaining the Minister’s consent under section 358 (1) (a), to enter into the public-private partnership, and
(b)  subject to this Division, to carry out the project that is the subject of the assessment.

400G   Minister may require PPP project to be referred to Project Review Committee

(1)  The Minister may direct a council to refer any project that is to be carried out, or is being carried out, under a public-private partnership to the Project Review Committee for review.
(2)  Any such direction:
(a)  may be given at any stage in the process of entering into the public-private partnership or in the carrying out of the project under the partnership, and
(b)  must be complied with by the council.
(3)  A direction may be given under this section only if the Minister is of the opinion that the council concerned has not complied with the PPP guidelines in relation to entering into the public-private partnership or carrying out the project.

400H   Director-General may require council to provide assessment of varied PPP project

(1)  If the Director-General is of the opinion that a project that is to be carried out, or is being carried out, under a public-private partnership has been, or is proposed to be, varied in a significant manner, the Director-General may require the relevant council to provide the Director-General with an assessment of the project as varied or proposed to be varied. Section 400F (2) applies in relation to any such assessment.
(2)  If the Director-General is of the opinion that the project has or will become:
(a)  a significant project, or
(b)  a high risk project (having regard to the criteria specified in the PPP guidelines),
the Director-General is to advise the council that the project is required to be referred to the Project Review Committee for review.
(3)  The relevant council must comply with a direction under subsection (1).

400I   Review of PPP project by Project Review Committee

(1)  If a project is required or directed to be referred to the Project Review Committee for review, the relevant council must not enter into a public-private partnership to carry out the project, or proceed with the carrying out of the project under a public-private partnership, unless:
(a)  the relevant council has provided the Project Review Committee with an assessment of the project in accordance with the PPP guidelines, and
(b)  the Project Review Committee has reviewed the project and is satisfied that the requirements of the PPP guidelines have been complied with in relation to the project.
(2)  The relevant council has the responsibility of demonstrating to the Project Review Committee, in conducting its review of the project, that the requirements of the PPP guidelines have been complied with in relation to the project.
(3)  If the Project Review Committee advises the council that the Committee is satisfied that the requirements of the PPP guidelines have been complied with in relation to the project, the council is entitled:
(a)  to enter into the public-private partnership (if it has not already entered into it), or
(b)  subject to this Division, to proceed with the carrying out of the project.
(4)  The Project Review Committee’s decision as to whether or not the relevant council has complied with the requirements of the PPP guidelines in relation to a project is final and cannot be reviewed by any court or tribunal.

Division 3 Local Government Project Review Committee

400J   Establishment and constitution of Project Review Committee

(1)  A Local Government Project Review Committee is established.
(2)  The Project Review Committee is to consist of the following members:
(a)  the Director-General (or an officer of the Department nominated by the Director-General) who is to be the chairperson of the Committee,
(b)  the Secretary of the Treasury (or an officer of the Treasury nominated by the Secretary),
(c)  the Director-General of the Department of Premier and Cabinet (or an officer of that Department nominated by that Director-General),
(d)  (Repealed)
(e)  the Director-General of the Department of Planning (or an officer of that Department nominated by the Director-General of that Department),
(f)  such other persons as may be appointed by the Director-General for the purposes of enabling the Project Review Committee to exercise its functions.
(3)  The appointment by the Director-General of persons as members of the Project Review Committee under subsection (2) (f) is to be made on the basis of the nature, or subject-matter, of the project that is before the Committee for review. In doing so, the Director-General is to ensure that any person appointed as a member has the relevant expertise to enable the Committee to properly exercise its functions in relation to the project concerned.
(4)  Without limiting subsection (3), the Director-General may appoint persons from the private sector as members of the Project Review Committee.
(5)  The Project Review Committee has such functions as are conferred or imposed on it by or under this or any other Act.
(6)  Schedule 3 has effect with respect to the members and procedure of the Project Review Committee.

Division 4 Miscellaneous provisions

400K   Compensation not payable

(1)  Compensation is not payable by or on behalf of the State arising directly or indirectly from any of the following matters occurring before or after the commencement of this Part:
(a)  the enactment of the Local Government Amendment (Public-Private Partnerships) Act 2004 or the operation of this Part,
(b)  the exercise by the Minister, an officer of the Department or a member of the Project Review Committee of any function under this Part (including any failure or delay in exercising any such function),
(c)  any statement or conduct in connection with public-private partnerships or this Part.
(2)  Compensation is not payable by a council to any private person as a consequence of the council being prevented, by the operation of this Part, from entering into a public-private partnership or from carrying out a project under a public-private partnership.
(3)  However, subsection (2) does not apply in relation to a council if the public-private partnership concerned is a partnership referred to in section 400N (2).
(4)  In this section:

compensation includes damages or any other form of monetary compensation.

conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.

statement includes a representation of any kind, whether made verbally or in writing and whether negligent, false or misleading or otherwise.

the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes an officer, employee or agent of the Crown or any member of the Project Review Committee.

400L   Decision by council to enter into public-private partnership

Any decision by a council in relation to entering into a public-private partnership may only be made by resolution of the council.

400M   No contracting out

This Part applies regardless of the terms of any arrangement between a council and a private person.

400N   Application of Part

(1)  This Part does not apply to any public-private partnership that a council resolved, before 28 June 2004, to enter into.
(2)  However, if a council resolved, on or after 28 June 2004 but before the commencement of this Part, to enter into a public-private partnership, this Part applies to and in respect of the partnership.

Chapter 13 How are councils made accountable for their actions?

Introduction. This Chapter sets out the mechanisms by which a council is made accountable for its actions.

Each local government area must have a community strategic plan developed by the council for the future of the local community covering a period of at least 10 years. To support the community strategic plan, a council must have a long-term resourcing strategy that includes long-term financial planning, workforce management planning and asset management planning.

Councils have a custodial role in developing and monitoring the community strategic plan for the local government area on behalf of their communities. Achieving the strategic objectives in the community strategic plan may involve other partners including State government agencies, non-government organisations and other community groups and individuals.

A council must have a delivery program that details the principal activities to be undertaken by the council in order to achieve the objectives established by the community strategic plan that it is responsible for. A council must establish a new delivery program after each ordinary election.

Before the beginning of each year a council must adopt an operational plan that includes a statement of the council’s revenue policy and the activities to be engaged in by the council during the year. Public notice is to be given by the council of its operational plan.

A council is required to have 2 funds (a consolidated fund and a trust fund). It must keep proper accounts, which are to be audited annually.

Each year a council is required to prepare an annual report to its community on its work and activities.

Councils are accountable to residents and ratepayers in their local government area. The Director-General has power to investigate a council, its work and its activities and report on the investigation to the Minister. The Minister has power to issue a performance improvement order in respect of a council, to suspend a council and to initiate a public inquiry into the operations of a council.

Members of the general public are entitled to inspect a wide range of council documents (see section 12). Members of the general public are also entitled, under the Government Information (Public Access) Act 2009, to be given access to certain other documents held by a council. They are also entitled, under the Privacy and Personal Information Protection Act 1998, to require the correction of certain kinds of information in the event that the information is incomplete, incorrect, out of date or misleading.

Part 1 Preliminary

401   Application of Chapter

This Chapter applies to the functions conferred or imposed on a council by or under this or any other Act or law.
Note. Examples of functions conferred or imposed on councils by or under other Acts are set out in the Note to section 22.

Part 2 Strategic planning

402   Community strategic plan

(1)  Each local government area must have a community strategic plan that has been developed and endorsed by the council. A community strategic plan is a plan that identifies the main priorities and aspirations for the future of the local government area covering a period of at least 10 years from when the plan is endorsed.
(2)  A community strategic plan is to establish strategic objectives together with strategies for achieving those objectives.
(3)  The council must ensure that the community strategic plan:
(a)  addresses civic leadership, social, environmental and economic issues in an integrated manner, and
(b)  is based on social justice principles of equity, access, participation and rights, and
(c)  is adequately informed by relevant information relating to civic leadership, social, environmental and economic issues, and
(d)  is developed having due regard to the State government’s State Plan and other relevant State and regional plans of the State government.
(4)  The council must establish and implement a strategy (its community engagement strategy), based on social justice principles, for engagement with the local community when developing the community strategic plan.
(5)  Following an ordinary election of councillors, the council must review the community strategic plan before 30 June following the election. The council may endorse the existing plan, endorse amendments to the existing plan or develop and endorse a new community strategic plan, as appropriate to ensure that the area has a community strategic plan covering at least the next 10 years.
(6)  A draft community strategic plan or amendment of a community strategic plan must be placed on public exhibition for a period of at least 28 days and submissions received by the council must be considered by the council before the plan or amendment is endorsed by the council.
(7)  Within 28 days after a community strategic plan is endorsed, the council must post a copy of the plan on the council’s website and provide a copy to the Director-General. A copy of a community strategic plan may be provided to the Director-General by notifying the Minister of the appropriate URL link to access the plan on the council’s website.

403   Resourcing strategy

(1)  A council must have a long-term strategy (called its resourcing strategy) for the provision of the resources required to implement the strategies established by the community strategic plan that the council is responsible for.
(2)  The resourcing strategy is to include long-term financial planning, workforce management planning and asset management planning.

404   Delivery program

(1)  A council must have a program (its delivery program) detailing the principal activities to be undertaken by the council to implement the strategies established by the community strategic plan within the resources available under the resourcing strategy.
(2)  The delivery program must include a method of assessment to determine the effectiveness of each principal activity detailed in the delivery program in implementing the strategies and achieving the strategic objectives at which the principal activity is directed.
(3)  The council must establish a new delivery program after each ordinary election of councillors to cover the principal activities of the council for the 4-year period commencing on 1 July following the election.
(4)  A draft delivery program must be placed on public exhibition for a period of at least 28 days and submissions received by the council must be considered by the council before the delivery program is adopted by the council.
(5)  The general manager must ensure that regular progress reports are provided to the council reporting as to its progress with respect to the principal activities detailed in its delivery program. Progress reports must be provided at least every 6 months.

405   Operational plan

(1)  A council must have a plan (its operational plan) that is adopted before the beginning of each year and details the activities to be engaged in by the council during the year as part of the delivery program covering that year.
(2)  An operational plan must include a statement of the council’s revenue policy for the year covered by the operational plan. The statement of revenue policy must include the statements and particulars required by the regulations.
(3)  A council must prepare a draft operational plan and give public notice of the draft indicating that submissions may be made to the council at any time during the period (not less than 28 days) that the draft is to be on public exhibition. The council must publicly exhibit the draft operational plan in accordance with the notice.
(4)  During the period of public exhibition, the council must have for inspection at its office (and at such other places as it may determine) a map that shows those parts of its area to which each category and sub-category of the ordinary rate and each special rate included in the draft operational plan applies.
(5)  In deciding on the final operational plan to be adopted, a council must consider any submissions that have been made concerning the draft plan.
(6)  The council must post a copy of its operational plan on the council’s website within 28 days after the plan is adopted.

406   Integrated planning and reporting guidelines

(1)  The Director-General is to establish integrated planning and reporting guidelines (referred to in this Chapter as the guidelines) for the purposes of this Chapter.
(2)  The guidelines can impose requirements in connection with the preparation, development and review of, and the contents of, the community strategic plan, resourcing strategy, delivery program, operational plan, community engagement strategy, annual report and state of the environment report of a council.
(3)  In particular (but without limiting subsection (2)), the guidelines can impose requirements in relation to any of the following:
(a)  the procedures to be followed in the preparation, development or review of plans, strategies, programs and reports,
(b)  the matters to be addressed or provided for by plans, strategies, programs and reports,
(c)  requirements for consultation in connection with the preparation, development or review of plans, strategies and programs,
(d)  the matters to be taken into account or to which regard is to be had in connection with the preparation, development or review of plans, strategies, programs and reports.
(4)  A council must ensure that the requirements of the guidelines are complied with.
(5)  The guidelines can include other material for the guidance of councils in connection with the plans, strategies, programs and reports to which this section applies.
(6)  The Director-General may review and amend the guidelines from time to time.
(7)  The guidelines and any amendment of the guidelines must be posted on the Department’s website and notified in writing to each council by the Director-General.

407   (Repealed)

Part 3 Financial management

Division 1 Funds

408   The council’s funds

A council must have 2 separate funds:
•  a consolidated fund
•  a trust fund.

409   The consolidated fund

(1)  All money and property received by a council must be held in the council’s consolidated fund unless it is required to be held in the council’s trust fund.
(2)  Money and property held in the council’s consolidated fund may be applied towards any purpose allowed by this or any other Act.
(3)  However:
(a)  money that has been received as a result of the levying of a special rate or charge may not be used otherwise than for the purpose for which the rate or charge was levied, and
(b)  money that is subject to the provisions of this or any other Act (being provisions that state that the money may be used only for a specific purpose) may be used only for that purpose, and
(c)  money that has been received from the Government or from a public authority by way of a specific purpose advance or grant may not, except with the consent of the Government or public authority, be used otherwise than for that specific purpose.
(d)  (Repealed)
(4)  Pending its expenditure for the purpose for which it is held, money of the kind referred to in subsection (3) (a), (b) or (c) may not be held otherwise than in an account with a bank, building society or credit union or in an investment in which such money is, by or under this or any other Act, authorised to be invested.
(5)  Despite subsections (3) and (4), a council may:
(a)  deduct, from the money required by subsection (3) to be used only for the specific purpose of water supply or sewerage services, an amount in the nature of a return on capital invested payment (dividend), and
(b)  apply that amount towards any purpose allowed for the expenditure of money by councils by this Act or any other Act.
(6)  The Minister for Energy and Utilities, with the concurrence of the Minister administering this Act:
(a)  is to cause guidelines to be prepared and published in the Gazette relating to the management of the provision of water supply and sewerage services by councils, and
(b)  may, if of the opinion that a council has not substantially complied with the guidelines, direct the council to comply with any particular aspect of the guidelines before making any further deduction under subsection (5).
(7)  Before making a deduction under subsection (5), a council must:
(a)  comply with the guidelines published under subsection (6) and any direction given under that subsection, and
(b)  indicate in an open meeting of the council that the guidelines and any such direction have been complied with in relation to the making of the deduction.
(8)  Subsections (5)–(7) extend to a council that is a water supply authority within the meaning of the Water Management Act 2000.

410   Alternative use of money raised by special rates or charges

(1)  This section applies to money that has been received by a council as a result of the levying of a special rate or a charge.
(2)  If the special rate or charge has been discontinued and the purpose for which the money was received has been achieved, or is no longer required to be achieved, any remaining money may be used by the council for any other purpose if, and only if:
(a)  a proposal to that effect has been included in a draft operational plan for the current year or for a previous year, and
(b)  public notice of the fact that the proposal was included in the operational plan adopted by the council for that year has been published in a newspaper.
(3)  Money that is not yet required for the purpose for which it was received may be lent (by way of internal loan) for use by the council for any other purpose if, and only if, its use for that other purpose is approved by the Minister.
(4)  In granting such an approval, the Minister must impose conditions as to the time within which the internal loan must be repaid and as to any additional amount, in the nature of interest, that is to be paid in connection with that loan.

411   The trust fund

(1)  All money and property received by a council in trust must be held in the council’s trust fund.
(2)  Money or property held in the council’s trust fund must be applied for the purposes, or in accordance with the trusts, relating to it.

Division 2 Accounting records, financial reports and auditing

412   Accounting records

(1)  A council must keep such accounting records as are necessary to correctly record and explain its financial transactions and its financial position.
(2)  In particular, a council must keep its accounting records in a manner and form that facilitate:
(a)  the preparation of financial reports that present fairly its financial position and the results of its operations, and
(b)  the convenient and proper auditing of those reports.

