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 plan for, account for and manage the assets for
which it is responsible
• to engage in long-term strategic planning on behalf of the local
community
• to exercise its functions in a manner that is consistent with and
promotes social justice principles of equity, access, participation and
rights
• to facilitate the involvement of councillors, members of the
public, users of facilities and services and council staff in the development,
improvement and co-ordination of local government
• to raise funds for local purposes by the fair imposition of rates,
charges and fees, by income earned from investments and, when appropriate, by
borrowings and grants
• to keep the local community and the State government (and through
it, the wider community) informed about its activities
• to ensure that, in the exercise of its regulatory functions, it
acts consistently and without bias, particularly where an activity of the
council is affected
• to be a responsible employer.
(2) A council, in the exercise of its functions, must pursue its
charter but nothing in the charter or this section gives rise to, or can be
taken into account in, any civil cause of action.
Chapter 4 How can the community influence what a council
does?
Introduction. Under this Chapter, meetings of the council and its committees are
required, as a general rule, to be open to the public.The Chapter provides for public access to information held by
councils.
Apart from the provisions of this Chapter, members of the public
may influence council decisions concerning matters such as the levels of rates
and charges, the terms of community strategic plans, delivery programs and
operational plans, the granting of development consents, etc (which are dealt
with in later Chapters) by participating in council community engagement
activities including by making submissions to the council and comments on or
objections to proposals relating to those matters.
The Chapter also enables the council to ascertain the views of the
local community on various matters through 2 types of polls which may be
conducted in the area. A summary of these polls is contained in Part 3 of this
Chapter.
Part 1 Open meetings
9 Public notice of meetings
(1) A council must give notice to the public of the times and places
of its meetings and meetings of those of its committees of which all the
members are councillors.
(2) A council and each such committee must have available for the
public at its offices and at each meeting copies (for inspection or taking
away by any person) of the agenda and the associated business papers (such as
correspondence and reports) for the meeting.
(2A) In the case of a meeting whose agenda includes the receipt of
information or discussion of other matters that, in the opinion of the general
manager, is likely to take place when the meeting is closed to the
public:(a) the agenda for the meeting must indicate that the relevant item of
business is of such a nature (but must not give details of that item),
and
(b) the requirements of subsection (2) with respect to the
availability of business papers do not apply to the business papers for that
item of business.
(3) The copies are to be available to the public as nearly as possible
to the time they are available to councillors.
(4) The copies are to be available free of
charge.
(5) A notice given under this section or a copy of an agenda or of a
business paper made available under this section may in addition be given or
made available in electronic form.
10 Who is entitled to attend meetings?
(1) Except as provided by this Part:(a) everyone is entitled to attend a meeting of the council and those
of its committees of which all the members are councillors,
and
(b) a council must ensure that all meetings of the council and of such
committees are open to the public.
(2) However, a person (whether a councillor or another person) is not
entitled to be present at a meeting of the council or of such a committee if
expelled from the meeting:(a) by a resolution of the meeting, or
(b) by the person presiding at the meeting if the council has, by
resolution, authorised the person presiding to exercise the power of
expulsion.
(3) A person may be expelled from a meeting only on the grounds
specified in, or in the circumstances prescribed by, the
regulations.
10A Which parts of a meeting can be closed to the
public?
(1) A council, or a committee of the council of which all the members
are councillors, may close to the public so much of its meeting as
comprises:(a) the discussion of any of the matters listed in subclause (2),
or
(b) the receipt or discussion of any of the information so
listed.
(2) The matters and information are the following:(a) personnel matters concerning particular individuals (other than
councillors),
(b) the personal hardship of any resident or
ratepayer,
(c) information that would, if disclosed, confer a commercial
advantage on a person with whom the council is conducting (or proposes to
conduct) business,
(d) commercial information of a confidential nature that would, if
disclosed:(i) prejudice the commercial position of the person who supplied it,
or
(ii) confer a commercial advantage on a competitor of the council,
or
(iii) reveal a trade secret,
(e) information that would, if disclosed, prejudice the maintenance of
law,
(f) matters affecting the security of the council, councillors,
council staff or council property,
(g) advice concerning litigation, or advice that would otherwise be
privileged from production in legal proceedings on the ground of legal
professional privilege,
(h) information concerning the nature and location of a place or an
item of Aboriginal significance on community land.
(3) A council, or a committee of the council of which all the members
are councillors, may also close to the public so much of its meeting as
comprises a motion to close another part of the meeting to the
public.
(4) A council, or a committee of a council, may allow members of the
public to make representations to or at a meeting, before any part of the
meeting is closed to the public, as to whether that part of the meeting should
be closed.
