Division 1 Guidelines for the categorisation of community land
101 Application of this Division
(1) This Division sets out guidelines for the categorisation of community land.(2) A council that is preparing a draft plan of management under section 36 of the Act must have regard to the guidelines set out in this Division.
102 Guidelines for categorisation of land as a natural area
Land should be categorised as a natural area under section 36 (4) of the Act if the land, whether or not in an undisturbed state, possesses a significant geological feature, geomorphological feature, landform, representative system or other natural feature or attribute that would be sufficient to further categorise the land as bushland, wetland, escarpment, watercourse or foreshore under section 36 (5) of the Act.Note. Section 36A of the Act provides that community land that has been declared a critical habitat under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994 must be categorised as a natural area.Section 36B of the Act provides that community land all or part of which is directly affected by a recovery plan or threat abatement plan under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994 must be categorised as a natural area.
Section 36C of the Act provides that community land that is the site of a known natural, geological, geomorphological, scenic or other feature that is considered by the council to warrant protection or special management considerations, or that is the site of a wildlife corridor, must be categorised as a natural area.
103 Guidelines for categorisation of land as a sportsground
Land should be categorised as a sportsground under section 36 (4) of the Act if the land is used or proposed to be used primarily for active recreation involving organised sports or the playing of outdoor games.
104 Guidelines for categorisation of land as a park
Land should be categorised as a park under section 36 (4) of the Act if the land is, or is proposed to be, improved by landscaping, gardens or the provision of non-sporting equipment and facilities, for use mainly for passive or active recreational, social, educational and cultural pursuits that do not unduly intrude on the peaceful enjoyment of the land by others.
105 Guidelines for categorisation of land as an area of cultural significance
Land should be categorised as an area of cultural significance under section 36 (4) of the Act if the land is:(a) an area of Aboriginal significance, because the land:(i) has been declared an Aboriginal place under section 84 of the National Parks and Wildlife Act 1974, or(ii) whether or not in an undisturbed state, is significant to Aboriginal people in terms of their traditional or contemporary cultures, or(iii) is of significance or interest because of Aboriginal associations, or(iv) displays physical evidence of Aboriginal occupation (for example, items or artifacts such as stone tools, weapons, engraving sites, sacred trees, sharpening grooves or other deposits, and objects or materials that relate to the settlement of the land or place), or(v) is associated with Aboriginal stories, or(vi) contains heritage items dating after European settlement that help to explain the relationship between Aboriginal people and later settlers, or(b) an area of aesthetic significance, by virtue of:(i) having strong visual or sensory appeal or cohesion, or(ii) including a significant landmark, or(iii) having creative or technical qualities, such as architectural excellence, or(c) an area of archaeological significance, because the area contains:(i) evidence of past human activity (for example, below-ground features such as building foundations, occupation deposits, features or artifacts or above-ground features such as buildings, works, industrial structures, and relics, whether intact or ruined), or(ii) any other deposit, object or material that relates to the settlement of the land, or(d) an area of historical significance, because of the importance of an association or position of the land in the evolving pattern of Australian cultural history, or(e) an area of technical or research significance, because of the area’s contribution to an understanding of Australia’s cultural history or environment, or(f) an area of social significance, because of the area’s association with Aboriginal life after 1788 or the area’s association with a contemporary community for social, spiritual or other reasons.
106 Guidelines for categorisation of land as general community use
Land should be categorised as general community use under section 36 (4) of the Act if the land:(a) may be made available for use for any purpose for which community land may be used, whether by the public at large or by specific sections of the public, and(b) is not required to be categorised as a natural area under section 36A, 36B or 36C of the Act and does not satisfy the guidelines under clauses 102–105 for categorisation as a natural area, a sportsground, a park or an area of cultural significance.
107 Guidelines for categorisation of land as bushland
(1) Land that is categorised as a natural area should be further categorised as bushland under section 36 (5) of the Act if the land contains primarily native vegetation and that vegetation:(a) is the natural vegetation or a remainder of the natural vegetation of the land, or(b) although not the natural vegetation of the land, is still representative of the structure or floristics, or structure and floristics, of the natural vegetation in the locality.(2) Such land includes:(a) bushland that is mostly undisturbed with a good mix of tree ages, and natural regeneration, where the understorey is comprised of native grasses and herbs or native shrubs, and that contains a range of habitats for native fauna (such as logs, shrubs, tree hollows and leaf litter), or(b) moderately disturbed bushland with some regeneration of trees and shrubs, where there may be a regrowth area with trees of even age, where native shrubs and grasses are present in the understorey even though there may be some weed invasion, or(c) highly disturbed bushland where the native understorey has been removed, where there may be significant weed invasion and where dead and dying trees are present, where there is no natural regeneration of trees or shrubs, but where the land is still capable of being rehabilitated.