413   Preparation of financial reports

(1)  A council must prepare financial reports for each year, and must refer them for audit as soon as practicable (having regard to the requirements of section 416 (1)) after the end of that year.
Note. Under section 416 (1), a council’s financial reports for a year must be prepared and audited within 4 months after the end of the year concerned, and under section 428 (2) (a) the audited financial reports must be included in the council’s annual report.
(2)  A council’s financial reports must include:
(a)  a general purpose financial report, and
(b)  any other matter prescribed by the regulations, and
(c)  a statement in the approved form by the council as to its opinion on the general purpose financial report.
(3)  The general purpose financial report must be prepared in accordance with this Act and the regulations and the requirements of:
(a)  the publications issued by the Australian Accounting Standards Board, as in force for the time being, subject to the regulations, and
(b)  such other standards as may be prescribed by the regulations.
(4)  (Repealed)

414   (Repealed)

415   Auditing of financial reports

(1)  A council’s auditor must audit the council’s financial reports as soon as practicable (having regard to the requirements of section 416 (1)) after they are referred for audit.
(2)  A council’s financial reports must be audited in accordance with the requirements of:
(a)  the publications issued by the Australian Accounting Research Foundation, on behalf of the Australian Society of Certified Practising Accountants and the Institute of Chartered Accountants in Australia, under the titles Statements of Auditing Standards and Statements of Auditing Practice, as in force for the time being, subject to the regulations, and
(b)  such other standards as may be prescribed by the regulations.
(3)  The regulations may prescribe matters that an auditor must consider and provide comment on in auditing a council’s financial reports.

416   Time for preparation and auditing of financial reports

(1)  A council’s financial reports for a year must be prepared and audited within the period of 4 months after the end of that year.
(2)  A council may from time to time apply to the Director-General for an extension of that period.
(3)  A council must make such an application if requested to do so by its auditor.
(4)  Before deciding whether or not to grant an extension, the Director-General may require the council to give reasons, additional to those set out in the application, as to why the extension should be granted.
(5)  The Director-General may grant an extension of such period as, in the opinion of the Director-General, is necessary in the particular circumstances of the case.
(6)  A council must notify its auditor of any application for an extension made under this section and of the outcome of the application.

417   Auditor’s reports

(1)  A council’s auditor must prepare 2 reports:
•  a report on the general purpose financial report
•  a report on the conduct of the audit.
(2)  The report on the council’s financial reports must include the following:
(a)  a statement as to whether, in the opinion of the auditor, the council’s accounting records have been kept in accordance with the requirements of this Division,
(b)  a statement as to whether, in the opinion of the auditor, the council’s financial reports:
(i)  have been prepared in accordance with the requirements of this Division, and
(ii)  are consistent with the council’s accounting records, and
(iii)  present fairly the council’s financial position and the results of its operations,
(c)  a statement as to whether, in the opinion of the auditor, any information relevant to the conduct of the audit has been unobtainable by the auditor,
(d)  a statement setting out particulars of any material deficiency in the accounting records or financial reports that has come to light in the course of the audit.
(3)  The report on the conduct of the audit may contain such statements, comments and recommendations as to the conduct of the audit of the council’s financial reports as the auditor considers appropriate to include in the report.
(4)  As soon as practicable after completing the audit, the auditor must send a copy of the auditor’s reports to the Director-General and to the council.
(5)  As soon as practicable after receiving the auditor’s reports, the council must send a copy of the auditor’s report on the council’s financial reports, together with a copy of the council’s audited financial reports, to the Director-General and to the Australian Bureau of Statistics.

418   Public notice to be given of presentation of financial reports

(1)  As soon as practicable after a council receives a copy of the auditor’s reports:
(a)  it must fix a date for the meeting at which it proposes to present its audited financial reports, together with the auditor’s reports, to the public, and
(b)  it must give public notice of the date so fixed.
(2)  The date fixed for the meeting must be at least 7 days after the date on which the notice is given, but not more than 5 weeks after the auditor’s reports are given to the council.
Note. Unless an extension is granted under section 416, the meeting must be held on or before 5 December after the end of the year to which the reports relate.
(3)  The public notice must include:
(a)  a statement that the business of the meeting will include the presentation of the audited financial reports and the auditor’s reports, and
(b)  a summary, in the approved form, of the financial reports, and
(c)  a statement to the effect that any person may, in accordance with section 420, make submissions (within the time provided by that section and specified in the statement) to the council with respect to the council’s audited financial reports or with respect to the auditor’s reports.
(4)  Copies of the council’s audited financial reports, together with the auditor’s reports, must be kept available at the office of the council for inspection by members of the public on and from the date on which public notice of the holding of the meeting is given and until the day after the meeting (or any postponement of the meeting).

419   Presentation of the council’s financial reports

(1)  A council must present its audited financial reports, together with the auditor’s reports, at a meeting of the council held on the date fixed for the meeting.
(2)  The council’s auditor may, and if so required in writing by the council must, attend the meeting at which the financial reports are presented.

420   Submissions on financial reports and auditor’s reports

(1)  Any person may make submissions to the council with respect to the council’s audited financial reports or with respect to the auditor’s reports.
(2)  A submission must be in writing and must be lodged with the council within 7 days after the date on which those reports are presented to the public.
(3)  The council must ensure that copies of all submissions received by it are referred to the auditor.
(4)  The council may take such action as it considers appropriate with respect to any such submission, including the giving of notice to the Director-General of any matter that appears to require amendment of the council’s financial reports.

421   Interim reports

(1)  A council’s auditor may, at any time during the audit of a council’s financial reports, report to the Minister on any matter relating to those reports or to the conduct of the audit.
(2)  The auditor must give the council a copy of any report made to the Minister under this section.

Division 3 Auditors

422   Appointment of auditors

(1)  A council must appoint a person as its auditor.
(2)  A council’s auditor may be:
(a)  an individual who is a registered company auditor, or
(b)  a partnership whose members or employees include a registered company auditor, or
(c)  a corporation whose employees include a registered company auditor.
(3)  If the council’s auditor is a partnership, any member or employee of the partnership may act as the council’s auditor as long as he or she is a registered company auditor.
(4)  If the council’s auditor is a corporation, any employee of the corporation may act as the council’s auditor as long as he or she is a registered company auditor.
(5)  An auditor may not be appointed or reappointed unless tenders for the appointment or reappointment have been called.
(6)  In this section, registered company auditor has the same meaning as it has in the Corporations Act 2001 of the Commonwealth and includes the Auditor-General.

423   Disqualified persons

(1)  A person may not be appointed as a council’s auditor:
(a)  in the case of an individual, if he or she is a disqualified person, or
(b)  in the case of a partnership, if any member or employee of the partnership is a disqualified person, or
(c)  in the case of a corporation, if the corporation or any employee of the corporation is a disqualified person.
(2)  In this section, disqualified person means a person:
(a)  who is a councillor or an employee of the council, or
(b)  who is in debt to the council otherwise than for rates or charges owed by the person as a ratepayer, or
(c)  who has a contractual arrangement with the council that (if the person were the council’s auditor) might reasonably be seen to give rise to a conflict between the person’s duties as an auditor and the person’s interests under the arrangement.

424   Auditor’s term of office

(1)  A council’s auditor holds office for 6 years and, if otherwise qualified, is eligible for re-appointment subject to this section.
(2)  The office of auditor becomes vacant if the auditor:
(a)  dies, or
(b)  completes a term of office and is not re-appointed, or
(c)  ceases to be qualified to hold office as auditor or becomes a disqualified person within the meaning of section 423, or
(d)  resigns office by notice in writing addressed to the council, or
(e)  becomes a mentally incapacitated person, or
(f)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(g)  is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(h)  is removed by the council in accordance with this section.
(3)  The council may remove an auditor from office only with the consent of the Minister.
(4)  If the office of auditor becomes vacant, the council must appoint a qualified person to fill the vacancy.

425   Auditor-General to be auditor in certain instances

(1)  The Auditor-General is authorised to audit a council’s financial reports if the council fails to appoint an auditor or during any vacancy in the office of auditor.
(2)  The costs certified by the Auditor-General as having been incurred by the Auditor-General in auditing a council’s financial reports in accordance with the authorisation given by this section must be paid by the council.

426   Auditor may exercise general power of inspecting accounting records

(1)  A council’s auditor:
(a)  may inspect the council’s accounting records and other records necessary in order to carry out the auditor’s functions at any time, and
(b)  must inspect those records at such periods as may be prescribed by the regulations,
for the purpose of forming an opinion as to whether the requirements of this Act and the regulations are being complied with.
(2)  The auditor may report to the council or to the Minister on the results of the inspection.
(3)  Such a report may deal with such matters concerning the council’s accounting and other records as, in the auditor’s opinion, should be dealt with by the report.
(4)  The auditor must give the council a copy of any report made under this section to the Minister.

427   Powers of auditor

(1)  When exercising the functions conferred on a council’s auditor by this Part, a council’s auditor is entitled at all reasonable times to full and free access to the council’s accounting records and other records necessary in order to carry out the auditor’s functions and may direct a councillor, the general manager or any other member of staff of the council:
(a)  to produce to the auditor any document relating to those records that is in that person’s custody or under that person’s control, or
(b)  to grant to the auditor such authorities as may be necessary to enable the auditor to gain access to any document relating to those records that is in the custody or control of any bank, building society, credit union or other person, or
(c)  to answer any question,
being a document or question that, in the opinion of the auditor, is relevant to the carrying out of the auditor’s functions.
(2)  An auditor may make copies of or take extracts from any document to which the auditor gains access under this section.

Part 4 Annual reports

428   Annual reports

(1)  Within 5 months after the end of each year, a council must prepare a report (its annual report) for that year reporting as to its achievements in implementing its delivery program and the effectiveness of the principal activities undertaken in achieving the objectives at which those principal activities are directed.
(2)  The annual report in the year in which an ordinary election of councillors is to be held must also report as to the council’s achievements in implementing the community strategic plan over the previous 4 years.
(3)  An annual report must be prepared in accordance with the guidelines under section 406.
(4)  An annual report must contain the following:
(a)  a copy of the council’s audited financial reports prepared in accordance with the Local Government Code of Accounting Practice and Financial Reporting published by the Department, as in force from time to time,
(b)  such other information as the regulations or the guidelines under section 406 may require.
(5)  A copy of the council’s annual report must be posted on the council’s website and provided to the Minister and such other persons and bodies as the regulations may require. A copy of a council’s annual report may be provided to the Minister by notifying the Minister of the appropriate URL link to access the report on the council’s website.

428A   State of the environment reports

(1)  The annual report of a council in the year in which an ordinary election of councillors is to be held must include a report (a state of the environment report) as to the state of the environment in the local government area in relation to such environmental issues as may be relevant to the objectives for the environment established by the community strategic plan (the environmental objectives).
(2)  A state of the environment report must be prepared in accordance with the guidelines under section 406.
(3)  The state of the environment report is to:
(a)  establish relevant environmental indicators for each environmental objective, and
(b)  report on, and update trends in, each such environmental indicator, and
(c)  identify all major environmental impacts (being events and activities that have a major impact on environmental objectives).
(4)  A state of the environment report for a council’s area may be prepared as part of and for the purposes of a state of the environment report for a larger area (such as a region or a catchment management area) and a report for the larger area that includes the required information in respect of the council’s area may be included in the council’s annual report as the council’s state of the environment report.

Part 5 Inquiries, reviews and surcharging

Division 1 Inquiries and reviews

429   Provision of documents or information about council

(1)  The Minister or Director-General may at any time, by order, direct a council, a councillor or the general manager of a council to provide such documents or information concerning the council, its operations or its activities as the Minister or Director-General specifies in the order.
(2)  A copy of the order must be served on the council or person required to provide the documents or information.
Note. Failure to comply with a direction is an offence under section 661.

429A   Complaints about councils, councillors, delegates and staff

(1)  A public official within the meaning of the Public Interest Disclosures Act 1994 may complain to the Director-General about the conduct of any one or more of the following:
(a)  a council,
(b)  a delegate of a council,
(c)  a councillor,
(d)  a member of staff of a council.
(2)  A complaint may be made orally or in writing.
(3)  The Director-General may deal with a complaint made under this section:
(a)  by means of an investigation under this Division, or
(b)  in such other manner as the Director-General considers appropriate.

430   Director-General may investigate councils

The Director-General may, at the request of the Minister or on the Director-General’s own initiative, conduct an investigation into any aspect of a council or of its work and activities.

431   Powers in connection with investigation

(1)  For the purpose of conducting an investigation under this Division, the Director-General may direct a person to do any one or more of the following:
(a)  to appear personally before the Director-General at a time and place specified in the direction,
(b)  to give evidence (including evidence on oath),
(c)  to produce to the Director-General any document that is in that person’s custody or under that person’s control,
(d)  to grant to the Director-General such authorities as may be necessary to enable the Director-General to gain access to any document that is in the custody or under the control of any bank, building society, credit union or other person.
Note. Failure to comply with a direction is an offence under section 661.
(2)  For the purposes of this section, the Director-General may administer an oath.
(3)  The Director-General may take copies of or extracts from any document to which the Director-General gains access under this section.

432   Entry on to premises

Part 2 of Chapter 8 applies to the Director-General when exercising functions in respect of an investigation under this Division in the same way as it applies to a council and a council employee (or other person) authorised by the council.

433   Report of investigation

(1)  The Director-General must report to the Minister on the results of an investigation under this Division and must send a copy of the report to the council concerned.
(2)  The report may comment on any matter that, in the Director-General’s opinion, warrants special mention and may contain such recommendations as the Director-General considers appropriate.
(3)  A report furnished to the council under this section must be presented at the next meeting of the council after the report is received.
(4)  Section 14B of the Royal Commissions Act 1923 applies in relation to any report that the Minister wishes to lay before both Houses of Parliament in the same way as it applies to a report made by a commission under that Act.

434   Council’s response to report

(1)  A council must, within 40 days after presentation to it of a report made by the Director-General following an investigation under this Division, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report.
(2)  The Minister may:
(a)  after receiving the council’s notice, or
(b)  after the 40-day period,
whichever is the earlier, order the council to do such things or to refrain from doing such things arising from the recommendations contained in the report as are specified in the order.
(3)  A council must comply with the Minister’s order.
(4)  An order under this section may state that a failure to comply with the order may lead to legal proceedings being taken to enforce compliance.

434A   Council’s response to Ombudsman’s report

(1)  The Minister may order a council to present a copy of a report made by the Ombudsman under section 26 of the Ombudsman Act 1974 concerning the conduct of the council (together with a copy of the Minister’s order) at the next meeting of the council occurring after the order is made.
(2)  The council must, within 40 days after the presentation of the Ombudsman’s report and the Minister’s order, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report.
(3)  At any time after receiving the council’s notice or the expiration of the 40-day period (whichever is the earlier) the Minister may order the council to do such things or to refrain from doing such things arising from the recommendations contained in the Ombudsman’s report as are specified in the order.
(4)  The council must comply with any order made by the Minister under this section.
(5)  An order under this section may state that a failure to comply with the order may lead to legal proceedings being taken to enforce compliance.
(6)  Nothing in this section affects any other obligation of the council in respect of the Ombudsman’s report under the Ombudsman Act 1974.

434B   Expenses of investigation to be borne by council

(1)  The Director-General may recover the reasonable expenses incurred by the Director-General in respect of an investigation under this Division if the investigation relates to:
(a)  the administration of an election by a general manager, or
(b)  a recurring problem with the administration of a council.
(1A)  A recurring problem with the administration of a council means any facts or circumstances with respect to the council, its work or its activities that have been the subject of previous Ministerial intervention, and that have continued to exist or have recurred, despite that Ministerial intervention.
(1B)  In this section, Ministerial intervention means:
(a)  the issue of a performance improvement order, or
(b)  the temporary suspension of a council under Part 7.
(2)  The Director-General may make a determination of the amount of the expenses referred to in subsection (1) and serve a notice on the council requiring the amount so determined be paid in recovery of the expenses.
(3)  An amount equal to the expenses as so determined is payable to the Director-General as a debt by the council concerned, except as determined by the Director-General.
(4)  The council may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of whether any part of the expenses so determined are not reasonable expenses.
(5)  The Director-General must give effect to any decision of the Tribunal on an administrative review of the determination of the amount of the expenses.
(6)  In this section, expenses incurred in respect of an investigation under this Division include:
(a)  investigation expenses of the Director-General or departmental staff, and
(b)  remuneration paid to departmental staff assisting with the investigation, and
(c)  expenses associated with the preparation of a report in respect of the investigation.
(7)  The Director-General may certify that an investigation under this Division relates to a recurring problem with the administration of a council and that certificate is sufficient evidence, unless the contrary is proved, that the investigation relates to a recurring problem with the administration of the council.