(5), (6) (Repealed)
10B Further limitations relating to closure of parts of
meetings to public
(1) A meeting is not to remain closed during the discussion of
anything referred to in section 10A (2):(a) except for so much of the discussion as is necessary to preserve
the relevant confidentiality, privilege or security, and
(b) if the matter concerned is a matter other than a personnel matter
concerning particular individuals, the personal hardship of a resident or
ratepayer or a trade secret—unless the council or committee concerned is
satisfied that discussion of the matter in an open meeting would, on balance,
be contrary to the public interest.
(2) A meeting is not to be closed during the receipt and consideration
of information or advice referred to in section 10A (2) (g) unless the advice
concerns legal matters that:(a) are substantial issues relating to a matter in which the council
or committee is involved, and
(b) are clearly identified in the advice, and
(c) are fully discussed in that advice.
(3) If a meeting is closed during the discussion of a motion to close
another part of the meeting to the public (as referred to in section 10A (3)),
the consideration of the motion must not include any consideration of the
matter or information to be discussed in that other part of the meeting (other
than consideration of whether the matter concerned is a matter referred to in
section 10A (2)).
(4) For the purpose of determining whether the discussion of a matter
in an open meeting would be contrary to the public interest, it is irrelevant
that:(a) a person may misinterpret or misunderstand the discussion,
or
(b) the discussion of the matter may:(i) cause embarrassment to the council or committee concerned, or to
councillors or to employees of the council, or
(ii) cause a loss of confidence in the council or
committee.
(5) In deciding whether part of a meeting is to be closed to the
public, the council or committee concerned must have regard to any relevant
guidelines issued by the Director-General.
10C Notice of likelihood of closure not required in urgent
cases
Part of a meeting of a council, or of a committee of the council
of which all the members are councillors, may be closed to the public while
the council or committee considers a matter that has not been identified in
the agenda for the meeting as a matter that is likely to be considered when
the meeting is closed, but only if:(a) it becomes apparent during the discussion of a particular matter
that the matter is a matter referred to in section 10A (2),
and
(b) the council or committee, after considering any representations
made under section 10A (4), resolves that further discussion of the
matter:(i) should not be deferred (because of the urgency of the matter),
and
(ii) should take place in a part of the meeting that is closed to the
public.
10D Grounds for closing part of meeting to be
specified
(1) The grounds on which part of a meeting is closed must be stated in
the decision to close that part of the meeting and must be recorded in the
minutes of the meeting.
(2) The grounds must specify the following:(a) the relevant provision of section 10A (2),
(b) the matter that is to be discussed during the closed part of the
meeting,
(c) the reasons why the part of the meeting is being closed, including
(if the matter concerned is a matter other than a personnel matter concerning
particular individuals, the personal hardship of a resident or ratepayer or a
trade secret) an explanation of the way in which discussion of the matter in
an open meeting would be, on balance, contrary to the public
interest.
10E (Repealed)
11 Public access to correspondence and reports
(1) A council and a committee of which all the members are councillors
must, during or at the close of a meeting, or during the business day
following the meeting, give reasonable access to any person to inspect
correspondence and reports laid on the table at, or submitted to, the
meeting.
(2) This section does not apply if the correspondence or
reports:(a) relate to a matter that was received or discussed,
or
(b) were laid on the table at, or submitted to, the
meeting,
when the meeting was closed to the public.
(3) This section does not apply if the council or committee resolves
at the meeting, when open to the public, that the correspondence or reports,
because they relate to a matter specified in section 10A (2), are to be
treated as confidential.
Part 2
12–13(Repealed)
Part 3 Expressions of community opinion
Division 1 Council polls
14 Council polls
A council may take a poll of electors for its information and
guidance on any matter.
Division 2 Constitutional referendums
15 What is a constitutional referendum?
A constitutional referendum is a poll initiated by a council in
order to give effect to a matter referred to in section
16.
16 What matters must be dealt with at a constitutional
referendum?
A council may not do any of the following unless approval to do so
has been given at a constitutional referendum:(a) divide its area into wards or abolish all wards in its
area,
(b) change the basis on which the mayor attains office (that is, by
election by the councillors or by election by the
electors),
(c) increase or decrease the number of councillors in accordance with
the limits under section 224,
(d) change the method of ordinary election of councillors for an area
divided into wards.
(e) (Repealed)
17 What is the effect of a constitutional
referendum?
(1) The decision made at a constitutional referendum binds the council
until changed by a subsequent constitutional
referendum.
(2) However, such a decision does not apply to a by-election held
after the constitutional referendum and before the next ordinary
election.
Division 3 General provisions concerning a council poll or
constitutional referendum
18 What provisions apply to the conduct of a council poll or
constitutional referendum?
Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How
are people elected to civic office?) apply to a council poll, and Part 1 and
Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional
referendum, with such modifications as may be necessary, in the same way as
they apply to an election.Note. Part 1 of Chapter 10 identifies the people who are entitled to
vote in council elections, and Part 6 governs the conduct of those
elections.Division 3 of Part 6 of that Chapter deals with nominations for
election, Division 4 with failure to vote and Division 5 with miscellaneous
matters such as irregularities of form or procedure in elections, overdue
elections and those declared void.
19 Day for taking council poll or constitutional
referendum
A council poll or constitutional referendum may be taken on any
Saturday, including the Saturday of an ordinary
election.
20 When is a question at a council poll or constitutional
referendum carried?
(1) The question at a council poll or constitutional referendum is
carried if it is supported by a majority of the votes
cast.
(2) The reference to votes in subsection (1) does not include a
reference to any vote that, pursuant to the regulations, is found to be
informal.
Expressions of community
opinion
Types of
expression |
Council
Poll | Constitutional
Referendum |
Question to be
determined |
Any question | • Creation or abolition of all wards
• Change in the way in which the mayor is chosen
• Change in number of councillors
• Change in the way councillors are elected for an area divided into
wards
|
Result of
Poll |
If Yes | If No | If Yes | If No |
Council chooses whether or not to
proceed | Change must proceed | Change cannot proceed until passed by a later
constitutional referendum |
Chapter 5 What are a council’s functions?
Introduction. This Chapter specifies a council’s functions. In doing so,
it recognises that all functions of a council come from statute, either from
this Act or another Act.
21 Functions under this Act
A council has the functions conferred or imposed on it by or under
this Act.Note. This Act classifies certain of a council’s functions as
service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or
ancillary (Chapter 8). Ancillary functions are those functions that assist the
carrying out of a council’s service and regulatory
functions.A council also has revenue functions (Chapter 15), administrative
functions (Chapters 11, 12 and 13) and functions relating to the enforcement
of this Act (Chapters 16 and 17).
22 Other functions
A council has the functions conferred or imposed on it by or under
any other Act or law.Note. While the main functions of councils are provided for under this
Act, councils also have functions under other Acts. An important general
provision is contained in section 50 of the Interpretation Act 1987 which
provides, in part:(1) A statutory corporation:(a) has perpetual succession,
(b) shall have a seal,
(c) may take proceedings and be proceeded against in its corporate
name,
(d) may, for the purpose of enabling it to exercise its functions,
purchase, exchange, take on lease, hold, dispose of and otherwise deal with
property, and
(e) may do and suffer all other things that bodies corporate may, by
law, do and suffer and that are necessary for, or incidental to, the exercise
of its functions …
(4) This section applies to a statutory corporation in addition to,
and without limiting the effect of, any provision of the Act by or under which
the corporation is constituted.
Some other Acts and some of the functions they confer
include:
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:
23 Supplementary, incidental and consequential
functions
A council may do all such things as are supplemental or incidental
to, or consequential on, the exercise of its
functions.
23A Director-General’s guidelines
(1) For the purposes of this Act, the Director-General may from time
to time prepare, adopt or vary guidelines relating to the exercise by a
council of any of its functions.
(2) The Director-General may only prepare, adopt or vary guidelines
relating to the exercise by a council of functions conferred or imposed on the
council by or under any Act or law that is not administered by or the
responsibility of the Department of Local Government if the Director-General
has first obtained the concurrence of the Minister administering or
responsible for the administration of the other Act or
law.
(3) A council must take any relevant guidelines issued under this
section into consideration before exercising any of its
functions.
(4) The guidelines for the time being in force are to be made
available to councils on request and, on payment of such fee (if any) as the
Director-General may determine, to any interested
person.
WHAT ARE A COUNCIL’S
FUNCTIONS?
A COUNCIL EXERCISES
FUNCTIONS UNDER |
THIS
ACT | OTHER ACTS |
SERVICE
FUNCTIONS | REGULATORY
FUNCTIONS | ANCILLARY
FUNCTIONS | REVENUE
FUNCTIONS | ADMINISTRATIVE
FUNCTIONS | ENFORCEMENT
FUNCTIONS | VARIOUS
FUNCTIONS |
For example: • Providing community health, recreation, education &
information services • Environmental protection • Waste removal & disposal • Land & property, industry & tourism development
& assistance For other functions, see the Introduction to Chapter
6 | • Approvals • Orders • Building certificates | • Resumption of land • Powers of entry and inspection | • Rates • Charges • Fees • Borrowings • Investments | For example • Employment of staff • Management plans • Financial reporting • Annual reports | For example • Proceedings for breaches of the Act • Prosecution of offences • Recovery of rates and charges | See the Note to section 22 |
Chapter 6 What are the service functions of
councils?
