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 principles of multiculturalism

•  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 account for and manage the assets for which it is responsible

•  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 management plans, the granting of development consents, etc (which are dealt with in later Chapters) by making submissions, including 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.

(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.

Note. Subsection (4) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989.

(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 Access to information

12   What information is publicly available?

(1)  Everyone is entitled to inspect the current version of the following documents free of charge:

•  the model code prescribed under section 440 (1) and the code of conduct adopted by the council under section 440 (3)

•  the council’s code of meeting practice

•  annual report

•  annual financial reports

•  auditor’s report

•  management plan

•  EEO management plan

•  the council’s policy concerning the payment of expenses incurred by, and the provision of facilities to, councillors

•  the council’s land register

•  register of investments

•  returns of the interests of councillors, designated persons and delegates

•  agendas and business papers for council and committee meetings (but not including business papers for matters considered when part of a meeting is closed to the public)

•  minutes of council and committee meetings, but restricted (in the case of any part of a meeting that is closed to the public), to the resolutions and recommendations of the meeting

•  the register of current declarations of disclosures of political donations to councillors kept in accordance with section 328A

•  the register of councillor voting on planning matters kept in accordance with section 375A

•  any codes referred to in this Act

•  register of delegations

•  annual reports of bodies exercising delegated council functions

•  development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and associated documents

•  local policies adopted by the council concerning approvals and orders

•  records of approvals granted, any variation from local policies with reasons for the variation, and decisions made on appeals concerning approvals

•  records of building certificates under the Environmental Planning and Assessment Act 1979

•  plans of land proposed to be compulsorily acquired by the council

•  leases and licences for use of public land classified as community land

•  plans of management for community land

•  environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the council’s area

•  the statement of affairs, the summary of affairs and the register of policy documents required under the Freedom of Information Act 1989

•  Departmental representatives’ reports presented at a meeting of the council in accordance with section 433

•  the register of graffiti removal work kept in accordance with section 13 of the Graffiti Control Act 2008.

(1A)  Despite subsection (1) and the other provisions of this Act, a person does not have the right to inspect so much of a development application as consists of:

(a)  the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or

(b)  commercial information, if the information would be likely:

(i)  to prejudice the commercial position of the person who supplied it, or

(ii)  to reveal a trade secret.

(2)  Everyone is entitled to inspect free of charge:

(a)  a document that was replaced by a current document referred to in subsection (1), and

(b)  if a document referred to in subsection (1) is produced annually—the corresponding document produced for the previous year.

(3)  The documents may be inspected at the office of the council during ordinary office hours.

(4)  (Repealed)

(5)  The council must allow inspection of versions of the documents other than the current and immediately preceding versions if those other versions are reasonably accessible.

(6)  The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.

(7)  However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following:

(a)  personnel matters concerning particular individuals (other than councillors),

(b)  the personal hardship of any resident or ratepayer,

(c)  trade secrets,

(d)  a matter the disclosure of which would:

(i)  constitute an offence against an Act, or

(ii)  found an action for breach of confidence,

(e)  that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under section 36DA.

(8)  For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may:

(a)  cause embarrassment to the council or to councillors or to employees of the council, or

(b)  cause a loss of confidence in the council, or

(c)  cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

Note. Subsection (8) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989.

Note. A council could also make copies of the documents available at other places, for example, at libraries.

A council may have other information available for inspection free of charge: for example, the rate record, the valuation list and the register of dog registrations.

12A   Restriction of access to information

(1)  If the general manager or any other member of the staff of a council decides that access to a document or other information held by the council should not be given to the public or a councillor, the person concerned must provide the council with written reasons for the restriction.

(2)  The reasons must be publicly available.

(3)  The council must review any such restriction no later than 3 months after it is imposed.

(4)  The council must, at the request of any person made after the expiry of a period of 3 months after that review (or of a period of 3 months after the most recent of any subsequent reviews), carry out a further review of the restriction.

(5)  The council must remove the restriction if, at any time:

(a)  it finds that there are no grounds for the restriction, or

(b)  access to the relevant document or other information is obtained under the Freedom of Information Act 1989.

(6)  A review is not required under this section if the restriction concerned has been removed.