434C   Self-incrimination

(1)  A person is not excused from a requirement under this Division to provide records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(2)  However, any information provided or answer given by a natural person in compliance or in purported compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence of failing to comply with the requirement or of providing information that is false or misleading) if the person objected at the time to doing so on the ground that it might incriminate the person.
(3)  Despite any such objection, any answer or information may be used in connection with a public inquiry or an investigation under this Division, or an investigation or the taking of disciplinary action against the person under Division 3 of Part 1 of Chapter 14, and is admissible in proceedings under this Act relating to misconduct.
(4)  Any record provided by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

Division 2 Surcharging

435   Surcharging by Director-General

(1)  If satisfied that any expenditure or transfer, or any entry in a council’s accounts, has been incurred or made in contravention of this or any other Act or of any regulation in force under this or any other Act, the Director-General may:
(a)  disallow the expenditure, transfer or entry, and
(b)  surcharge the amount of the disallowance on the councillor, the general manager or any other member of staff of the council by whom the expenditure, transfer or entry was incurred or made or ordered to be incurred or made.
(2)  The Director-General may also surcharge on a councillor, the general manager or any other member of staff of the council the amount of:
(a)  any deficiency or loss incurred by the council as a consequence of the negligence or misconduct of the councillor, general manager or member of staff, or
(b)  any money which ought to have been, but has not been, brought into account by the councillor, general manager or member of staff.
(3)  (Repealed)

436   Procedure for surcharging

(1)  Before surcharging a person, the Director-General:
(a)  must cause notice of the proposed surcharge, and of the reasons for the proposed surcharge, to be given to the person, and
(b)  must allow the person a reasonable opportunity to make submissions to the Director-General with respect to the proposed surcharge, and
(c)  must take into consideration any submissions duly made by the person with respect to the proposed surcharge.
(2)  The Director-General must certify in the council’s accounts the amount by which the Director-General has surcharged any person.
(3)  Immediately on surcharging an amount on any person, the Director-General must give notice of that fact to the person.

437   Applications for administrative review by NCAT

(1)  A person who is surcharged under this Division may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision to surcharge.
(2)  The council must give effect to any decision of the Tribunal on an administrative review of the decision to surcharge.

438   Recovery of amount surcharged

(1)  The amount of a surcharge becomes payable to the council as a debt when the time within which an appeal may be made against the surcharge expires or, if such an appeal is made and the surcharge is not annulled, when that appeal is finally determined.
(2)  Any money recovered in connection with a surcharge relating to a particular account is to be paid into the fund in which money in that account is held.

Part 6 Performance management

438A   Performance improvement order

(1)  The Minister may issue an order in respect of a council if the Minister reasonably considers that action must be taken to improve the performance of the council.
(2)  An order issued under this section is a performance improvement order.
(3)  A performance improvement order is to specify:
(a)  the reasons why the Minister has decided to issue the order, and
(b)  the actions that the Minister requires to be taken to improve the performance of the council.
(4)  Actions to improve the performance of a council include any actions the Minister considers necessary to improve or restore the proper or effective functioning of the council.
(5)  The order may require action to be taken by the council, by individual councillors, or both.
(6)  A performance improvement order may require the quorum for a meeting of the council to be determined as specified by the Minister in the performance improvement order.
(7)  A copy of the performance improvement order is to be served on the council.
(8)  In relation to a performance improvement order, a reference to an action, or the taking of any action, includes a reference to doing any thing or refraining from doing any thing.

438B   Criteria to be considered by Minister

(1)  The regulations may make provision for or with respect to the criteria to be considered by the Minister in issuing performance improvement orders (performance improvement criteria).
(2)  A performance improvement order may be issued only after consideration of the performance improvement criteria.

438C   Minister to give notice of intention to issue performance improvement order

(1)  The Minister is to give a council notice in writing of his or her intention to issue a performance improvement order in respect of the council.
(2)  The notice is to specify the following:
(a)  the terms of the proposed performance improvement order, including the period for compliance with the order,
(b)  the reasons why it is proposed to issue the performance improvement order (including any evidence supporting the Minister’s opinion that improvement is required),
(c)  the actions that may be taken by the Minister if the performance improvement order is not complied with.
(3)  The notice must invite the council to make submissions in respect of the proposed performance improvement order within a consultation period specified in the notice.
(4)  The notice is to specify a consultation period of:
(a)  not less than 21 days from the date the notice is served on the council, unless paragraph (b) applies, or
(b)  not less than 7 days from the date the notice is served on the council, if the Minister considers that the improvement in the council’s performance is required as a matter of urgency.
(5)  The Minister is to have regard to any submissions made by the council during the consultation period in deciding:
(a)  whether to issue the proposed performance improvement order, and
(b)  whether any changes should be made to the terms of the proposed performance improvement order.
(6)  The Minister is not required to give notice to a council of his or her intention to issue a performance improvement order in respect of the council if:
(a)  the council is suspended under Part 7, or
(b)  the order is issued in response to the results of a public inquiry in relation to a council.

438D   Performance improvement order to be made public

(1)  The Director-General is to cause any performance improvement order issued by the Minister to be published on the Department’s website.
(2)  A council is to cause any performance improvement order issued in respect of the council to be published on the council’s website.

438E   Compliance with performance improvement order

(1)  The governing body of a council is responsible for ensuring the council’s compliance with a performance improvement order.
(2)  A council complies with a performance improvement order only if the actions required by the performance improvement order (including any actions required to be taken by individual councillors) are taken to the satisfaction of the Minister.

438F   Compliance report

(1)  A council must provide the Minister with a written report on its compliance with a performance improvement order within the time required by the performance improvement order.
(2)  Such a report is referred to in this Part as a compliance report.
(3)  A compliance report must specify any actions taken that demonstrate compliance with the performance improvement order.
(4)  A compliance report must comply with any requirements specified in the performance improvement order.

438G   Appointment of temporary adviser

(1)  If the Minister issues a performance improvement order in respect of a council, the Minister may appoint one or more persons as a temporary adviser to the council.
(2)  A temporary adviser may be appointed in the performance improvement order or by subsequent order of the Minister served on the council.
(3)  A temporary adviser may be appointed on the recommendation of the council or on the Minister’s own initiative.
(4)  The principal functions of a temporary adviser are:
(a)  to provide advice and assistance to the council for the purpose of ensuring that it complies with the performance improvement order, and
(b)  to monitor the council’s compliance with the performance improvement order.
(5)  A temporary adviser has such other functions as are specified in the instrument by which he or she is appointed.
(6)  A temporary adviser is appointed for the term specified in the instrument by which he or she is appointed. The term must not exceed the period for compliance with the performance improvement order.
(7)  A temporary adviser must be paid a salary from the council’s funds determined by the council (in the case of an adviser appointed on the recommendation of the council) or by the Minister (in any other case).
(8)  The Minister may terminate a temporary adviser’s appointment at any time.

438H   Co-operation with temporary adviser

(1)  If a temporary adviser is appointed to a council, the council, councillors and members of the staff of the council are required to co-operate with the temporary adviser and to provide any information or assistance the temporary adviser reasonably requires to exercise his or her functions.
(2)  In particular, the council is to give the temporary adviser an opportunity to review any proposed compliance report at least 14 days before it is given to the Minister and is to give the Minister a copy of the temporary adviser’s comments (if any) on the compliance report.
(3)  A contravention of this section is a failure to comply with a performance improvement order.

Part 7 Temporary suspension of council

438I   Power of Minister to suspend council

(1)  The Minister may, by order published in the Gazette, suspend a council for a period specified in the order if the Minister reasonably believes that the appointment of an interim administrator is necessary to restore the proper or effective functioning of the council.
(2)  An order under this section is referred to in this Part as a suspension order.

438J   Criteria to be considered by Minister

(1)  The regulations may make provision for or with respect to the criteria to be considered by the Minister in suspending councils under this Part (suspension criteria).
(2)  A council may be suspended under this Part only after consideration of the suspension criteria.

438K   Minister to give notice of intention to suspend council

(1)  The Minister is to give a council notice in writing of his or her intention to suspend the council.
(2)  The notice is to specify:
(a)  the reasons why it is proposed to suspend the council, and
(b)  the duration of the proposed suspension.
(3)  The notice must invite the council to make submissions in respect of the proposed suspension within a consultation period specified in the notice.
(4)  The notice is to specify a consultation period of:
(a)  not less than 14 days from the date the notice is served on the council, unless paragraph (b) applies, or
(b)  not less than 7 days from the date the notice is served on the council, if the Minister considers that the suspension is required as a matter of urgency.
(5)  The Minister is to have regard to any submissions made by the council during the consultation period in deciding whether to suspend the council.

438L   Effect of suspension on councillors

(1)  During the period in which a council is suspended under this Part, any persons holding civic office in relation to the council are taken also to be suspended from office.
(2)  A person, while suspended from civic office under this section:
(a)  is not entitled to exercise any of the functions of the civic office, and
(b)  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of any council facilities, to which the person would otherwise be entitled as the holder of the civic office.

438M   Appointment of interim administrator

(1)  The Minister must, in a suspension order or by subsequent order published in the Gazette, appoint an administrator of a council that is suspended.
(2)  The order is to specify the period for which the administrator is appointed, not exceeding the period during which the council is suspended.
(3)  An administrator appointed under this section is an interim administrator.
(4)  More than one interim administrator may be appointed for a council (with the same or different functions).
(5)  An interim administrator of a council has, during the period of appointment as administrator, all the functions of the council, or, if more than one interim administrator is appointed, the functions of the council specified in the instrument of appointment.
(6)  If more than one interim administrator is appointed for a council, the Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one interim administrator.
(7)  An interim administrator must be paid a salary from the council’s funds determined by the Minister.
(8)  The Minister may, by order published in the Gazette, extend the period for which an interim administrator is appointed if the period during which the council is suspended is extended.
(9)  The Minister may terminate an interim administrator’s appointment at any time.
(10)  A reference in this or any other Act, or any statutory instrument, to an administrator of a council includes, unless the context otherwise requires, a reference to an interim administrator.

438N   Report by interim administrator

(1)  An interim administrator is to give the Minister a written report about his or her administration of the council.
(2)  The report is to include any recommendations of the interim administrator in relation to improving or restoring the proper and effective functioning of the council.
(3)  The interim administrator is to provide the report to the Minister no less than 14 days before the end of the initial suspension period of the council.
(4)  The initial suspension period of the council is the suspension period as initially specified in the suspension order, before any extension of the period by further order.
(5)  If the Minister amends a suspension order to extend the suspension period of a council, the interim administrator is to prepare a further report under this section in respect of that extended period and give that report to the Minister no less than 14 days before the end of the extended suspension period.

438O   Suspension period

(1)  The maximum period for which a council can initially be suspended by a suspension order is 3 months.
(2)  However, the Minister may, by order published in the Gazette on or before the end of the period during which the council is suspended, amend the suspension order to extend or further extend the period during which the council is suspended.
(3)  A suspension may be extended only if the Minister reasonably believes that an extension is necessary to restore the proper or effective functioning of the council.
(4)  The maximum total period for which a council can be suspended by a suspension order, as amended under this section, is 6 months.
(5)  The Minister is required to give a council notice in writing of his or her intention to extend the suspension of the council at least 7 days before the order extending the suspension is made.
(6)  The notice is to specify:
(a)  the reasons why it is proposed to extend the suspension, and
(b)  the duration of the proposed extension.
(7)  Submissions in respect of the proposed extension are not to be invited.

438P   Performance improvement orders during suspension period

(1)  A performance improvement order may be issued in respect of a council even if it is suspended under this Part.
(2)  An order issued in such a case may require action to be taken by individual councillors, even though they are suspended by the suspension order.

438Q   Maximum number of suspensions

(1)  The Minister cannot, during the term of a council, make a suspension order in respect of the council more than twice on the basis of the same facts or circumstances.
(2)  This section does not limit the power of the Minister under this Part to extend the period during which a council is suspended by a suspension order.

438R   Ordinary election during suspension period

If an ordinary election of councillors of a council is held during the period in which the council is suspended under this Part, a suspension under this Part:
(a)  is taken to continue after that election, even if it would otherwise have ended, and
(b)  is taken to end immediately before the first meeting of the council after the election.

438S   Election of mayor during suspension period

(1)  An election of the mayor by councillors is not required to be held during a period in which the council is suspended under this Part.
(2)  However, any election that would, but for this section, be required to be held during a period in which the council is suspended must instead be held within 14 days after the end of the suspension period.
(3)  Subsection (2) does not apply if the council is dismissed, or an ordinary election of councillors is held, before the end of the suspension period.

438T   No amalgamations or alterations to area during suspension

(1)  A proclamation under section 218A or 218B is not to be made in relation to the area of a council while the council is suspended under this Part.
(2)  A proposal that a function be exercised under section 218A or 218B in relation to the area of a council cannot be made by or to the Minister while the council is suspended under this Part.

Part 8 Public inquiries

438U   Public inquiries

(1)  The Governor or the Minister may appoint a person as commissioner, or two or more persons as commissioners, to hold a public inquiry and to report to the Governor or the Minister with respect to:
(a)  any matter relating to the carrying out of the provisions of this Act or any other Act conferring or imposing functions on a council, and
(b)  any act or omission of a member of a council, any employee of a council or any person elected or appointed to any office or position under this or any other Act conferring or imposing functions on a council, being an act or omission relating to the carrying out of the provisions of the Act concerned, or to the office or position held by the member, employee or person under the Act concerned, or to the functions of that office or position.
(2)  For the purposes of any inquiry under this section, any person appointed to hold the inquiry has the powers, authorities, protections and immunities conferred on a commissioner, as well as the powers, authorities, protections and immunities conferred by Division 1 of Part 2 of the Royal Commissions Act 1923:
(a)  on a sole commissioner (if the person is the only person appointed to hold the inquiry), or
(b)  on a chairperson of a commission (if the person is one of two or more persons appointed to hold the inquiry and has been appointed as chairperson of the inquiry).
(3)  The provisions of section 24 of the Local Court Act 2007 apply to any witness or person summoned by or appearing before the person so appointed in the same way as it applies to witnesses and persons in proceedings under that Act.
(4)  The provisions of the Royal Commissions Act 1923 (section 13 and Division 2 of Part 2 excepted) apply, with any necessary adaptations, to and in respect of any inquiry under this section and to and in respect of any witness or person summoned by or appearing before the person or persons holding the inquiry.
(5)  The Minister is to cause the report of the person or persons who have held an inquiry under this section to be laid before both Houses of Parliament. If neither House of Parliament is sitting, section 14B of the Royal Commissions Act 1923 applies.