Introduction. This Chapter confers on councils their service or non-regulatory
functions. Examples of these functions include the provision, management or
operation of:• community services and facilities
• public health services and facilities
• cultural, educational and information services and
facilities
• sporting, recreational and entertainment services and
facilities
• environment conservation, protection and improvement services and
facilities
• waste removal, treatment and disposal services and
facilities
• pest eradication and control services and
facilities
• public transport services and facilities
• energy production, supply and conservation
• water, sewerage and drainage works and
facilities
• storm water drainage and flood prevention, protection and
mitigation services and facilities
• fire prevention, protection and mitigation services and
facilities
• land and property development
• housing
• industry development and assistance
• tourism development and assistance.
This list of examples is not exhaustive.
These functions are conferred in broad terms in Part 1. Particular
provisions are made for the management of public land in Part 2. Part 3
imposes some restraints and qualifications on the exercise of the service
functions.
A council may have other service functions under other Acts. For
example, a council has functions relating to the provision and management of
roads under the Roads Act
1993.
Part 1 General
24 Provision of goods, services and facilities and carrying
out of activities
A council may provide goods, services and facilities, and carry
out activities, appropriate to the current and future needs within its local
community and of the wider public, subject to this Act, the regulations and
any other law.
Part 2 Public land
Note. This Part requires all land vested in a council (except a road or
land to which the Crown Lands Act
1989 applies) to be classified as either
“community” or “operational”.The classification will generally be achieved by a local
environmental plan but may, in some circumstances, be achieved by resolution
of the council (see sections 31, 32 and 33).
The purpose of classification is to identify clearly that land
which should be kept for use by the general public (community) and that land
which need not (operational). The major consequence of classification is that
it determines the ease or difficulty with which land may be alienated by sale,
leasing or some other means.
Community land must not be sold (except in the limited
circumstances referred to in section 45 (4)). Community land must not be
leased or licensed for more than 21 years and may only be leased or licensed
for more than 5 years if public notice of the proposed lease or licence is
given and, in the event that an objection is made to the proposed lease or
licence, the Minister’s consent is obtained. No such restrictions apply
to operational land.
Classification or reclassification of land does not affect any
estate or interest a council has in the land.
Community land would ordinarily comprise land such as a public
park. Operational land would ordinarily comprise land held as a temporary
asset or as an investment, land which facilitates the carrying out by a
council of its functions or land which may not be open to the general public,
such as a works depot or a council garage.
The use and management of community land is to be regulated by a
plan of management. Until a plan of management is adopted, the nature and use
of the land must not change.
Division 1 Classification and reclassification of public
land
25 All public land must be classified
All public land must be classified in accordance with this
Part.
26 What are the classifications?
There are 2 classifications for public
land—“community” and
“operational”.Note. On the commencement of this Part, certain land that is vested in
or under the control of a council is taken to have been classified as
community land by the operation of clause 6 of Schedule
7.
27 How are the classifications made?
(1) The classification or reclassification of public land may be made
by a local environmental plan.
(2) The classification or reclassification of public land may also be
made by a resolution of the council under section 31, 32 or
33.
28 Forwarding of planning proposals to Minister for
Planning
(1) A council may not forward a planning proposal to the Minister for
Planning under section 56 of the Environmental Planning and Assessment Act
1979 which includes a proposal to classify or reclassify
public land that is not owned by the council unless the council has obtained
the consent of the owner to the proposed classification or reclassification of
public land.
(2) A local environmental plan that classifies or reclassifies public
land may apply to one or more areas of public land.
29 Public hearing into reclassification
(1) A council must arrange a public hearing under section 57 of the
Environmental Planning and Assessment Act
1979 in respect of a planning proposal under Part 3 of that
Act to reclassify community land as operational land, unless a public hearing
has already been held in respect of the same matter as a result of a
determination under section 56 (2) (e) of that Act.
(2) A council must, before making any resolution under section 32,
arrange a public hearing in respect of any proposal to reclassify land as
operational land by such a resolution.
30 Reclassification of community land as
operational
(1) A local environmental plan that reclassifies community land as
operational land may make provision to the effect that, on commencement of the
plan, the land, if it is a public reserve, ceases to be a public reserve, and
that the land is by operation of the plan discharged from any trusts, estates,
interests, dedications, conditions, restrictions and covenants affecting the
land or any part of the land, except for:(a) any reservations that except land out of a Crown grant relating to
the land, and
(b) reservations of minerals (within the meaning of the Crown Lands Act
1989).
(2) A provision referred to in subsection (1) has effect according to
its tenor, but only if the Governor has, before the making of the local
environmental plan, approved of the provision.