12B   Copies of documents

(1)  A right under this Act to inspect a document includes the right to take away a copy of the document.

(2)  Accordingly, a council must have a copy of all relevant documents available for copying by, or on behalf of, any person who asks for one.

(3)  The copies may be taken away either free of charge or on payment of reasonable copying charges, as the council chooses (except as otherwise specifically provided by or under this Act).

(4)  This section does not apply to the following:

(a)  the residential roll of electors referred to in section 302 (1),

(b)  the information sheets of candidates for election referred to in section 308,

(c)  building certificates.

Note. Section 174 (3) provides that a person may obtain a copy of a building certificate from the council’s record with the consent of the owner of the building (and on payment of the approved fee).

13   Retention and preservation of records

The council must retain, preserve and destroy its records in accordance with any approved standards.

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 1991	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
Freedom of Information Act 1989	council required to publish certain information, to grant access to certain documents and to amend certain records that are shown to be incomplete, incorrect, out of date or misleading
Heritage Act 1977	rating based on heritage valuation
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   Preparation of draft local environmental plans

(1)  A decision under section 54 of the Environmental Planning and Assessment Act 1979 to prepare a draft local environmental plan to classify or reclassify public land that is not owned by the council must not be made unless the council has obtained the consent of the owner to the preparation of the plan.

(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 68 of the Environmental Planning and Assessment Act 1979 in respect of a proposal in a draft local environmental plan to reclassify community land as operational land as if it had received and decided to deal with a submission as referred to in that section that the land be so reclassified.

(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 21 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)  If a person makes a submission by way of objection to the proposal, the council must not grant the lease, licence or other estate except with the Minister’s consent.

(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

•  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.

(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 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:

•  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

•  a contract entered into by a council with the Crown (whether in right of the Commonwealth, New South Wales or any other State or a Territory), a Minister of the Crown or a statutory body representing the Crown

•  a contract entered into by a council with another council

•  a contract for the purchase or sale by a council of land

•  a contract for the leasing 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)

•  a contract for purchase or sale by a council at public auction

•  a contract for the purchase of goods, materials or services specified by the State Contracts Control Board or the Department of Administrative Services of the Commonwealth, made with a person so specified, during a period so specified and at a rate not exceeding the rate so specified

•  a contract for the employment of a person as an employee of the council

•  a contract where, because of extenuating circumstances, remoteness of locality or the unavailability of competitive or reliable tenderers, a council decides by resolution (which states the reasons for the decision) that a satisfactory result would not be achieved by inviting tenders

•  contract for which, because of provisions made by or under another Act, a council is exempt from the requirement to invite a tender

•  a contract made in a case of emergency

•  a contract to enter into a public-private partnership

•  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)

•  a contract involving an estimated expenditure or receipt of an amount of less than $100,000 or such other amount as may be prescribed by the regulations.

(4)  A council that invites tenders from selected persons only is taken to comply with the requirements of this section if those persons are selected:

(a)  from persons who have responded to a public advertisement for expressions of interest in the particular contract for which tenders are being invited, or

(b)  from persons who have responded to a public advertisement for recognition as recognised contractors with respect to contracts of the same kind as that for which tenders are being invited.

(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.

Note. See clause 2 of the Public Sector Employment and Management (Town Water) Order 2003, published on 28 November 2003 in Gazette No 186 at page 10775 for the way in which the references to the Minister for Land and Water Conservation in sections 57–66 are to be construed.

57   Construction of works

(1)  The Minister for Land and Water Conservation may, on the application of one or more councils, construct works of water supply, sewerage or stormwater drainage under the Public Works Act 1912.

(2)  The Minister for Land and Water Conservation may agree to the construction of the works by the council or councils concerned on the Minister’s behalf.

58   Handing over of works

(1)  The Minister for Land and Water Conservation may, on or before the completion of any such works, by notice given to the council or councils concerned, charge the council or councils with the care and management of the whole or part of the works (and of land on which the works are, or are being, constructed).

(2)  The notice may include provisions relating to the responsibility of the council or councils concerned for financial costs associated with the works.

(3)  The notice has effect according to its tenor from the date the notice is given to the council or councils concerned.