438V   Expenses of public inquiry to be borne by council in certain circumstances

(1)  The Director-General, on behalf of the State, may recover the reasonable expenses incurred by the State in holding a public inquiry if the inquiry relates to a recurring problem with the administration of a council.
(2)  A recurring problem with the administration of a council means any facts or circumstances with respect to the council, its work or its activities that have been the subject of previous Ministerial intervention, and that have continued to exist or have recurred, despite that Ministerial intervention.
(3)  In this section, Ministerial intervention means:
(a)  the issue of a performance improvement order, or
(b)  the temporary suspension of a council under Part 7.
(4)  The Director-General may make a determination of the amount of the expenses referred to in subsection (1) and serve a notice on the council requiring the amount so determined be paid in recovery of the expenses.
(5)  An amount equal to the expenses as so determined, unless the Director-General otherwise decides, is payable to the Director-General as a debt by the council concerned.
(6)  The council may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of whether any part of the expenses so determined are not reasonable expenses.
(7)  The Director-General must give effect to any decision of the Tribunal on an administrative review of the determination of the amount of the expenses.
(8)  In this section, expenses incurred in holding a public inquiry include:
(a)  remuneration paid to the commissioner or commissioners who hold the public inquiry, and
(b)  remuneration paid to staff assisting with the inquiry, and
(c)  expenses associated with the attendance of witnesses or other persons at the inquiry.
(9)  The Director-General may certify that a public inquiry relates to a recurring problem with the administration of a council and that certificate is sufficient evidence, unless the contrary is proved, that the public inquiry relates to a recurring problem with the administration of the council.

438W   Suspension of council during public inquiry

(1)  The Minister may, by order published in the Gazette, suspend a council if a public inquiry relating to the council is held or to be held and the Minister considers it in the public interest to suspend the council.
(2)  The suspension:
(a)  starts on the date appointed by the Minister in the order as the start date for the suspension (being a date no earlier than the date the appointment of one or more commissioners to hold the inquiry takes effect), and
(b)  ends when the suspension is terminated or if the council is dismissed.

438X   Effect of suspension

(1)  During the period in which a council is suspended under this Part, any persons holding civic office in relation to the council are taken also to be suspended from office.
(2)  A person, while suspended from civic office under this section:
(a)  is not entitled to exercise any of the functions of the civic office, and
(b)  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of any council facilities, to which the person would otherwise be entitled as the holder of the civic office.

438Y   Appointment of interim administrator

(1)  The Minister must, in an order suspending a council under this Part or by subsequent order published in the Gazette, appoint an administrator of a council that is suspended.
(2)  The order is to specify the period for which the administrator is appointed, not exceeding the period during which the council is suspended.
(3)  An administrator appointed under this section is an interim administrator.
(4)  More than one interim administrator may be appointed under this section (with the same or different functions).
(5)  An interim administrator of a council has, during the period of appointment as administrator, all the functions of the council, or, if more than one interim administrator is appointed, the functions of the council specified in the instrument of appointment.
(6)  If more than one interim administrator is appointed for a council, the Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one interim administrator.
(7)  An interim administrator must be paid a salary from the council’s funds determined by the Minister.
(8)  The Minister may terminate an interim administrator’s appointment at any time.
(9)  A reference in this or any other Act, or any statutory instrument, to an administrator of a council includes, unless the context otherwise requires, a reference to an interim administrator.

438Z   Termination of suspension

(1)  The Minister may, by order published in the Gazette, terminate the suspension of a council under this Part.
(2)  The Minister is to terminate the suspension of a council under this Part no later than 30 days after the inquiry report date, unless the council is dismissed on or before that date.
(3)  However, a failure to terminate the suspension within that 30-day period does not affect the validity of an order terminating the suspension that is made after that 30-day period.
(4)  For the purposes of this section, the inquiry report date is the date the report of the person or persons who held the public inquiry is provided to the Governor or the Minister, as the case requires.

438ZA   Ordinary election during suspension period

If an ordinary election of councillors of a council is held during the period in which the council is suspended under this Part, a suspension under this Part:
(a)  is taken to continue after that election, even if it would otherwise have ended, and
(b)  is taken to end immediately before the first meeting of the council after the election.

438ZB   Election of mayor during suspension period

(1)  An election of the mayor by councillors is not required to be held during a period in which the council is suspended under this Part.
(2)  However, any election that would, but for this section, be required to be held during a period in which the council is suspended must instead be held within 14 days after the suspension ends.
(3)  Subsection (2) does not apply if the suspension ends because the council is dismissed or if an ordinary election of councillors is held before the suspension ends.

438ZC   Issue of performance improvement orders in response to public inquiry

(1)  A performance improvement order may be issued in response to the results of a public inquiry in relation to a council.
(2)  For the purposes of this Act, a performance improvement order is taken to be issued in response to the results of a public inquiry if:
(a)  a public inquiry in relation to a council is held, and
(b)  the performance improvement order specifies, in the reasons why the Minister has decided to issue the order, that it has been issued in response to the results of the public inquiry.
Note. Under section 255, the Minister may, after considering whether the council has complied with the performance improvement order, recommend that the council be dismissed.

Part 9 General

438ZD   Service of Ministerial and departmental documents

(1)  Any order, notice or other document that the Minister or Director-General is required to serve on or give to a council or a person under this Chapter may be served on or given to the council or person by electronic means if the council or person has given the Department an email address for the service of documents.
(2)  Service is effected when a copy of the order, notice or other document is sent to that email address.
(3)  This section does not prevent service by post or by any other method permitted by or under this Act.

Chapter 14 Honesty and disclosure of interests

Introduction. This Chapter places obligations on councillors, council delegates, staff of councils and administrators of councils to act honestly and responsibly in carrying out their functions.

The Chapter also provides for the adoption of codes of conduct for councillors, staff and other persons associated with the functions of councils and enables the Director-General to investigate and take action against councillors who engage in misconduct. However, the Chapter does not affect any other duties imposed by other laws or any offences created by other laws.

It also requires that pecuniary interests of councillors, council delegates and other persons involved in making decisions or giving advice on council matters be publicly recorded and requires councillors and staff to refrain from taking part in decisions on council matters in which they have a pecuniary interest.

The Chapter enables any person to make a complaint concerning a failure to disclose a pecuniary interest and provides for the investigation of complaints.

The Chapter also empowers the Civil and Administrative Tribunal to conduct hearings into complaints and to take disciplinary action against a person if a complaint against the person is found to be proved.

Part 1 Conduct

Division 1 Conduct generally

439   Conduct of councillors, staff, delegates and administrators

(1)  Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.
(2)  Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.
(3)  This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.

440   Codes of conduct

(1)  The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils.
(2)  Without limiting what may be included in the model code, the model code may:
(a)  relate to any conduct (whether by way of act or omission) of a councillor, member of staff or delegate in carrying out his or her functions that is likely to bring the council or holders of civic office into disrepute, and
(b)  in particular, contain provisions for or with respect to conduct specified in Schedule 6A.
(3)  A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code.
(4)  A council’s adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being.
(5)  Councillors, members of staff and delegates of a council must comply with the applicable provisions of:
(a)  the council’s adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and
(b)  the model code as in force for the time being, to the extent that:
(i)  the council has not adopted a code of conduct, or
(ii)  the adopted code is inconsistent with the model code, or
(iii)  the model code contains provisions or requirements not included in the adopted code.
(6)  A provision of a council’s adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement.
(7)  A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section.
(8)  Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, but nothing in this section affects rights or liabilities arising apart from this section.
(9)  This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.

440AA   Administration of code of conduct

(1)  The regulations may prescribe a procedure (the model procedure) for administering the model code referred to in section 440.
(2)  The model procedure is to set out the procedures for dealing with alleged contraventions of the model code.
(3)  A council must adopt a procedure (the adopted procedure) that incorporates the provisions of the model procedure. The adopted procedure may include provisions that supplement the model procedure.
(4)  A council’s adopted procedure has no effect to the extent that it is inconsistent with the model procedure as in force for the time being.
(5)  Councillors, members of staff and delegates of a council must comply with the applicable provisions of:
(a)  the council’s adopted procedure, except to the extent of any inconsistency with the model procedure as in force for the time being, and
(b)  the model procedure as in force for the time being, to the extent that:
(i)  the council has not adopted the model procedure, or
(ii)  the adopted procedure is inconsistent with the model procedure, or
(iii)  the model procedure contains provisions or requirements not included in the adopted procedure.
(6)  This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.

Division 2 Serious corrupt conduct

440A   Definition of “serious corrupt conduct”

In this Division:

serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being:

(a)  in the case of conduct of the holder of a civic office—conduct in connection with the exercise or purported exercise of the functions of the civic office, or
(b)  in the case of conduct of a member of staff of a council—conduct in connection with exercise or purported exercise of the duties of the member of staff.

440B   Dismissal from civic office for serious corrupt conduct

(1)  The Governor may dismiss a person from civic office and disqualify the person from holding civic office for a period not exceeding 5 years if:
(a)  the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious corrupt conduct, and
(b)  the person is suspended from the civic office by the Minister under this Division, and
(c)  the Minister advises the Governor that the dismissal of the person is necessary in order to protect the public standing of the council concerned and the proper exercise of its functions.
(2)  Before advising the Governor on a dismissal, the Minister is to give the person a reasonable opportunity to show cause why he or she should not be dismissed from civic office.

440C   Temporary suspension from civic office for serious corrupt conduct

(1)  The Minister may, without notice or inquiry, suspend a person from civic office:
(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious corrupt conduct, or
(b)  if criminal proceedings for serious corrupt conduct are instituted against the person, or
(c)  if the person makes an admission of serious corrupt conduct.
(2)  A person, while suspended from civic office under this section:
(a)  is not entitled to exercise any of the functions of the civic office, and
(b)  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of council facilities, to which the person would otherwise be entitled as the holder of the civic office.
(3)  A suspension under this section may be removed by the Minister at any time.
(4)  A suspension under this section is removed in the following circumstances:
(a)  if the person is not dismissed from civic office, or criminal proceedings in connection with the serious corrupt conduct are not instituted, within 6 months after the suspension,
(b)  in the case of a person against whom criminal proceedings are instituted in connection with the serious corrupt conduct—if the proceedings are withdrawn or dismissed.
(5)  If a suspension is removed, any fee or other remuneration withheld may (if the Minister so directs) be subsequently paid to the person concerned.

440D   Temporary suspension of staff in connection with serious corrupt conduct

(1)  The general manager may suspend a member of staff of a council from duty:
(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the member of staff from duty with a view to the institution of disciplinary or other proceedings against the member of staff for serious corrupt conduct, or
(b)  if criminal proceedings for serious corrupt conduct are instituted against the member of staff, or
(c)  if the member of staff makes an admission of serious corrupt conduct.
(2)  If the general manager so directs, a member of staff, while suspended from duty under this section, is not entitled to any salary or other remuneration to which the person would otherwise be entitled as a member of staff.
(3)  A suspension under this section may be removed by the general manager at any time.
(4)  A suspension under this section is removed in the following circumstances:
(a)  if disciplinary or criminal proceedings in connection with the serious corrupt conduct are not instituted within 6 months after the suspension,
(b)  in the case of a member of staff against whom disciplinary or criminal proceedings are instituted in connection with the serious corrupt conduct—if the proceedings are withdrawn or dismissed.
(5)  If a suspension is removed, any salary or other remuneration withheld may (if the general manager so directs) be subsequently paid to the member of staff.
(6)  The Minister may exercise the functions of the general manager under this section in connection with:
(a)  conduct of a general manager, or
(b)  conduct of any other member of staff (but only if the Minister is satisfied that the general manager has failed to act under this section without reasonable cause).
(7)  This section does not limit any other power to suspend a member of staff from duty.

440E   Application of Division

This Division applies to serious corrupt conduct, and to criminal proceedings instituted or admissions made in respect of serious corrupt conduct, before or after the commencement of this Division.

Division 3 Misconduct

440F   Definitions

(1)  In this Division:

misconduct of a councillor means any of the following:

(a)  a contravention by the councillor of this Act or the regulations,
(b)  a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440,
(c)  a failure by a councillor to comply with an order issued by the Director-General under this Division,
(d)  an act of disorder committed by the councillor at a meeting of the council or a committee of the council.

(2)  However, a contravention of the disclosure requirements of Part 2 is not misconduct.
Note. A contravention of the disclosure requirements of Part 2 is dealt with under other provisions of this Chapter.
(3)  A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.

440G   Formal censure of councillor for misconduct

(1)  A council may by resolution at a meeting formally censure a councillor for misconduct.
(2)  A formal censure resolution may not be passed except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council’s code of meeting practice.
(3)  A council may pass a formal censure resolution only if it is satisfied that the councillor has engaged in misconduct on one or more occasions.
(4)  The council must specify in the formal censure resolution the grounds on which it is satisfied that the councillor should be censured.
(5)  A motion for a formal censure resolution may, without limitation, be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.

440H   Director-General may investigate misconduct by a councillor

(1)  The Director-General may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct.
(2)  The Director-General may conduct such an investigation:
(a)  on his or her own initiative, or
(b)  if the general manager of a council refers an allegation of misconduct by a councillor to the Director-General, or
(c)  if a council, by resolution, refers an allegation of misconduct by a councillor to the Director-General, or
(d)  if the Ombudsman states in a report that the Ombudsman is satisfied that a councillor has or may have engaged in misconduct, or
(e)  if the Independent Commission Against Corruption states in a report that the Commission is satisfied that a councillor has or may have engaged in misconduct.
(3)  For the purpose of an investigation, the Director-General may, by order in writing served on any relevant person, direct the person to do any one or more of the following:
(a)  provide written information, by the date specified in the order, and to verify the information by statutory declaration,
(b)  produce, at a time and place specified in the order, any document specified in the order that is in the person’s custody or control.
Note. Failure to comply with the direction is an offence under section 661.
(4)  The Director-General may take copies of or extracts from any document to which the Director-General gains access under this section.
(5)  The Director-General may arrange for a departmental report to be prepared in relation to an investigation conducted under this section.
(6)  The preparation of a departmental report is a prerequisite to a decision by the Director-General to take disciplinary action against a councillor, unless the disciplinary action is taken on the basis of a report by the Ombudsman or Independent Commission Against Corruption.
(7)  This section authorises reports relating to misconduct to be made by the Ombudsman or Independent Commission Against Corruption and a reference to a report of the Ombudsman or Independent Commission Against Corruption is a reference to a report made to the Director-General under the authority of this subsection or under any other provision of this or any other Act.
(8)  The powers conferred on the Director-General by this section may also be exercised for the purposes of determining if an administrator has engaged in conduct that would be misconduct if the administrator were a councillor.
(9)  In this section:

administrator means an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66).

relevant person means a councillor, a member of staff of a council, a delegate of a council or an administrator.

440I   Director-General may take disciplinary action for misconduct

(1)  The Director-General may take disciplinary action against a councillor if the Director-General is satisfied that:
(a)  the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and
(b)  disciplinary action is warranted.
(2)  The Director-General may take one or more of the following actions (and any such action is disciplinary action):
(a)  counsel the councillor,
(b)  reprimand the councillor,
(c)  by order, direct the councillor to cease engaging in the misconduct,
(d)  by order, direct the councillor to apologise for the misconduct in the manner specified in the order,
(e)  by order, direct the councillor to undertake training,
(f)  by order, direct the councillor to participate in mediation,
(g)  by order, suspend the councillor from civic office for a period not exceeding 3 months,
(h)  by order, suspend the councillor’s right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 3 months (without suspending the councillor from civic office for that period).
(3)  In determining which disciplinary action, if any, to take against a councillor who has engaged in misconduct, the Director-General may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters.
(4)  The Director-General is to notify the councillor of any decision to take disciplinary action under this section and the reasons for the decision.
(5)  A copy of the decision and the statement of reasons for the decision are to be provided to the council.
(6)  The Director-General is to make any decision to suspend a councillor from civic office or to suspend a councillor’s right to be paid any fee or other remuneration under this section, and the statement of reasons for the decision, publicly available.
(7)  The Director-General may make any other decision to take disciplinary action against a councillor, and the statement of reasons for the decision, publicly available.
(8)  No liability (including liability in defamation) is incurred for making a decision publicly available as permitted or required by this section or for publishing in good faith a fair report or summary of such a decision.