31 Classification of land acquired after 1 July
1993
(1) This section applies to land that is acquired by a council after
the commencement of this Division, other than:(a) land to which the Crown Lands Act
1989 applied before the acquisition and continues to apply
after the acquisition, and
(b) land that is acquired for the purpose of a
road.
(2) Before a council acquires land, or within 3 months after it
acquires land, a council may resolve (in accordance with this Part) that the
land be classified as community land or operational
land.
(2A) Any land acquired by a council that is not classified under
subsection (2) is, at the end of the period of 3 months referred to in that
subsection, taken to have been classified under a local environmental plan as
community land.
(2B) While the land remains unclassified:(a) the land may not be used for any purpose other than that for which
it was being used immediately before it was acquired, and
(b) the council may not dispose of any interest in the
land.
(3) A council must not resolve under this section that land be
classified as operational land if:(a) the land is classified as community land immediately before its
acquisition, or
(b) the resolution would be inconsistent with any other Act, the terms
of any trust applying to the land or the terms of any instrument executed by
the donor or transferor of the land.
32 Reclassification of land dedicated under sec 94 of the
Environmental Planning and Assessment Act
1979
(1) A council may resolve that land dedicated in accordance with a
condition imposed under section 94 of the Environmental Planning and Assessment Act
1979 is to be reclassified as operational
land.
(2) A council may make such a resolution only if it is satisfied that
the land has been found to be unsuitable for the provision, extension or
augmentation of public amenities and public services because of any one or
more of the following:• the size of the land
• the shape of the land
• the topography of the land
• the location of the land
• the difficulty of providing public access to the
land.
(3) The council must specify in the resolution the grounds on which it
is satisfied the land is unsuitable.
(4) Before making the resolution, the council must give public notice
of the resolution. The public notice must specify a period of not less than 28
days during which submissions may be made to the
council.
(5) The net proceeds of sale by a council of any land dedicated in
accordance with a condition imposed under section 94 of the Environmental Planning and Assessment Act
1979 must be dealt with under that section as if those net
proceeds were a monetary contribution paid instead of the
dedication.
33 Reclassification of operational land as community
land
(1) A council may resolve that public land classified as operational
land is to be reclassified as community land.
(2) (Repealed)
34 Public notice to be given of classification or
reclassification by council resolution
(1) A council must give public notice of a proposed resolution to
classify or reclassify public land.
(2) The public notice must include the terms of the proposed
resolution and a description of the public land
concerned.
(3) The public notice must specify a period of not less than 28 days
during which submissions may be made to the
council.
(4) (Repealed)
Division 2 Use and management of community land
35 What governs the use and management of community
land?
Community land is required to be used and managed in accordance
with the following:• the plan of management applying to the land
• any law permitting the use of the land for a specified purpose or
otherwise regulating the use of the land
• this Division.
36 Preparation of draft plans of management for community
land
(1) A council must prepare a draft plan of management for community
land.
(2) A draft plan of management may apply to one or more areas of
community land, except as provided by this
Division.
(3) A plan of management for community land must identify the
following:(a) the category of the land,
(b) the objectives and performance targets of the plan with respect to
the land,
(c) the means by which the council proposes to achieve the
plan’s objectives and performance targets,
(d) the manner in which the council proposes to assess its performance
with respect to the plan’s objectives and performance
targets,
and may require the prior approval of the council to the carrying out of
any specified activity on the land.
(3A) A plan of management that applies to just one area of community
land:(a) must include a description of:(i) the condition of the land, and of any buildings or other
improvements on the land, as at the date of adoption of the plan of
management, and
(ii) the use of the land and any such buildings or improvements as at
that date, and
(b) must:(i) specify the purposes for which the land, and any such buildings or
improvements, will be permitted to be used, and
(ii) specify the purposes for which any further development of the land
will be permitted, whether under lease or licence or otherwise,
and
(iii) describe the scale and intensity of any such permitted use or
development.
(4) For the purposes of this section, land is to be categorised as one
or more of the following:(a) a natural area,
(b) a sportsground,
(c) a park,
(d) an area of cultural significance,
(e) general community use.
(5) Land that is categorised as a natural area is to be further
categorised as one or more of the following:(a) bushland,
(b) wetland,
(c) escarpment,
(d) watercourse,
(e) foreshore,
(f) a category prescribed by the
regulations.
(6) The regulations may make provision for or with respect to the
categorisation of community land under this section, including:(a) defining any expression used in subsection (4) or (5),
and
(b) prescribing guidelines for the categorisation of community land
and the effect of any guidelines so prescribed.