(4)  If more than one council is charged with the care and management of works, each council may be charged with the care and management of a specified portion of the works or the councils may be charged jointly as to the whole or a specified portion.

59   Vesting of works

(1)  The Minister for Land and Water Conservation may, by notice published in the Gazette, do either or both of the following:

(a)  declare that land acquired for the purposes of any such works, or any part of the works, is vested in the council or councils,

(b)  declare that all right, title and interest of the Minister in any such works, or part of the works, are vested in the council or councils.

(2)  The notice has effect according to its tenor from the date the notice is published in the Gazette.

(3)  If, on the date on which a notice under this section is published in the Gazette, the council or councils concerned have not made all payments to the Minister that may finally be required to be made in respect of the cost of the acquisition of the land and of constructing the works, or part of the works (whether or not that cost has been finally determined), the council or councils concerned continue to be liable to make those payments.

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

(1)  Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).

(2)  A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed.

(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 Land and Water Conservation is required

A council must not, except in accordance with the approval of the Minister for Land and Water Conservation, do any of the following:

(a)  as to works of water supply—construct or extend a dam for the impounding or diversion of water for public use or any associated works,

(b)  as to water treatment works—construct or extend any such works,

(c)  as to sewage—provide for sewage from its area to be discharged, treated or supplied to any person,

(d)  as to flood retarding basins prescribed by the regulations—construct or extend any such basins.

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

(1)  The Minister for Land and Water Conservation or a person authorised by the Minister may direct a council to take such measures as are specified in the direction to ensure the proper safety, maintenance and working of any of the following works:

(a)  dams for the impounding or diversion of water for public use or any associated works,

(b)  water treatment works,

(c)  sewage treatment works.

(2)  The council must comply with the direction.

62   Powers of Minister during emergencies

(1)  The Minister for Land and Water Conservation or a person authorised by the Minister may direct a council to take such measures with respect to any works to which this Division applies as are specified in the direction if the Minister or person is of the opinion that an emergency exists that constitutes a threat to public health or public safety or that is causing or is likely to cause damage to property.

(2)  A direction may not be given unless the Minister for Land and Water Conservation has obtained the concurrence of the Minister for Health.

(3)  The council must comply with the direction.

63   Effect of failure to comply with directions

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

(2)  The Minister may recover any cost incurred from the council as a debt.

64   Construction of works for developers

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

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

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

66   Appointment of administrator

(1)  The Minister for Land and Water Conservation may, with the concurrence of the Minister for Local Government, by order published in the Gazette, appoint an administrator to exercise all the functions under this Division, or specified functions under this Act, of a council.

(2)  Such an order may not be made until after a public inquiry concerning the exercise by the council of the relevant functions has been held.

(3)  The appointment of one or more persons as a commissioner or commissioners to hold the public inquiry may, despite section 740, be made by the Minister for Land and Water Conservation with the concurrence of the Minister for Local Government.

(4)  The administrator is to be paid a salary determined by the Minister for Land and Water Conservation with the concurrence of the Minister for Local Government from the council’s funds.

(5)  An administrator has, during the administrator’s term of office and to the exclusion of the council, the functions the administrator was appointed to exercise.

(6)  The regulations may make provision for or with respect to:

•  the appointment and term of office of an administrator

•  an administrator’s accommodation, and the accommodation of persons assisting the administrator, at the offices of the council

•  the assistance to be rendered to an administrator by the council’s employees.

Division 3 Private works

67   Private works

(1)  A council may, by agreement with the owner or occupier of any private land, carry out on the land any kind of work that may lawfully be carried out on the land.

Note. Examples of the kind of work that a council might carry out under this section include:

•  paving and roadmaking

•  kerbing and guttering

•  fencing and ditching

•  tree planting and tree maintenance

•  demolition and excavation

•  land clearing and tree felling

•  water, sewerage and drainage connections

•  gas and electricity connections.

(2)  A council must not carry out work under this section unless:

(a)  it 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.

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   What orders may be given, in what circumstances and to whom?

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 1991	direction concerning maintenance or use of certain air-conditioning 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)  (Repealed) (h)  a water meter, water supply or sewerage system on premises	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, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991), 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 1991.

(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.

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