440J   Alternatives to disciplinary action by the Director-General

(1)  The Director-General may before, during or after an investigation into an allegation of misconduct by a councillor decide to take no further action against the councillor, if satisfied that no further action is warranted.
(2)  The Director-General may, instead of taking disciplinary action against a councillor:
(a)  refer the matter to the council concerned with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise, or
(b)  refer the matter to the Civil and Administrative Tribunal for consideration.
(3)  A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Director-General. A report may contain or be accompanied by such material and observations as the Director-General thinks fit.
(4)  The Director-General is to notify the councillor concerned of any decision to refer the matter to the Tribunal.
(5)  The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.

440K   Suspension of a councillor

(1)  A councillor, while suspended from office under this Division:
(a)  is not entitled to exercise any of the functions of the civic office, and
(b)  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of council facilities, to which he or she would otherwise be entitled as the holder of the civic office.
(2)  The period of suspension under an order made by the Director-General commences on the date 7 days after the service of the order on the councillor or the date specified in the order for the commencement of the period of suspension, whichever is the later.

440L   Appeals against disciplinary action

(1)  A councillor against whom disciplinary action is taken by the Director-General may appeal to the Civil and Administrative Tribunal against the decision of the Director-General to take disciplinary action.
Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.
(2)  An appeal must be made within 28 days after the day on which the councillor is notified of the Director-General’s decision to take disciplinary action against the councillor.
(3)  The Tribunal may stay any decision made by the Director-General until such time as the Tribunal determines the appeal.
(4)  On hearing the appeal, the Tribunal may:
(a)  confirm the decision, or
(b)  amend the decision, or
(c)  set aside the decision and substitute a new decision.
(5)  If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Director-General.
(6)  If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councillor.
(7)  (Repealed)

440M   Expenses to be borne by council

(1)  The Director-General may recover from a council the reasonable expenses incurred by or in respect of the Department in the conduct of an investigation into a councillor of the council under this Division.
(2)  The Director-General may make a determination of the amount of the expenses referred to in subsection (1) and serve a notice on the council requiring the amount so determined be paid in recovery of the Department’s expenses.
(3)  An amount equal to the expenses as so determined is payable to the Department as a debt by the council concerned, except as determined by the Director-General.
(4)  The council may apply to the Civil and Administrative Tribunal for an administrative review of whether any part of the expenses so determined are not reasonable expenses.
(5)  The Director-General must give effect to any decision of the Tribunal on an administrative review of the determination of the amount of the expenses.
(6)  A reference in this section to expenses incurred includes a reference to remuneration paid to departmental staff.

440N   Investigation of former councillors

(1)  The Director-General may conduct an investigation for the purpose of determining whether a former councillor engaged in misconduct during the period in which the former councillor was a councillor.
(2)  For that purpose, sections 440H and 440M apply as if a reference in those sections to a councillor includes a reference to a former councillor.
(3)  The Director-General may before, during or after an investigation into an allegation of misconduct by a former councillor decide to refer the matter to the Civil and Administrative Tribunal for consideration.
(4)  Section 440J applies to the referral of the matter to the Tribunal in the same way as it applies to a referral of a matter relating to a councillor to the Tribunal.

440O   Self-incrimination

(1)  This section applies where, under section 440H, the Director-General directs a natural person to provide any information or produce any document for the purposes of an investigation.
(2)  A person is not excused from complying with the direction on the ground that the information or document might incriminate the person or make the person liable to a penalty.
(3)  If the information or document tends to incriminate the person and the person objects to providing the information or producing the document at the time, the fact of the direction or the information or document itself (if produced) may not be used in any criminal proceedings against the person (except in proceedings for an offence relating to the failure to produce a document or information or the production of a document or information that is false or misleading).
(4)  Despite any such objection, the information or document may be used in connection with an investigation and the taking of disciplinary action against the person under this Division and is admissible in proceedings under this Act relating to misconduct.

440P   Service of departmental documents

(1)  Any order, notice or other document that the Director-General is required to serve on or give to a person under this Division may be served on or given to the person by electronic means if the person has given the Department an email address for the service of documents.
(2)  Service is effected when a copy of the order, notice or other document is sent to that email address.
(3)  This section does not prevent service by post or by any other method permitted by or under this Act.

440Q   (Repealed)

Part 2 Duties of disclosure

Division 1 Preliminary

441   Who are “designated persons”?

For the purposes of this Chapter, designated persons are:
•  the general manager
•  other senior staff of the council
•  a person (other than a member of the senior staff of the council) who is a member of staff of the council or a delegate of the council and who holds a position identified by the council as the position of a designated person because it involves the exercise of functions under this or any other Act (such as regulatory functions or contractual functions) that, in their exercise, could give rise to a conflict between the person’s duty as a member of staff or delegate and the person’s private interest
•  a person (other than a member of the senior staff of the council) who is a member of a committee of the council identified by the council as a committee whose members are designated persons because the functions of the committee involve the exercise of the council’s functions under this or any other Act (such as regulatory functions or contractual functions) that, in their exercise, could give rise to a conflict between the member’s duty as a member of the committee and the member’s private interest.

442   What is a “pecuniary interest”?

(1)  For the purposes of this Chapter, a pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person.
(2)  A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter or if the interest is of a kind specified in section 448.

443   Who has a pecuniary interest?

(1)  For the purposes of this Chapter, a person has a pecuniary interest in a matter if the pecuniary interest is the interest of:
(a)  the person, or
(b)  the person’s spouse or de facto partner or a relative of the person, or a partner or employer of the person, or
(c)  a company or other body of which the person, or a nominee, partner or employer of the person, is a member.
Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.
(2)  (Repealed)
(3)  However, a person is not taken to have a pecuniary interest in a matter as referred to in subsection (1) (b) or (c):
(a)  if the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or
(b)  just because the person is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or
(c)  just because the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company or body.

444   What disclosures must be made by a councillor?

A councillor:
(a)  must prepare and submit written returns of interests in accordance with section 449, and
(b)  must disclose pecuniary interests in accordance with section 451.

445   What disclosures must be made by a designated person?

A designated person:
(a)  must prepare and submit written returns of interests in accordance with section 449, and
(b)  must disclose pecuniary interests in accordance with section 459.

446   What disclosures must be made by a member of a council committee?

A member of a council committee, other than a committee that is wholly advisory, must disclose pecuniary interests in accordance with section 451.

447   What disclosures must be made by council advisers?

A person giving advice to the council at a council or council committee meeting must disclose pecuniary interests in accordance with section 456.

448   What interests do not have to be disclosed?

The following interests do not have to be disclosed for the purposes of this Part:
(a)  an interest as an elector,
(b)  an interest as a ratepayer or person liable to pay a charge,
(c)  an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to the public generally, or to a section of the public that includes persons who are not subject to this Part,
(d)  an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to a relative of the person by the council in the same manner and subject to the same conditions as apply to persons who are not subject to this Part,
(e)  an interest as a member of a club or other organisation or association, unless the interest is as the holder of an office in the club or organisation (whether remunerated or not),
(f)  an interest of a member of a council committee as a person chosen to represent the community or as a member of a non-profit organisation or other community or special interest group if the committee member has been appointed to represent the organisation or group on the committee,
(g)  an interest in a proposal relating to the making, amending, altering or repeal of an environmental planning instrument other than an instrument that effects a change of the permissible uses of:
(i)  land in which the person or a person, company or body referred to in section 443 (1) (b) or (c) has a proprietary interest (which, for the purposes of this paragraph, includes any entitlement to the land at law or in equity and any other interest or potential interest in the land arising out of any mortgage, lease, trust, option or contract, or otherwise), or
(ii)  land adjoining, adjacent to or in proximity to land referred to in subparagraph (i),
if the person or the person, company or body referred to in section 443 (1) (b) or (c) would by reason of the proprietary interest have a pecuniary interest in the proposal,
(h)  an interest relating to a contract, proposed contract or other matter if the interest arises only because of a beneficial interest in shares in a company that does not exceed 10 per cent of the voting rights in the company,
(i)  an interest of a person arising from the proposed making by the council of an agreement between the council and a corporation, association or partnership, being a corporation, association or partnership that has more than 25 members, if the interest arises because a relative of the person is a shareholder (but not a director) of the corporation or is a member (but not a member of the committee) of the association or is a partner of the partnership,
(j)  an interest of a person arising from the making by the council of a contract or agreement with a relative of the person for or in relation to any of the following, but only if the proposed contract or agreement is similar in terms and conditions to such contracts and agreements as have been made, or as are proposed to be made, by the council in respect of similar matters with other residents of the area:
(i)  the performance by the council at the expense of the relative of any work or service in connection with roads or sanitation,
(ii)  security for damage to footpaths or roads,
(iii)  any other service to be rendered, or act to be done, by the council by or under any Act conferring functions on the council or by or under any contract,
(k)  an interest relating to the payment of fees to councillors (including the mayor and deputy mayor),
(l)  an interest relating to the payment of expenses and the provision of facilities to councillors (including the mayor and deputy mayor) in accordance with a policy under section 252,
(m)  an interest relating to an election to the office of mayor arising from the fact that a fee for the following 12 months has been determined for the office of mayor,
(n)  an interest of a person arising from the passing for payment of a regular account for wages or salary of an employee who is a relative of the person,
(o)  an interest arising from being covered by, or a proposal to be covered by, indemnity insurance as a councillor or member of a council committee,
(p)  an interest arising from appointment of a councillor to a body as representative or delegate of the council, whether or not a fee or other recompense is payable to the representative or delegate.
 

DISCLOSURE OF INTERESTS

How and when disclosed and nature of interests disclosed

Councillor

Member of council committee

Council advisor

General manager

Senior staff member

Staff member, delegate or committee member, holding “designated person” position (s 441)

• At meetings:
Pecuniary interests (ss 451, 456)

×

×

×

• In dealings with council matters:
Pecuniary interests (s 459)

×

×

×

PENALTIES FOR BREACH OF DISCLOSURE REQUIREMENTS (S 482)

Councillor

Committee member

Council adviser

Council employee

•  Counselling
•  Reprimand
•  Suspension from civic office for up to 6 months
•  Disqualification from civic office for up to 5 years

•  Counselling
•  Reprimand
•  Suspension from the committee for up to 6 months
•  Disqualification from membership of any council committee for up to 5 years

•  Counselling
•  Reprimand
•  Suspension as council advisor for up to 6 months
•  Disqualification as council advisor for up to 5 years

•  Counselling
•  Reprimand
•  Recommend taking of disciplinary action by the council
•  Recommend dismissal

Division 2 Disclosure of interests in written returns

449   Returns disclosing interests of councillors and designated persons

(1)  A councillor or designated person must complete and lodge with the general manager, within 3 months after becoming a councillor or designated person, a return in the form prescribed by the regulations.
(1A)  A person must not lodge a return that the person knows or ought reasonably to know is false or misleading in a material particular.
(2)  A person need not lodge a return within the 3-month period after becoming a councillor or designated person if the person lodged a return in that year or the previous year or if the person ceases to be a councillor or designated person within the 3-month period.
(3)  A councillor or designated person holding that position at 30 June in any year must complete and lodge with the general manager within 3 months after that date a return in the form prescribed by the regulations.
(4)  A person need not lodge a return within the 3-month period after 30 June in a year if the person lodged a return under subsection (1) within 3 months of 30 June in that year.
(5)  Nothing in this section prevents a councillor or designated person from lodging more than one return in any year.
(6)  Nothing in this section or the regulations requires a person to disclose in a return lodged under this section an interest of the person’s spouse or de facto partner or a relative of the person.

450   (Repealed)

450A   Register and tabling of returns

(1)  The general manager must keep a register of returns required to be lodged with the general manager under section 449.
(2)  Returns required to be lodged with the general manager under section 449 must be tabled at a meeting of the council, being:
(a)  in the case of a return lodged in accordance with section 449 (1)—the first meeting held after the last day for lodgement under that subsection, or
(b)  in the case of a return lodged in accordance with section 449 (3)—the first meeting held after the last day for lodgement under that subsection, or
(c)  in the case of a return otherwise lodged with the general manager—the first meeting after lodgement.

Division 3 Disclosure of pecuniary interests at meetings

451   Disclosure and presence in meetings

(1)  A councillor or a member of a council committee who has a pecuniary interest in any matter with which the council is concerned and who is present at a meeting of the council or committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.
(2)  The councillor or member must not be present at, or in sight of, the meeting of the council or committee:
(a)  at any time during which the matter is being considered or discussed by the council or committee, or
(b)  at any time during which the council or committee is voting on any question in relation to the matter.
(3)  For the removal of doubt, a councillor or a member of a council committee is not prevented by this section from being present at and taking part in a meeting at which a matter is being considered, or from voting on the matter, merely because the councillor or member has an interest in the matter of a kind referred to in section 448.
(4)  Subsections (1) and (2) do not apply to a councillor who has a pecuniary interest in a matter that is being considered at a meeting, if:
(a)  the matter is a proposal relating to:
(i)  the making of a principal environmental planning instrument applying to the whole or a significant part of the council’s area, or
(ii)  the amendment, alteration or repeal of an environmental planning instrument where the amendment, alteration or repeal applies to the whole or a significant part of the council’s area, and
(b)  the councillor made a special disclosure under this section in relation to the interest before the commencement of the meeting.
(5)  The special disclosure of the pecuniary interest must, as soon as practicable after the disclosure is made, be laid on the table at a meeting of the council and must:
(a)  be in the form prescribed by the regulations, and
(b)  contain the information required by the regulations.
Note. The code of conduct adopted by a council for the purposes of section 440 may also impose obligations on councillors, members of staff of councils and delegates of councils.

452   (Repealed)

453   Disclosures to be recorded

A disclosure made at a meeting of a council or council committee must be recorded in the minutes of the meeting.

454   General disclosure

A general notice given to the general manager in writing by a councillor or a member of a council committee to the effect that the councillor or member, or the councillor’s or member’s spouse, de facto partner or relative, is:
(a)  a member, or in the employment, of a specified company or other body, or
(b)  a partner, or in the employment, of a specified person,
is, unless and until the notice is withdrawn, sufficient disclosure of the councillor’s or member’s interest in a matter relating to the specified company, body or person that may be the subject of consideration by the council or council committee after the date of the notice.

455   (Repealed)

456   Disclosure by adviser

(1)  A person who, at the request or with the consent of the council or a council committee, gives advice on any matter at any meeting of the council or committee must disclose the nature of any pecuniary interest the person has in the matter to the meeting at the time the advice is given.
(2)  The person is not required to disclose the person’s interest as an adviser.

457   Circumstances in which secs 451 and 456 are not breached

A person does not breach section 451 or 456 if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

458   Powers of Minister in relation to meetings

The Minister may, conditionally or unconditionally, allow a councillor or a member of a council committee who has a pecuniary interest in a matter with which the council is concerned to be present at a meeting of the council or committee, to take part in the consideration or discussion of the matter and to vote on the matter if the Minister is of the opinion:
(a)  that the number of councillors prevented from voting would be so great a proportion of the whole as to impede the transaction of business, or
(b)  that it is in the interests of the electors for the area to do so.

Division 4 Disclosure of pecuniary interests in council dealings

459   Disclosure of pecuniary interests when dealing with council matters

(1)  A designated person must disclose in writing to the general manager (or if the person is the general manager, to the council) the nature of any pecuniary interest the person has in any council matter with which the person is dealing.
(1A)  However, subsection (1) does not require a designated person who is a member of staff of the council to disclose such a pecuniary interest if the interest relates only to the person’s salary as such a member of staff or to his or her other conditions of employment or the like.
(2)  The general manager must, on receiving a disclosure from a designated person, deal with the matter to which the disclosure relates or refer it to another person to deal with.
(3)  A disclosure by the general manager must, as soon as practicable after the disclosure is made, be laid on the table at a meeting of the council and the council must deal with the matter to which the disclosure relates or refer it to another person to deal with.