108 Guidelines for categorisation of land as wetland
Land that is categorised as a natural area should be further categorised as wetland under section 36 (5) of the Act if the land includes marshes, mangroves, backwaters, billabongs, swamps, sedgelands, wet meadows or wet heathlands that form a waterbody that is inundated cyclically, intermittently or permanently with fresh, brackish or salt water, whether slow moving or stationary.
109 Guidelines for categorisation of land as an escarpment
Land that is categorised as a natural area should be further categorised as an escarpment under section 36 (5) of the Act if:(a) the land includes such features as a long cliff-like ridge or rock, and(b) the land includes significant or unusual geological, geomorphological or scenic qualities.
110 Guidelines for categorisation of land as a watercourse
Land that is categorised as a natural area should be further categorised as a watercourse under section 36 (5) of the Act if the land includes:(a) any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel that has been artificially improved, or in an artificial channel that has changed the course of the stream of water, and any other stream of water into or from which the stream of water flows, and(b) associated riparian land or vegetation, including land that is protected land for the purposes of the Rivers and Foreshores Improvement Act 1948 or State protected land identified in an order under section 7 of the Native Vegetation Conservation Act 1997.
111 Guidelines for categorisation of land as foreshore
Land that is categorised as a natural area should be further categorised as foreshore under section 36 (5) of the Act if the land is situated on the water’s edge and forms a transition zone between the aquatic and terrestrial environment.
Division 2 Preparation and adoption of draft plans of management for community land
112 Consultation concerning categorisation of land as an area of cultural significance
(1) A council that is considering whether or not land is an area of Aboriginal significance (within the meaning of clause 105 (a)) must give notice of that consideration to Aboriginal people traditionally associated with the area in which the land is situated.(2) That notice must be given by:(a) giving written notice to the following:(i) the Local Aboriginal Land Council for the area concerned,(ii) New South Wales Native Title Services Limited (ACN 098 971 209),(iii) the Registrar appointed under the Aboriginal Land Rights Act 1983,(iv) the Director-General of the Department of Aboriginal Affairs,(v) the Director-General of the Department of Environment and Conservation, and(b) placing an advertisement in a newspaper circulating across the State that is primarily concerned with issues of interest to Aboriginal people, and(c) placing a written notice on the land in a position where the notice is visible to any person on adjacent public land.(3) The notice:(a) must state that submissions may be made to the council, in relation to the council’s consideration, by any Aboriginal person traditionally associated with the area in which the community land is situated, and(b) must specify a period of not less than 28 days after the date on which the notice is given during which submissions may be made to the council.(4) A council that is considering whether or not land is an area of Aboriginal significance (within the meaning of clause 105 (a)) must not make a final determination on that matter unless the council has considered any submissions made under this clause by Aboriginal people traditionally associated with the area in which the community land is situated.(5) A council must not prepare a draft plan of management that categorises community land as an area of cultural significance on the ground that the land is an area of Aboriginal significance (within the meaning of clause 105 (a)) unless the council has called for and considered any submissions made under this clause by Aboriginal people traditionally associated with the area in which the community land is situated.
113 Preparation of draft plan of management where land is categorised in more than one category
A draft plan of management that categorises an area of community land, or parts of an area of community land, in more than one category must clearly identify the land or parts of the land and the separate categories (by a map or otherwise).
114 Adoption of draft plan of management in relation to which certain submissions have been made
(1) This clause applies if:(a) a council prepares a draft plan of management, and(b) the council receives any submission, made in accordance with the Act, concerning that draft plan that makes any objection to a categorisation of land under the draft plan, and(c) the council adopts the plan of management without amending the categorisation that gave rise to the objection.(2) If this clause applies, the resolution by which the council adopts the plan of management must state the council’s reasons for categorising the relevant land in the manner that gave rise to the objection.