36A Community land comprising the habitat of endangered
species
(1) In this section:critical
habitat means:
(a) an area declared to be critical habitat under the Threatened Species Conservation Act
1995, or
(b) an area declared to be critical habitat under Part 7A of the
Fisheries Management Act
1994.
relevant
Director means:
(a) in relation to critical habitat being an area declared to be
critical habitat under the Threatened
Species Conservation Act 1995, the Director-General of
National Parks and Wildlife, and
(b) in relation to critical habitat being an area declared to be
critical habitat under Part 7A of the Fisheries Management Act 1994, the
Director of NSW Fisheries.
(2) A plan of management adopted in respect of an area of community
land, all or part of which consists of critical habitat, is to apply to that
area only, and not to other areas of land.
(3) A plan of management to be adopted for an area of community land,
all or part of which consists of critical habitat:(a) must, subject to any decision of the Director-General of National
Parks and Wildlife under section 146 of the Threatened Species Conservation Act
1995 or any decision of the Director of Fisheries under
section 220Y of the Fisheries Management Act
1994, state that the land, or the relevant part, is critical
habitat, and
(b) must, in complying with section 36 (3) (a), categorise the land,
or the relevant part, as a natural area, and
(c) must, in complying with section 36 (3) (b), (c) and (d), identify
objectives, performance targets and other matters that:(i) take account of the existence of the critical habitat,
and
(ii) are consistent with the objects of the Threatened Species Conservation Act
1995 or the Fisheries
Management Act 1994, as the case requires,
and
(iii) incorporate the core objectives prescribed under section 36 in
respect of community land categorised as a natural area,
and
(d) must:(i) when public notice is given of the draft plan under section 38, be
sent (or a copy must be sent) by the council to the relevant Director,
and
(ii) incorporate any matter specified by the relevant Director in
relation to the land, or the relevant part.
(4) If, after the adoption of a plan of management applying to just
one area of community land, all or part of that area becomes critical
habitat:(a) the plan of management is taken to be amended, as from the date
the declaration took effect, to categorise the land or the relevant part as a
natural area, and
(b) the council must amend the plan of management (and, in doing so,
the provisions of subsection (3) (a), (c) and (d) apply to the amendment of
the plan of management in the same way as they apply to the adoption of a plan
of management), and
(c) until the plan of management has been amended as required by
paragraph (b):(i) the use of the land must not be varied, except to the extent
necessary to further the objects of the Threatened Species Conservation Act
1995 or the Fisheries
Management Act 1994, as the case requires, or in order to give
effect to the core objectives prescribed under section 36 in respect of
community land categorised as a natural area, or to terminate the use,
and
(ii) no lease, licence or other estate may be granted in respect of the
land.
(5) If, after the adoption of a plan of management applying to several
areas of community land, all or part of one of those areas becomes critical
habitat:(a) the plan of management ceases, as from the date the declaration
took effect, to apply to that area, and
(b) a plan of management must be prepared and adopted by the council
for that area, and
(c) the plan of management so prepared and adopted must comply with
subsection (3).
36B Community land comprising the habitat of threatened
species
(1) In this section:recovery plan
means a recovery plan under Part 4 of the Threatened Species Conservation Act
1995 or Division 5 of Part 7A of the Fisheries Management Act
1994.
relevant
Director means:
(a) in relation to a recovery plan under Part 4 of the Threatened Species Conservation Act
1995 or a threat abatement plan under Part 5 of that Act, the
Director-General of National Parks and Wildlife, and
(b) in relation to a recovery plan or a threat abatement plan under
Division 5 of Part 7A of the Fisheries
Management Act 1994, the Director of NSW
Fisheries.
threat abatement
plan means a threat abatement plan under Part 5 of the Threatened Species Conservation Act
1995 or Division 5 of Part 7A of the Fisheries Management Act
1994.
(2) For the purposes of this section, land is directly affected by a
recovery plan or threat abatement plan only if the plan concerned requires
measures specified in the plan to be taken by a specified council on or in
respect of the land.
(3) A plan of management adopted in respect of an area of community
land, all or part of which is directly affected by a recovery plan or threat
abatement plan, is to apply to that area only, and not to other areas of
land.
(4) A plan of management to be adopted for an area of community land,
all or part of which is directly affected by a recovery plan or threat
abatement plan:(a) must state that the land, or the relevant part, is so affected,
and
(b) must, in complying with section 36 (3) (a), categorise the land,
or the relevant part, as a natural area, and
(c) must, in complying with section 36 (3) (b), (c) and (d), identify
objectives, performance targets and other matters that:(i) take account of the council’s obligations under the recovery
plan or threat abatement plan in relation to the land, and
(ii) are otherwise consistent with the objects of the Threatened Species Conservation Act
1995 or the Fisheries
Management Act 1994, as the case requires,
and
(iii) incorporate the core objectives prescribed under section 36 in
respect of community land categorised as a natural area,
and
(d) must:(i) when public notice is given of the draft plan under section 38, be
sent (or a copy must be sent) by the council to the relevant Director,
and
(ii) incorporate any matter specified by the relevant Director in
relation to the land, or the relevant part.