Part 3 Complaints concerning non-disclosure

 

Management of pecuniary interest complaints

Division 1 Making and investigation of complaints

460   Complaints concerning failure to disclose pecuniary interests

(1)  A person may make a complaint to the Director-General, or the Director-General may make a complaint, that a person has or may have contravened Part 2.
(2)  A complaint:
(a)  must be in writing, and
(b)  must identify the complainant and the person against whom the complaint is made, and
(c)  must give particulars of the grounds of the complaint, and
(d)  must be verified by statutory declaration, and
(e)  must be lodged with the Director-General.
(3)  The provisions of subsection (2) (b), in so far as they require a complaint to identify the complainant, (d) and (e) do not apply to a complaint made by the Director-General.

461   Director-General may require further information

The Director-General may require the complainant to provide further particulars of the complaint within the time specified by the Director-General.

462   Investigation of complaints

(1)  The Director-General may investigate a complaint.
(2)  The Director-General may refer a complaint for investigation to an authority, being the Ombudsman, the Independent Commission Against Corruption, the Commissioner of Police or the Director of Public Prosecutions, if the authority agrees to the referral. Such a referral may be made whether or not the Director-General has begun to investigate the complaint.
(3)  The Director-General may decide not to investigate a complaint but to authorise an investigation under section 430 in respect of a matter to which the complaint relates.

463   Decision not to investigate a complaint

(1)  The Director-General may decide to take no action concerning a complaint (including a complaint referred to in section 464 (2)) if the Director-General considers that the complaint falls into any of the following categories:
(a)  the complaint is frivolous, vexatious or not made in good faith,
(b)  the subject-matter of the complaint is trivial or does not warrant investigation,
(c)  the subject-matter of the complaint has been or is under investigation by some other competent person or body or has been or is the subject of legal proceedings,
(d)  the complaint raises issues that require investigation by another person or body,
(e)  there is or was, in relation to the matter complained of, a satisfactory alternative means of dealing with the matter by the complainant,
(f)  the complaint relates to a matter that occurred more than 2 years before the complaint was made and the complainant does not have a sufficient reason for having delayed the making of the complaint,
(g)  the complainant has failed to provide further particulars of the complaint within the time specified by the Director-General.
(2)  If the Director-General decides to take no action concerning a complaint (including a complaint referred to in section 464 (2)), the Director-General must notify the complainant and give the reasons for the decision.

464   Referral and investigation of complaints by other authorities

(1)  An authority who receives a matter (otherwise than from the Director-General) for the purpose of investigation is authorised by this Act to refer the matter to the Director-General if the matter involves a possible contravention of Part 2.
(2)  A matter referred to the Director-General under this section is taken to be a complaint made by the Director-General.

465   NCAT to be notified of investigations

The Director-General must notify the Civil and Administrative Tribunal of a decision to investigate a complaint or to refer a complaint for investigation to an authority.

466   Persons to be notified of complaint

(1)  The Director-General must, within 3 months after receiving a complaint, making a complaint or having a matter referred to the Director-General under section 464, give the person against whom the complaint is made notice of the nature of the complaint and whether any action has been, or is intended to be, taken concerning the complaint.
(2)  At the same time as notice is given to the person against whom the complaint is made, the Director-General must notify the complainant whether any action has been, or is intended to be, taken concerning the complaint. However, at the time the notice is given to the person against whom the complaint is made, the Director-General is not obliged to notify the complainant of the decision not to investigate a complaint if notice of that decision has already been given under section 463 (2).

467   Reports of investigation of complaints by authorities

An authority who has investigated an allegation that a person has or may have contravened Part 2 (whether or not the allegation was referred for investigation by the Director-General), is authorised by this Act to send any report prepared by the authority concerning the investigation to the Director-General.

468   Presentation of reports to NCAT

(1)  The Director-General must present a report to the Civil and Administrative Tribunal of an investigation into a complaint carried out by the Director-General.
(2)  The Director-General must present to the Civil and Administrative Tribunal any report received under section 467 from an authority.

Division 2 Proceedings before NCAT—pecuniary interest matters

469   NCAT to decide whether or not to conduct proceedings into a complaint

(1)  After considering a report presented to it in relation to a complaint, the Civil and Administrative Tribunal may decide to conduct proceedings into the complaint.
(2)  If the Civil and Administrative Tribunal decides not to conduct proceedings into a complaint, it must provide a written statement of its decision, and the reasons for its decision:
(a)  to the person against whom the complaint was made, and
(b)  to the person who made the complaint, and
(c)  to the Director-General.
(3)  (Repealed)

470   Circumstances in which NCAT may dispense with hearing

(1)  After considering the report of the Director-General and any other document or other material lodged with or provided to the Tribunal, the Civil and Administrative Tribunal may determine the proceedings without a hearing if:
(a)  the person who made the complaint and the person against whom the complaint is made have agreed that the proceedings may be determined without a hearing, and
(b)  there are no material facts in dispute between the person who made the complaint and the person against whom the complaint is made, and
(c)  in the opinion of the Tribunal, public interest considerations do not require a hearing.
(2)  (Repealed)

Division 3 Proceedings before NCAT—misconduct matters

470A   NCAT to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour

(1)  After considering a report presented to it under section 440J in relation to a referred matter, the Civil and Administrative Tribunal may decide to conduct proceedings into the matter.
(2)  If the Civil and Administrative Tribunal decides not to conduct proceedings into a referred matter, it must provide a written statement of its decision, and the reasons for its decision:
(a)  to the councillor to whom the report relates, and
(b)  to the council concerned, and
(c)  to the Director-General.
(3)  (Repealed)

470B   Circumstances in which NCAT may dispense with hearing

(1)  After considering a report presented to it under section 440J and any other document or other material lodged with or provided to the Tribunal in relation to the report, the Civil and Administrative Tribunal may determine the proceedings without a hearing if:
(a)  the Director-General and the councillor to whom the report relates have agreed that the proceedings may be determined without a hearing, and
(b)  there are no material facts in dispute between the Director-General and the councillor, and
(c)  in the opinion of the Tribunal, public interest considerations do not require a hearing.
(2)  (Repealed)

Division 4 Proceedings before NCAT—general provisions

471–477   (Repealed)

478   Additional complaints

(1)  The Civil and Administrative Tribunal may in proceedings before it deal with one or more complaints about a person.
(2)  If, during any such proceedings, it appears to the Civil and Administrative Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the person concerned:
(a)  whether instead of or in addition to the complaint which was made, and
(b)  whether or not by the same complainant,
the Civil and Administrative Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.
(3)  If another complaint is taken to have been referred to the Civil and Administrative Tribunal under subsection (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Civil and Administrative Tribunal, just and equitable in the circumstances.
(4)  If another complaint is taken to have been referred to the Civil and Administrative Tribunal under subsection (2), the Tribunal may do either or both of the following:
(a)  reconsider any decision under section 470 to determine proceedings on the original complaint without a hearing and, if appropriate, recommence proceedings in relation to that complaint, or that complaint and any additional complaint, by way of hearing,
(b)  decide, in accordance with section 470, to determine proceedings, in relation to the original complaint, any additional complaint or all complaints, without a hearing.
(5)  This section does not apply to proceedings in relation to a matter referred to the Civil and Administrative Tribunal under section 440J.

479–481   (Repealed)

482   Decision of NCAT—pecuniary interest matters

(1)  The Civil and Administrative Tribunal may, if it finds a complaint against a councillor is proved:
(a)  counsel the councillor, or
(b)  reprimand the councillor, or
(c)  suspend the councillor from civic office for a period not exceeding 6 months, or
(d)  disqualify the councillor from holding civic office for a period not exceeding 5 years, or
(e)  suspend the councillor’s right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period).
(2)  If it finds a complaint against an employee of the council is proved, the Civil and Administrative Tribunal may:
(a)  counsel the employee, or
(b)  reprimand the employee, or
(c)  recommend that the council take specified disciplinary action against the employee (including counselling or reprimanding the employee), or
(d)  recommend dismissal of the employee.
(3)  The Civil and Administrative Tribunal may, if it finds a complaint against a member of a council committee is proved:
(a)  counsel the member, or
(b)  reprimand the member, or
(c)  suspend the member from office as member of the committee for a period not exceeding 6 months, or
(d)  disqualify the member from holding office as a member of any committee of that council for a period not exceeding 5 years.
(4)  The Civil and Administrative Tribunal may, if it finds a complaint against an adviser to a council is proved:
(a)  counsel the adviser, or
(b)  reprimand the adviser, or
(c)  suspend the adviser from office as adviser for a period not exceeding 6 months, or
(d)  disqualify the adviser from holding office as an adviser to that council for a period not exceeding 5 years.
(5)  In determining which action, if any, to take against a person under this section, the Tribunal may take into account any previous complaints proved against the person, any action previously taken against the person and any other relevant matters.
(6)  To avoid doubt, a reference in subsection (1) to a councillor includes a reference to a former councillor.

482A   Decision of NCAT—misconduct matters

(1)  This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 440J.
(2)  The Tribunal may, if it finds that the behaviour concerned warrants action under this section:
(a)  counsel the councillor, or
(b)  reprimand the councillor, or
(c)  suspend the councillor from civic office for a period not exceeding 6 months, or
(c1)  disqualify the councillor from holding civic office for a period not exceeding 5 years, or
(d)  suspend the councillor’s right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period).
(3)  In determining which action, if any, to take against a councillor, the Tribunal may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters.
(4)  In this section, councillor includes a former councillor.

483–485   (Repealed)

486   Referral of matters by NCAT

Despite section 489 (1) and (1A), the Civil and Administrative Tribunal may refer a matter before it under this Act to an authority if it considers that it is more appropriate that the authority deal with the matter and if the authority agrees to the referral.

486A   Exclusive jurisdiction of NCAT over Part 2 contraventions

(1)  The Civil and Administrative Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of Part 2 of this Chapter.
(2)  Accordingly, proceedings at first instance to decide allegations of contraventions of Part 2 of this Chapter may not be brought before, or entertained by, any other tribunal or any court.

Part 4

487–490(Repealed)

Part 5 Miscellaneous

490A   Acts of disorder

For the purposes of this Chapter and Schedule 6A, a councillor commits an act of disorder if the councillor, at a meeting of the council or a committee of the council, does anything that is prescribed by the regulations as an act of disorder for the purposes of this Chapter and Schedule 6A.

490B   Certain regulations not affected

Nothing in this Chapter affects any regulations made, or the power to make regulations, with respect to the conduct of meetings of a council or a committee of a council, and in particular with respect to:
(a)  the keeping of order at any such meetings, or
(b)  censuring a councillor in connection with a breach of a council’s code of meeting practice.

Chapter 15 How are councils financed?

Introduction. The main sources of council finance are:
•  rates, of which there are 2 kinds
—  ordinary rates
—  special rates
•  charges
•  fees
•  grants
•  borrowings
•  income from business activities
•  income from land
•  income from other investments
•  sales of assets.

This Chapter deals mainly with the making and collection of the different kinds of rates and the imposition of charges.

Part 1 gives a general overview of the principles of rating and explains the relationship between ordinary rates, special rates and charges.

A council must make an ordinary rate each year. The amount of the ordinary rate may differ according to the category of the land to which it applies and it may differ according to sub-categories within those categories.

A council has a discretion whether it will make a special rate. Special rates may be levied for services provided by the council (such as water supply) or for special purposes.

A council has 2 choices in determining the structure of a rate (whether an ordinary rate for a category or sub-category of land or a special rate). It may decide that the rate is to be wholly an ad valorem rate (that is, an amount in the dollar that is to be applied uniformly to the rateable value of all rateable land in its area subject to the rate). It may decide, instead, that a rate is to have a 2-part structure. The first part is to be a base amount that will be the same for each parcel of rateable land subject to the rate. This base amount will be the amount that the council determines to be the basic contribution required to cover the general operating costs of the council or to cover the cost of providing the specific service or facilities to which it relates. The second part is to be an ad valorem amount. The 2 parts are added together to produce the amount of the rate to be paid in respect of the rateable parcel.

If a council makes a rate with a 2-part structure, the application of the base amount for the rate (or the category or sub-category of the rate) must not produce more than 50% of the total revenue derived from the rate (or the category or sub-category of the rate).

Special provisions are made for the rating of vacant land.

The Chapter also enables the making and collection of charges. A charge may be made in relation to specified services provided by a council (such as the provision of water, sewerage or drainage services or the collection of garbage). A charge may be set at a level that enables part or full cost recovery or, in some cases, that exceeds costs.

A council may impose charges in addition to ordinary rates and special rates or in substitution for special rates that may be made for the same purposes as a charge.

A charge, when made, has the same characteristics as a rate concerning payment, the accrual of interest (if the charge remains unpaid) and the procedures that may be taken for its recovery.

The reasonable cost to the council of providing domestic waste management services must not be recovered by the ordinary rate. It must be obtained from the making and levying of a charge.

Part 1 An overview of rates and charges

491   Some sources of a council’s income

A council may, in accordance with this Chapter, obtain income from:
•  rates
•  charges
•  fees
•  grants
•  borrowings
•  investments.

492   What are the types of rates?

The types of rates that can be made by a council are:
•  ordinary rates
•  special rates.

493   Categories of ordinary rates and categories of land

(1)  There are 4 categories of an ordinary rate and 4 categories of rateable land:
•  farmland
•  residential
•  mining
•  business.
(2)  These categories may, at a council’s discretion, be divided into sub-categories in accordance with section 529.

494   Ordinary rates must be made and levied annually

(1)  A council must make and levy an ordinary rate for each year on all rateable land in its area.
(2)  Each category or subcategory of ordinary rate is to apply only to land of the same category or subcategory.

495   Making and levying of special rates

(1)  A council may make a special rate for or towards meeting the cost of any works, services, facilities or activities provided or undertaken, or proposed to be provided or undertaken, by the council within the whole or any part of the council’s area, other than domestic waste management services.
(2)  The special rate is to be levied on such rateable land in the council’s area as, in the council’s opinion:
(a)  benefits or will benefit from the works, services, facilities or activities, or
(b)  contributes or will contribute to the need for the works, services, facilities or activities, or
(c)  has or will have access to the works, services, facilities or activities.
Note. Under section 495, a council could, for example make and levy:
•  different special rates for different kinds of works, services, facilities or activities
•  different special rates for the same kind of work, service, facility or activity in different parts of its area
•  different special rates for the same work in different parts of its area.

The amount of special rate will be determined according to the council’s assessment of the relationship between the cost or estimated cost of the work, service, facility or activity and the degree of benefit afforded to the ratepayer by providing or undertaking the work, service, facility or activity.

495A   Strata lots and company titles taken to be separate parcels of land for annual charges

For the purposes of making or levying an annual charge under section 496, 496A or 501:
(a)  each lot in a strata plan that is registered under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, and
(b)  each dwelling or portion of the kind referred to in section 547 (1),
is taken to be a separate parcel of rateable land.

496   Making and levying of annual charges for domestic waste management services

(1)  A council must make and levy an annual charge for the provision of domestic waste management services for each parcel of rateable land for which the service is available.
(2)  A council may make an annual charge for the provision of a domestic waste management service for a parcel of land that is exempt from rating if:
(a)  the service is available for that land, and
(b)  the owner of that land requests or agrees to the provision of the service to that land, and
(c)  the amount of the annual charge is limited to recovering the cost of providing the service to that land.

496A   Making and levying of annual charges for stormwater management services

(1)  A council may, in accordance with the regulations, make and levy an annual charge for the provision of stormwater management services for each parcel of rateable land for which the service is available.
(2)  Subsection (1) does not authorise or permit a council to make or levy an annual charge for the provision of stormwater management services for rateable land that is:
(a)  owned by the Crown, and
(b)  held under a lease for private purposes granted under the Housing Act 2001 or the Aboriginal Housing Act 1998.
Note. Section 555 (1) (a) provides that land owned by the Crown is not rateable land unless it is held under a lease for a private purpose.