115 Application of amendments made by Local Government Amendment Act 2000 to draft plans of management
The amendments made to sections 40 and 40A of the Act by Schedule 3 [4]–[6] to the Local Government Amendment Act 2000 do not apply to proposed plans of management amended or adopted after the commencement of those amendments that had been placed on exhibition before the commencement of the amendments.
116 Leases, licences and other estates in respect of community land
(1) For the purposes of section 46 (1) (b) (iii) of the Act, the use or occupation of community land for the following events is prescribed as a purpose in respect of which a council may grant a licence in respect of community land on a short-term, casual basis:(a) the playing of a musical instrument, or singing, for fee or reward,(b) engaging in a trade or business,(c) the playing of a lawful game or sport,(d) the delivery of a public address,(e) commercial photographic sessions,(f) picnics and private celebrations such as weddings and family gatherings,(g) filming sessions,(h) the agistment of stock.(2) However, the use or occupation of community land for events listed in subclause (1) is prescribed only if the use or occupation does not involve the erection of any building or structure of a permanent nature.(3) For the purposes of section 46 (1) (b) (iii) of the Act, the use of any existing road or fire trail on community land:(a) to transport building materials and equipment required in relation to building work that is to be, or is being, carried out on land adjoining the community land, or(b) to remove waste that is consequential on such work,is prescribed as a short-term, casual purpose.(4) For the purposes of section 46 (1) (b) (iii) of the Act, the use of any community land that does not have an existing road or fire trail:(a) to transport building materials and equipment required in relation to building work that is to be, or is being, carried out on land adjoining the community land, or(b) to remove waste that is consequential on such work,is prescribed as a short-term, casual purpose if such work is for a purpose referred to in section 46 (4) (a) (ii) of the Act.(5) In this clause, existing road or fire trail means a road or a fire trail that was in existence on 1 January 2001 (the date on which the Local Government (General) Amendment (Community Land) Regulation 2000 commenced).
117 Exemptions from section 47A of the Act (Leases, licences and other estates in respect of community land—terms of 5 years or less)
(1) Leases, licenses and other estates granted for the following purposes are exempt from the provisions of section 47A of the Act:(a) residential purposes, where the relevant community land has been developed for the purposes of housing owned by the council,(b) the provision of 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 that is situated on the community land,(c) use and occupation of the community land for events such as:(i) a public performance (that is, a theatrical, musical or other entertainment for the amusement of the public),(ii) the playing of a musical instrument, or singing, for fee or reward,(iii) engaging in a trade or business,(iv) playing of any lawful game or sport,(v) delivering a public address,(vi) conducting a commercial photographic session,(vii) picnics and private celebrations such as weddings and family gatherings,(viii) filming,(d) a purpose referred to in clause 116 (3) or (4).(2) However, the use or occupation of community land for events listed in subclause (1) (c) is exempt only if:(a) the use or occupation does not involve the erection of any building or structure of a permanent nature, and(b) in the case of any use or occupation that occurs only once, it does not continue for more than 3 consecutive days, and(c) in the case of any use or occupation that occurs more than once, each occurrence is for no more than 3 consecutive days, not including Saturday and Sunday, and the period from the first occurrence until the last occurrence is not more than 12 months.
118 Additional notifications in relation to certain filming projects
(1) This clause prescribes, for the purposes of section 47AA of the Act, the additional manner of notification or advertisement of a council’s proposal under section 47A of the Act 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 that community land.(2) If the community land is:(a) critical habitat (as defined in section 36A (1) of the Act), or(b) directly affected by a recovery plan or threat abatement plan (as referred to in section 36B (2) of the Act),written notice is to be given to the Director-General of the Department of Environment and Conservation.(3) If the community land is declared to be an area of cultural significance under section 36D (1) of the Act because of the presence on the land of any item that the council considers to be of Aboriginal significance:(a) written notice is to be given to the Local Aboriginal Land Council for the area in which the land is situated, and(b) an advertisement is to be placed in a newspaper circulating across the State that is primarily concerned with issues of interest to Aboriginal people.(4) A notice and an advertisement required by this clause must include the matter specified in section 47 (2) of the Act (subject to section 47AA (2) of the Act).
119 Sublease of community land
For the purposes of section 47C (1) (b) of the Act:(a) refreshment kiosks, dances and private parties are prescribed as purposes for which community land that is leased for a surf life-saving club or a sporting club may be sublet, and(b) a croquet club is prescribed as a purpose for which community land that is used as a bowling club may be sublet.