(5) If, after the adoption of a plan of management applying to just
one area of community land, all or part of that area becomes directly affected
by a recovery plan or threat abatement plan:(a) the plan of management is taken to be amended, as from the date
the declaration took effect, to categorise the land or the relevant part as a
natural area, and
(b) the council must amend the plan of management (and, in doing so,
the provisions of subsection (4) (a), (c) and (d) apply to the amendment of
the plan of management in the same way as they apply to the adoption of a plan
of management), and
(c) until the plan of management has been amended as required by
paragraph (b):(i) the use of the land must not be varied, except to the extent
necessary to further the objects of the Threatened Species Conservation Act
1995 or the Fisheries
Management Act 1994, as the case requires, or in order to give
effect to the core objectives prescribed under section 36 in respect of
community land categorised as a natural area, or to terminate the use,
and
(ii) no lease, licence or other estate may be granted in respect of the
land.
(6) If, after the adoption of a plan of management applying to several
areas of community land, all or part of one of those areas becomes directly
affected by a recovery plan or threat abatement plan:(a) the plan of management ceases, as from the date the declaration
took effect, to apply to that area, and
(b) a plan of management must be prepared and adopted by the council
for that area, and
(c) the plan of management so prepared and adopted must comply with
subsection (4).
36C Community land containing significant natural
features
(1) This section applies to community land that is the subject of a
resolution by the council that declares that the land, being the site
of:(a) a known natural, geological, geomorphological, scenic or other
feature that is considered by the council to warrant protection or special
management considerations, or
(b) a wildlife corridor,
is land to which this section applies.
(2) A plan of management adopted in respect of an area of community
land, all or part of which is land to which this section applies, is to apply
to that area only, and not to other areas of land.
(3) A plan of management to be adopted for an area of community land,
all or part of which is land to which this section applies:(a) must state that the land, or the relevant part, is land to which
this section applies, and the reason why, and
(b) must, in complying with section 36 (3) (a), categorise the land,
or the relevant part, as a natural area, and
(c) must, in complying with section 36 (3) (b), (c) and (d), identify
objectives, performance targets and other matters that:(i) are designed to protect the area, and
(ii) take account of the existence of the features of the site
identified by the council’s resolution, and
(iii) incorporate the core objectives prescribed under section 36 in
respect of community land categorised as a natural
area.
(4) If, after the adoption of a plan of management applying to just
one area of community land, all or part of that area becomes the subject of a
resolution of the kind described in subsection (1):(a) the plan of management is taken to be amended, as from the date
the declaration took effect, to categorise the land or the relevant part as a
natural area, and
(b) the council must amend the plan of management (and in doing so,
the provisions of subsection (3) (a) and (c) apply to the amendment of the
plan of management in the same way as they apply to the adoption of a plan of
management), and
(c) until the plan of management has been amended as required by
paragraph (b):(i) the use of the land must not be varied, except to the extent
necessary to protect the features of the site identified in the
council’s resolution or in order to give effect to the core objectives
prescribed under section 36 in respect of community land categorised as a
natural area, or to terminate the use, and
(ii) no lease, licence or other estate may be granted in respect of the
land.
(5) If, after the adoption of a plan of management applying to several
areas of community land, all or part of one of those areas becomes the subject
of a resolution of the kind described in subsection (1):(a) the plan of management ceases, as from the date the declaration
took effect, to apply to that area, and
(b) a plan of management must be prepared and adopted by the council
for that area, and
(c) the plan of management so prepared and adopted must comply with
subsection (3).
36D Community land comprising area of cultural
significance
(1) This section applies to community land that is the subject of a
resolution by the council that declares that, because of the presence on the
land of any item that the council considers to be of Aboriginal, historical or
cultural significance, the land is an area of cultural significance for the
purposes of this Part.
(2) A plan of management adopted in respect of an area of land, all or
part of which is land to which this section applies, is to apply to that land
only, and not to other areas.
(3) A plan of management to be adopted for an area of community land,
all or part of which consists of land to which this section applies:(a) must state that the land, or the relevant part, is an area of
cultural significance, and
(b) must, in complying with section 36 (3) (a), categorise the land,
or the relevant part, as an area of cultural significance,
and
(c) must, in complying with section 36 (3) (b), (c) and (d), identify
objectives, performance targets and other matters that:(i) are designed to protect the area, and
(ii) take account of the existence of the features of the site
identified by the council’s resolution, and
(iii) incorporate the core objectives prescribed under section 36 in
respect of community land categorised as an area of cultural significance,
and
(d) must:(i) when public notice is given of it under section 38, be sent (or a
copy must be sent) by the council to the Director-General of National Parks
and Wildlife, and
(ii) incorporate any matter specified by the Director-General of
National Parks and Wildlife in relation to the land, or the relevant
part.