496B   Making and levying of annual charges for coastal protection services

(1)  A council may, in accordance with this Act and the regulations, make and levy an annual charge for the provision by the council of coastal protection services for a parcel of rateable land that benefits from the services, being services that relate to coastal protection works constructed:
(a)  by or on behalf of the owner or occupier (or a previous owner or occupier) of the parcel of land, or
(b)  jointly by or on behalf of:
(i)  the owner or occupier (or a previous owner or occupier) of the parcel of land, and
(ii)  a public authority or a council.
(2)  An annual charge for the provision of coastal protection services must be calculated so as to not exceed the reasonable cost to the council of providing those services (including any legal, insurance, engineering, surveying, project management, financing and similar costs associated with providing those services).
Note. The coastal protection services for which an annual charge may be made and levied are services:
(a)  to maintain and repair coastal protection works, or
(b)  to manage the impacts of such works (such as changed or increased beach erosion elsewhere).

See the definition of coastal protection service in the Dictionary.

(3)  If a person is aggrieved by the amount of the annual charge, the person may appeal to the Land and Environment Court and that Court may determine the amount.
(4)  The fact that an appeal is pending does not in the meantime affect the levying of the annual charge to which the appeal relates and the charge may be recovered as if no appeal were pending.
(5)  If a person’s appeal is, in whole or in part, successful, the council must refund any amount paid in excess of a requirement for payment under this Act.
(6)  If the Land and Environment Court, in the course of determining an appeal under subsection (3), determines the reasonable cost to the council of providing coastal protection services in relation to particular coastal protection works, that determination is binding in relation to the calculation of the annual charge for all other parcels of land that benefit from those same services.
(7)  For the avoidance of doubt, a parcel of land benefits from the provision of coastal protection services even if:
(a)  the services relate to private coastal protection works (such as a seawall) wholly on the parcel or on a neighbouring parcel of private land, or
(b)  the services are carried out on land that is outside the council’s area.
(8)  Subsection (1) does not authorise or permit a council to make or levy an annual charge for the provision of coastal protection services for rateable land that is held under a lease for private purposes granted under the Aboriginal Housing Act 1998 or the Housing Act 2001.
(9)  The Minister administering the Coastal Protection Act 1979 is to issue guidelines relating to the making and levying of charges under this section. A council is to have regard to any such guidelines when making and levying such charges.

497   What is the structure of a rate?

A rate, whether an ordinary rate or a special rate, may, at a council’s discretion, consist of:
(a)  an ad valorem amount (which may, in accordance with section 548, be subject to a minimum amount of the rate), or
(b)  a base amount to which an ad valorem amount is added.

498   The ad valorem amount

(1)  The ad valorem amount of a rate is an amount in the dollar determined for a specified year by the council and expressed to apply:
(a)  in the case of an ordinary rate—to the land value of all rateable land in the council’s area within the category or sub-category of the ordinary rate, or
(b)  in the case of a special rate—to the land value of all rateable land in the council’s area or such of that rateable land as is specified by the council in accordance with section 538.
(2)  The ad valorem amount of a rate is to be levied on the land value of rateable land, except as provided by this or any other Act.
(3)  An ad valorem amount specified for a parcel of land may not differ from an ad valorem amount specified for any other parcel of land within the same category or subcategory unless:
(a)  the land values of the parcels were last determined by reference to different base dates, and
(b)  the Minister approves the different ad valorem amounts.
Note. Land value is defined in the Dictionary for this Act. Generally, it is a value determined specially for rating purposes by the Valuer-General under the Valuation of Land Act 1916.

A value other than land value may be used, for example, under section 127 of the Heritage Act 1977.

499   The base amount

(1)  A council may, in a resolution making a rate, specify a base amount of the rate, or a base amount for a category or sub-category of an ordinary rate.
(2)  The base amounts so specified may be the same or different amounts.
(3)  The appropriate base amount so specified is to form part of the rate levied on each separate parcel of rateable land subject to the rate.
(4)  A base amount specified for a parcel of land may not differ from a base amount specified for any other parcel of land within the same category or subcategory unless:
(a)  the land values of the parcels were last determined by reference to different base dates, and
(b)  the Minister approves the different base amounts.

500   Limit on revenue that can be raised from base amount

The amount specified as the base amount of a rate (or the base amount of the rate for a category or sub-category of an ordinary rate) must not be such as to produce more than 50 per cent of the total amount payable by the levying of the rate (or of the rate for the category or sub-category concerned) on all rateable land subject to the rate (or the rate for the category or sub-category concerned).

501   For what services can a council impose an annual charge?

(1)  A council may make an annual charge for any of the following services provided, or proposed to be provided, on an annual basis by the council:
•  water supply services
•  sewerage services
•  drainage services
•  waste management services (other than domestic waste management services)
•  any services prescribed by the regulations.
(2)  A council may make a single charge for two or more such services.
(3)  An annual charge may be levied on each parcel of rateable land for which the service is provided or proposed to be provided.

502   Charges for actual use

A council may make a charge for a service referred to in section 496 or 501 according to the actual use of the service.

503   What is the relationship between rates and charges?

(1)  A charge may be made:
(a)  in addition to an ordinary rate, and
(b)  in addition to or instead of a special rate.
(2)  If land is not rateable to a special rate for a particular service, a council may not levy a charge in respect of that land relating to the same service, unless the charge is limited to recovering the cost of providing the service to that land.

504   Domestic waste management services

(1)  A council must not apply income from an ordinary rate towards the cost of providing domestic waste management services.
(1A)  Subsection (1) does not prevent income from an ordinary rate from being lent (by way of internal loan) for use by the council in meeting the cost of providing domestic waste management services.
(2)  Income to be applied by a council towards the cost of providing domestic waste management services must be obtained from the making and levying of annual charges or the imposition of charges for the actual use of the service, or both.
(3)  Income obtained from charges for domestic waste management must be calculated so as to not exceed the reasonable cost to the council of providing those services.

Part 2 Limit of annual income from rates and charges

505   Application of Part

This Part applies to:
(a)  general income, that is, income from ordinary rates, special rates and annual charges, other than:
(i)  water supply special rates and sewerage special rates, and
(ii)  charges for water supply services and sewerage services, and
(iii)  annual charges for waste management services, including annual charges for domestic waste management services, and
(iv)  annual charges referred to in section 611, and
(v)  annual charges for stormwater management services, and
(vi)  annual charges for coastal protection services, and
(b)  annual charges made and levied towards the cost of providing domestic waste management services, and
(c)  annual charges made and levied towards the cost of providing stormwater management services.

506   Variation of general income

The Minister may, by order published in the Gazette specify the percentage by which councils’ general income for a specified year may be varied.

507   Variation of annual charges for domestic waste management services

The Minister may, by order published in the Gazette:
(a)  specify the percentage by which the amounts of annual charges made by councils for domestic waste management services for a specified year may be varied, and
(b)  impose conditions with respect to the variation of those charges.

508   Orders under secs 506 and 507

(1)  The year specified in an order under section 506 or 507 may be the year in which the order is published in the Gazette or a later year.
(2)  The Minister may, by instrument in writing given to a council:
(a)  specify the percentage by which the council’s general income or the amount of an annual charge for domestic waste management services, or both, for a specified year (being the year in which the instrument is given or a later year) may be varied, and
(b)  impose conditions with respect to the variation of that percentage.
(3)  An instrument made under subsection (2) takes effect on the day it is signed by the Minister.
(4)  Subject to subsection (5), a percentage specified in an order under section 506 or 507 applies to all councils uniformly, but does not apply to a council specified (in the order by which the percentage is specified) as being a council to which the percentage does not apply.
(5)  A percentage specified in an order under section 506 or 507 for a year does not apply, and (if relevant) is taken never to have applied, to a council to which a percentage specified under subsection (2) for that year applies, whether the order specifying the percentage was made before, on or after the day on which the instrument specifying the percentage under subsection (2) was made.
(5A)  Subject to section 508A (6), a percentage specified in an order under section 506 or 507 for a year does not apply, and (if relevant) is taken never to have applied, to a council to which a determination under section 508A applies for that year, whether the order specifying the percentage was made before, on or after the day on which the determination was made.
(6)  The Minister may specify a percentage by way of increase or decrease or a nil percentage for the purposes of section 506 or 507 or this section.
(7)  The Minister may, by order published in the Gazette, specify that no limitation is to apply for the purposes of section 506 or 507 or this section for a specified year.

508A   Special variation over a period of years

(1)  The Minister may, by instrument in writing given to a council, determine that the council’s general income, or the amount of an annual charge for domestic waste management services provided by the council, or both, for a specified period consisting of two or more years, may be varied by a specified percentage over the whole period.
(2)  The specified period must not exceed 7 years, but this subsection does not prevent a further determination being made that takes effect after that period.
(3)  The determination may be made only on the application of the council made in accordance with any applicable guidelines issued by the Director-General under this Act.
(4)  The determination may include conditions with respect to the variation.
(5)  Without limiting subsection (4), the conditions of the determination may specify the percentage by which the council’s general income, or the amount of the annual charge for domestic waste management services provided by the council, may be varied for a specified year to which the determination applies.
(6)  If, for a year to which the determination applies in respect of:
(a)  the council’s general income—the percentage specified under section 506 for that year is greater than the percentage specified in the conditions of the determination, the percentage specified under that section in respect of the council’s general income is taken to be substituted for that specified in the conditions, or
(b)  the amount of the annual charge for domestic waste management services provided by the council—the percentage specified under section 507 for that year is greater than the percentage specified in the conditions of the determination, the percentage specified under that section in respect of the annual charge is taken to be substituted for that specified in the conditions.
(7)  Subject to any later variations made to the determination, if the percentage (the general percentage) specified under section 506 or 507 is substituted under subsection (6) for a year:
(a)  the percentage specified under this section for the whole period is taken to be increased by the amount necessary to take into account the increase due to the substitution of the general percentage for that year, and
(b)  the appropriate percentage for the remaining years is to be applied to the amount of the council’s general income, or of the annual charge for domestic waste management services provided by the council, taking into account the increase due to that substitution.
(8)  The Minister may, by instrument in writing served on the council:
(a)  vary the determination, including, for example, by varying or revoking any conditions of the determination or by including new conditions, or
(b)  revoke the determination.
(9)  The determination may be varied or revoked only:
(a)  on the application of the council made in accordance with any applicable guidelines issued by the Director-General under this Act, or
(b)  on the Minister’s own initiative if the Minister is satisfied that the council has contravened any conditions of the determination or any applicable guidelines issued by the Director-General under this Act.

509   Maximum general income for a year

(1)  A council must not make rates and charges for a year so as to produce general income of an amount that exceeds the notional general income of the council for the previous year as varied by the percentage (if any) applicable to the council under section 506, 508 (2) or 508A for the year for which the rates and charges are made, except as provided by section 511 or 511A.
(2)  The notional general income of a council for the previous year is the amount that would have been derived if the same rates and charges as were made to produce the general income for that previous year had been so made but, in the case of rates, had been made in respect of:
(a)  the valuations of rateable land in the council’s valuation record applicable as at 1 July in that previous year and required under this Act to be used in that previous year for the making and levying of rates (not including valuations of those parcels of rateable land for which supplementary valuations referred to in paragraph (b) have been furnished), and
(b)  supplementary valuations of rateable land having the same base date as those valuations and furnished to the council under the Valuation of Land Act 1916 during that previous year, and
(c)  any estimates of increase in value of rateable land that are provided to the council under section 513 in respect of that previous year.

510   Maximum annual charge for domestic waste management services

(1)  A council must not make an annual charge for domestic waste management services for a parcel of rateable land that exceeds the annual charge for the parcel for the previous year as varied by the percentage (if any) applicable to the council under section 507, 508 (2) or 508A for the year for which the charge is made.
(2)  The annual charge for a parcel of land for a previous year:
(a)  in the case of a parcel for which a charge has been made for part of the year only, is taken to be the charge that was actually made, multiplied by 365 and divided by the number of days in respect of which the charge was made, and
(b)  in the case of a parcel for which no charge was actually made for the previous year, is taken to be the charge that was actually made for that year in relation to a comparable parcel of land (that is, a parcel of land of the same classification, of a similar size and in the same general locality).

510A   Maximum annual charge for stormwater management services

(1)  The regulations are to prescribe the maximum annual charge that a council may levy for the provision of stormwater management services for parcels of land in respect of which such a charge may be levied.
(2)  The annual charge for the provision of stormwater management services for a parcel of land in respect of which such a charge may be levied must not exceed the maximum annual charge prescribed by the regulations under subsection (1).

511   Catching up of shortfall in general income

(1)  If the rates and charges made by a council for a year that produce its general income produce an amount of general income that is less than the maximum amount permissible under section 509 for that year because the council did not apply a full percentage increase applicable to it under section 506, 508 (2) or 508A for the year for which the rates and charges were made, the council may make rates and charges for either or both of the next 2 years after the year for which the shortfall occurred so as to produce the maximum amount so permissible of the general income plus the whole or any part of the shortfall.
(2)  An amount of a shortfall caught up in accordance with this section may be caught up once only.

511A   Catching up of income lost due to reductions in valuation

(1)  This section applies to a council that cannot recover or retain a part of the maximum permissible general income determined under this Part for a year because, after the determination is made, a valuation used in making a rate is reduced on objection under Part 3, or appeal under Part 4, of the Valuation of Land Act 1916. The part of the maximum permissible general income that cannot be recovered or retained is referred to in this section as the unrecovered amount.
(2)  The council may increase the maximum permissible general income determined under this Part for a year by any unrecovered amount for a previous year.

512   Effect of contravening section 509, 510, 510A, 511 or 511A

(1)  If a council contravenes section 509, 510, 510A, 511 or 511A in making a rate or charge for a year:
(a)  the contravention does not affect the validity of the rate or charge, but
(b)  rates and charges made for the following year by the council are invalid for all purposes unless:
(i)  before the rates and charges were made the council submitted to the Minister such information respecting the rates and charges proposed to be made for that following year as the Minister may require and the Minister, by order published in the Gazette, approved of their being made, and
(ii)  the rates and charges conform with the Minister’s approval.
(iii)  (Repealed)
(2)  The Minister may, by order published in the Gazette, exempt a specified council from the operation of subsection (1) (b) for a specified year.
(3)  Section 712 does not prevent a person’s liability for a rate or charge that is invalid because of subsection (1) (b) from being disputed at any time on the ground of that invalidity.

513   Estimates of increases and decreases in value for purposes of notional rate income

(1)  A council may, at any time after 31 January in any year but before 31 May in that year, request the Valuer-General to provide:
(a)  estimates of increases and decreases in values for parcels of rateable land for which supplementary valuations are required to be furnished under the Valuation of Land Act 1916 but which, before the date of the request, have not been so furnished, and
(b)  estimates of increases and decreases in values for parcels of rateable land for which supplementary valuations have been or are required to be furnished under the Valuation of Land Act 1916 but which have or will have a different base date from those used for rating purposes for that year because of a general valuation furnished in that year for the council’s area.
(2)  The Valuer-General must provide the estimates within 1 month after the date of the request.
(3)  An estimate must be made with respect to the same base date as the valuations used for rating purposes for the year in which the request is made.
(4)  An estimate may relate to all parcels of rateable land of the class for which a kind of ordinary rate was made for the relevant year by the council.
 



Rates and Charges

Types

Levied on or payable by

Differentiation

Structure

Application

Ordinary rates (s 492)

All rateable land (ss 554, 555, 556)

4 Categories
(ss 493, 514)

• Wholly ad valorem or
• Base amount plus ad valorem (ss 497, 498, 499)

Base amount may yield up to 50% of income from rate, category or subcategory (s 500)

Ordinary rate must be made each year (s 494)

Ad valorem amount may be the same or different for categories (s 528) and the same or different for subcategories (s 529)

Special rate may be made in addition to ordinary rate (s 495 and see note to s 495)

Farmland
(s 515)

Residential
(s 516)

Mining
(s 517)

Business
(s 518)

Optional subcategories
(ss 493, 529)

• Intensity of land use
• Irrigability of the land
• Economic factors

• Rural
• Centre of population

• Kind of mining

• Centre of activity

Special rates (s 492)

Rateable land that

• benefits from works, etc
• contributes to need for works, etc
• has access to works, etc (ss 495, 498, 538)

• Works
• Services
• Facilities
• Activities
provided or undertaken, or proposed to be provided or undertaken, by the council within the whole or any part of its area (other than domestic waste management services)
(s 495)

Annual charges for domestic waste management services (s 496)

Each parcel of rateable land for which the service is available (s 496)

A council may determine differing amounts for the same charge
(s 541)

• Income from charges not to exceed reasonable cost to council of providing the service (s 504)
• Annual percentage increase on charge for individual property (s 510)

Charge must be made each year (s 496)

Other annual charges (s 501)

Each parcel of rateable land for which the service is provided or proposed to be provided (s 501)

• Water supply services
• Sewerage services
• Drainage services
• Waste management services (other than domestic waste management services)
• Stormwater management services
• Other services prescribed by the regulations (s 501)

A council may determine differing amounts for the same charge
(s 541)

Charge may be a single amount, a rate per unit, or a combination (s 540)

Charge may be of differing amounts (s 541)

A minimum amount may be fixed (s 542)

A single charge may be imposed for two or more services (s 501)

Criteria for determining amount (s 539)

Charge may be made

• in addition to ordinary rate and
• in addition to or instead of special rate (s 503)

Charges for actual use (s 502)

The user of the service (s 502)

According to the nature of the service

  

Part 3 Ordinary rates

514   Categorisation of land for purposes of ordinary rates

Before making an ordinary rate, the council must have declared each parcel of rateable land in its area to be within one or other of the following categories:
•  farmland
•  residential
•  mining
•  business.
Note. Land falls within the “business” category if it cannot be categorised as farmland, residential or mining. The main land uses that will fall within the “business” category are commercial and industrial.

515   Categorisation as farmland

(1)  Land is to be categorised as farmland if it is a parcel of rateable land valued as one assessment and its dominant use is for farming (that is, the business or industry of grazing, animal feedlots, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping, horticulture, vegetable growing, the growing of crops of any kind, forestry or aquaculture within the meaning of the Fisheries Management Act 1994, or any combination of those businesses or industries) which:
(a)  has a significant and substantial commercial purpose or character, and
(b)  is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made).
(2)  Land is not to be categorised as farmland if it is rural residential land.
(3)  The regulations may prescribe circumstances in which land is or is not to be categorised as farmland.

516   Categorisation as residential

(1)  Land is to be categorised as residential if it is a parcel of rateable land valued as one assessment and:
(a)  its dominant use is for residential accommodation (otherwise than as a hotel, motel, guest-house, backpacker hostel or nursing home or any other form of residential accommodation (not being a boarding house or a lodging house) prescribed by the regulations), or
(b)  in the case of vacant land, it is zoned or otherwise designated for use under an environmental planning instrument (with or without development consent) for residential purposes, or
(c)  it is rural residential land.
(1A)  For the purposes of this section, a boarding house or a lodging house means a building wholly or partly let as lodging in which each letting provides the tariff-paying occupant with a principal place of residence and in which:
(a)  each tariff charged does not exceed the maximum tariff for boarding houses or lodging houses for the time being determined by the Minister by order published in the Gazette for the purposes of this subsection, and
(b)  there are at least 3 tariff-paying occupants who have resided there for the last 3 consecutive months, or any period totalling 3 months during the last year,
and includes a vacant building that was so let immediately before becoming vacant, but does not include a residential flat building, licensed premises, a private hotel, a building containing serviced apartments or a backpacker hostel or other tourist establishment.
(2)  The regulations may prescribe circumstances in which land is or is not to be categorised as residential.

517   Categorisation as mining

(1)  Land is to be categorised as mining if it is a parcel of rateable land valued as one assessment and its dominant use is for a coal mine or metalliferous mine.
(2)  The regulations may prescribe circumstances in which land is or is not to be categorised as mining.

518   Categorisation as business

Land is to be categorised as business if it cannot be categorised as farmland, residential or mining.

518A   Strata lots and company titles taken to be separate parcels of land for categorisation

For the purposes of this Part:
(a)  each lot in a strata plan that is registered under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, and
(b)  each dwelling or portion of the kind referred to in section 547 (1),
is taken to be a separate parcel for the purposes of categorisation.

518B   Mixed development land

(1) Definitions
In this section, mixed development land and non-residential land have the same meanings as in section 14BB of the Valuation of Land Act 1916.
(2) Categorisation of parts of mixed development land
If a valuation is furnished under the Valuation of Land Act 1916 for mixed development land:
(a)  the part of the land that is non-residential land is taken to have been categorised as business, and
(b)  the part of the land that is not non-residential land is taken to have been categorised as residential,
despite sections 515–518.
(3) Sub-categories
The council may determine a sub-category for a part of land to which subsection (2) applies according to the category determined by that subsection for the part.
(4) Apportionment of rates and charges
A rate, the base amount of a rate, or the minimum amount of a rate or of a charge, that is made and levied according to categories or sub-categories of land is to apply to a parcel of mixed development land according to the percentages represented by the apportionment factor for the parcel ascertained under section 14X of the Valuation of Land Act 1916.

519   How is vacant land to be categorised?

If vacant land is unable to be categorised under section 515, 516 or 517, the land is to be categorised:
(a)  if the land is zoned or otherwise designated for use under an environmental planning instrument—according to any purpose for which the land may be used after taking into account the nature of any improvements on the land and the nature of surrounding development, or
(b)  if the land is not so zoned or designated—according to the predominant categorisation of surrounding land.

520   Notice of declaration of category

(1)  A council must give notice to each rateable person of the category declared for each parcel of land for which the person is rateable.
(2)  The notice must be in the approved form and must:
(a)  state that the person has the right to apply to the council for a review of the declaration that the land is within the category stated in the notice, and
(b)  state that the person has the right to appeal to the Land and Environment Court if dissatisfied with the council’s review, and
(c)  refer to sections 525 and 526.

521   When does the declaration of a category take effect?

A declaration that a parcel of land is within a particular category takes effect from the date specified for the purpose in the declaration.

522   When does the declaration of a category cease?

A declaration that a parcel of land is within a particular category ceases when a subsequent declaration concerning the land takes effect.

523   When are the declarations of categories reviewed?

(1)  A council need not annually review a declaration that a parcel of land is within a particular category, but may review a declaration:
(a)  as part of a general review of the categorisation of all or a number of parcels of land, or
(b)  because it has reason to believe that a parcel of land should be differently categorised.
(2)  A council must review a declaration if required to do so in accordance with section 525 by a person who is rateable in respect of a parcel of land to which the declaration applies.

524   Notice of change of category

A rateable person (or the person’s agent) must notify the council within 30 days after the person’s rateable land changes from one category to another.

525   Application for change of category

(1)  A rateable person (or the person’s agent) may apply to the council at any time:
(a)  for a review of a declaration that the person’s rateable land is within a particular category for the purposes of section 514, or
(b)  to have the person’s rateable land declared to be within a particular category for the purposes of that section.
(2)  An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within.
(3)  The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.
(4)  If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land.
(5)  The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application.
(6)  If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.

526   Appeal against declaration of category

(1)  A rateable person who is dissatisfied with:
(a)  the date on which a declaration is specified, under section 521, to take effect, or
(b)  a declaration of a council under section 525,
may appeal to the Land and Environment Court.
(2)  An appeal must be made within 30 days after the declaration is made.
(3)  The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.

527   Adjustment of rates following change in category

A council must make an appropriate adjustment of rates paid or payable by a rateable person following a change in category of land.

528   Rate may be the same or different for different categories

(1)  The ad valorem amount (the amount in the dollar) of the ordinary rate may be the same for all categories of land or it may be different for different categories.
(2)  The regulations may provide that the ad valorem amount of the ordinary rate for land categorised as mining is to be not more or less than a specified percentage of the ad valorem amount of the ordinary rate for land categorised as business. The regulations may apply to all councils or one or more councils specified in the regulations.

529   Rate may be the same or different within a category

(1)  Before making an ordinary rate, a council may determine a sub-category or sub-categories for one or more categories of rateable land in its area.
(2)  A sub-category may be determined:
(a)  for the category “farmland”—according to the intensity of land use, the irrigability of the land or economic factors affecting the land, or
(b)  for the category “residential”—according to whether the land is rural residential land or is within a centre of population, or
(c)  for the category “mining”—according to the kind of mining involved, or
(d)  for the category “business”—according to a centre of activity.
Note. In relation to the category “business”, a centre of activity might comprise a business centre, an industrial estate or some other concentration of like activities.
(3)  The ad valorem amount (the amount in the dollar) of the ordinary rate may be the same for all land within a category or it may be different for different sub-categories.
(4)  Land may be taken to be irrigable for the purposes of subsection (2) (a) if, and only if, it is the subject of a water right within the meaning of the Valuation of Land Act 1916.

530   (Repealed)

531   What provisions of this Part apply to the determination of sub-categories?

(1)  Sections 519–527 apply to the determination of sub-categories for a category of rateable land in the same way as those sections apply to the declaration of a category.
(2)  Notice of determination of a sub-category may be given in the same notice as the notice of declaration of a category.

Part 3A Charges

531A   Adjustment of charges following change in category

If the amount of a charge paid or payable by a person is determined by reference (or partly by reference) to a category or sub-category of land declared by the council under Part 3, the council must make an appropriate adjustment of the charge following a change in category or sub-category of the land.

531B   Aggregation of certain parcels subject to a charge

(1)  If the council is of the opinion that the levying of a charge:
(a)  would apply unfairly, and
(b)  could cause hardship to a person who is liable to the charge in respect of two or more separate parcels of land,
it may treat the parcels as being a single parcel and levy the charge accordingly.
(2)  Separate parcels may be treated as being a single parcel under this section only if each separate parcel is subject to the same category or sub-category declared by the council under Part 3.
(3)  A council must not treat separate parcels as being a single parcel under this section:
(a)  if each parcel is a parcel on which a dwelling is erected or a parcel that comprises (or substantially comprises) a dwelling in a residential flat building, or
(b)  if the parcels are a combination of parcels referred to in paragraph (a).

Part 4 Making of rates and charges

532   Publication of draft operational plan

A council must not make a rate or charge until it has given public notice (in accordance with section 405) of its draft operational plan for the year for which the rate or charge is to be made and has considered any matters concerning the draft operational plan (in accordance with that section).

533   Date by which a rate or charge must be made

A rate or charge must be made before 1 August in the year for which the rate or charge is made or before such later date in that year as the Minister may, if the Minister is of the opinion that there are special circumstances, allow.

534   Rate or charge to be made for a specified year

Each rate or charge is to be made for a specified year, being the year in which the rate or charge is made or the next year.

535   Rate or charge to be made by resolution

A rate or charge is made by resolution of the council.

536   What criteria are relevant in determining the base amount?

(1)  In determining a base amount of a rate, the council must have regard to (but is not limited to) the following:
•  its general administration and overhead costs
•  the extent to which projected ad valorem rates on individual properties do not reflect the cost of providing necessary services and facilities
•  the level of grant or similar income available to provide necessary services and facilities
•  the degree of congruity and homogeneity between the values of properties subject to the rate and their spread throughout the area
•  whether a rate that is wholly an ad valorem rate would result in an uneven distribution of the rate burden because a comparatively high proportion of assessments would bear a comparatively low share of the total rate burden
•  in the case of a special rate—the cost of providing the works, services, facilities or activities to the parcels of land subject to the rate (ignoring the rateable value of those parcels).
(2)  The council, in having regard to its general administration and overhead costs, must use net costs, with income being included in the calculation of standard costs for all community service functions, library services, recreational and cultural facilities and amenities and the like.

537   Form of resolution specifying base amounts of rates

In the resolution that specifies a base amount of a rate, or the base amount of a rate for a category or sub-category of an ordinary rate, the council must state:
(a)  the amount in dollars of the base amount, and
(b)  the percentage, in conformity with section 500, of the total amount payable by the levying of the rate, or the rate for the category or sub-category concerned of the ordinary rate, that the levying of the base amount will produce.

538   Form of resolution for special rate

(1)  In the resolution that makes a special rate, the council must state whether the special rate is to be levied on all rateable land in the council’s area or on only a part of that land.
(2)  If the special rate is to be levied on only a part of that land, the council must specify in the resolution the part on which it is to be levied.

539   What criteria are relevant in determining the amount of a charge?

(1)  In determining the amount of a charge for a service, the council may have regard to (but is not limited to) the following:
•  the purpose for which the service is provided
•  the nature, extent and frequency of the service
•  the cost of providing the service
•  the categorisation for rating purposes of the land to which the service is provided
•  the nature and use of premises to which the service is provided
•  the area of land to which the service is provided
•  in the case of water supply services—the quantity of water supplied.
(2)  The amount of a charge need not be limited to recovering the cost of providing the service for which the charge is made, except as provided by sections 503 (2) and 504 (3).

540   Form of charge

The amount of a charge may be expressed as a single amount or as a rate per unit or as any combination of them.
Note. For example, the amount of a charge for a water supply service could be a fixed amount, a rate per kilolitre, or a combination of them.

541   Differing amounts of a charge

A council may determine differing amounts for the same charge.

542   Minimum amounts of charges

A council may, in a resolution making a charge, specify a minimum amount of the charge or, if the council has determined differing amounts for the same charge, minimum amounts for each such differing amount.

543   Each form of rate and each charge to have its own name

(1)  A council must, when making an ordinary rate, give a short separate name for each amount of the ordinary rate.
(2)  A council must, when making a special rate, give the special rate a short name.
(3)  A council must, when making a charge, give a short separate name for each amount of the charge.
Note. The names given to the ordinary rate could include names like:

Farmland—Ordinary

Farmland—Poultry farms

Residential—A

Residential—B

The names given to special rates could include names like:

Upper Smithtown water rate

Lower Smithtown water rate

Leisure centre—primary rate

Leisure centre—secondary rate

The names given to charges could include names like:

Waste management services—domestic

Waste management services—commercial

544   Inclusion of names in rates and charges notices

A council must include the name of each rate and charge, in full or in an abbreviated form, in the rates and charges notice by which the rate or charge is levied.

545   Curing of irregularities

(1)  The Minister may authorise a council to do such things as may be necessary to cure an irregularity in the making or levying of a rate or charge.
(2)  The Minister may declare, by order published in the Gazette, that a rate or charge that would otherwise be invalid because of a provision of this Part is taken to have been validly made from the time it purported to have been made. Such an order has effect according to its tenor.
(3)  The Minister may not make such an order unless, in the Minister’s opinion, the rate or charge concerned is invalid only because of a minor and technical breach of one or more of the provisions of this Part.
(4)  The Minister may make such an order even though proceedings in relation to the validity have commenced.
 



Some steps relating to the making of rates and charges

    

Council requests Valuer-General to estimate increase in value of land subject to supplementary valuations. (This may be done after 31 January but before 31 May)

s 513

    
      
    

Minister specifies % (if any) by which last year’s general income and annual charges for domestic waste management services are to vary

s 506

    
      
    

Council prepares draft operational plan which includes the council’s revenue policy for the next year

s 405

    
      
    

Council publicly exhibits draft operational plan

s 405 (3)

    

Public notice of draft operational plan for not less than 28 days

ss 405 (3), 532

    

Council considers submissions concerning draft operational plan

ss 405 (5), 706 (2)

   

Council adopts operational plan

s 405 (1)

     
     
   

Council makes rates and charges by resolution

ss 535, 537, 538

     

1 July

    
    
     

1 Aug

   

Final day for making of rates and charges for current year (unless Minister allows a later day)

s 533