(4) If, after the adoption of a plan of management applying to just
one area of community land, all or part of that area becomes the subject of a
resolution of the kind described in subsection (1):(a) the plan of management is taken to be amended, as from the date
the declaration took effect, to categorise the land or the relevant part as an
area of cultural significance, and
(b) the council must amend the plan of management (and in doing so,
the provisions of subsection (3) (a), (c) and (d) apply to the amendment of
the plan of management in the same way as they apply to the adoption of a plan
of management), and
(c) until the plan of management has been amended as required by
paragraph (b):(i) the use of the land must not be varied, except to the extent
necessary to protect any item identified in the council’s resolution or
in order to give effect to the core objectives prescribed under section 36 in
respect of community land categorised as an area of cultural significance, or
to terminate the use, and
(ii) no lease, licence or other estate may be granted in respect of the
land.
(5) If, after the adoption of a plan of management applying to several
areas of community land, all or part of one of those areas becomes the subject
of a resolution of the kind described in subsection (1):(a) the plan of management ceases, as from the date the declaration
took effect, to apply to that area, and
(b) a plan of management must be prepared and adopted by the council
for that area, and
(c) the plan of management so prepared and adopted must comply with
subsection (3).
36DA Location of places and items of Aboriginal significance
may be kept confidential
(1) This section applies to draft and adopted plans of management for
areas of community land, all or part of which consist of land to which section
36D applies.
(2) A council may resolve (at the request of any Aboriginal person
traditionally associated with the land concerned or on the council’s own
initiative) to keep confidential such parts of a draft or adopted plan of
management to which this section applies as would disclose the nature and
location of a place or an item of Aboriginal
significance.
(3) Despite any other provision of this Act (including sections 38, 39
and 43) or any other law, councillors and council employees are not to
disclose that part of a draft or adopted plan of management that is the
subject of a resolution of confidentiality under subsection (2), except with
the consent of the council.
(4) A draft or adopted plan of management that is the subject of a
resolution of confidentiality under subsection (2) must contain a note stating
that the whole of the plan is affected by the resolution or identifying the
parts that are so affected.
(5) A council proposing to prepare a draft plan of management to which
this section applies must (in accordance with the regulations) consult with
the appropriate Aboriginal communities regarding public access to, and use of,
information concerning any places or items of Aboriginal significance on the
land concerned.
36E Core objectives for management of community land
categorised as a natural area
The core objectives for management of community land categorised
as a natural area are:(a) to conserve biodiversity and maintain ecosystem function in
respect of the land, or the feature or habitat in respect of which the land is
categorised as a natural area, and
(b) to maintain the land, or that feature or habitat, in its natural
state and setting, and
(c) to provide for the restoration and regeneration of the land,
and
(d) to provide for community use of and access to the land in such a
manner as will minimise and mitigate any disturbance caused by human
intrusion, and
(e) to assist in and facilitate the implementation of any provisions
restricting the use and management of the land that are set out in a recovery
plan or threat abatement plan prepared under the Threatened Species Conservation Act
1995 or the Fisheries
Management Act 1994.
36F Core objectives for management of community land
categorised as a sportsground
The core objectives for management of community land categorised
as a sportsground are:(a) to encourage, promote and facilitate recreational pursuits in the
community involving organised and informal sporting activities and games,
and
(b) to ensure that such activities are managed having regard to any
adverse impact on nearby residences.
36G Core objectives for management of community land
categorised as a park
The core objectives for management of community land categorised
as a park are:(a) to encourage, promote and facilitate recreational, cultural,
social and educational pastimes and activities, and
(b) to provide for passive recreational activities or pastimes and for
the casual playing of games, and
(c) to improve the land in such a way as to promote and facilitate its
use to achieve the other core objectives for its
management.
36H Core objectives for management of community land
categorised as an area of cultural significance
(1) The core objectives for management of community land categorised
as an area of cultural significance are to retain and enhance the cultural
significance of the area (namely its Aboriginal, aesthetic, archaeological,
historical, technical or research or social significance) for past, present or
future generations by the active use of conservation
methods.
(2) Those conservation methods may include any or all of the following
methods:(a) the continuous protective care and maintenance of the physical
material of the land or of the context and setting of the area of cultural
significance,
(b) the restoration of the land, that is, the returning of the
existing physical material of the land to a known earlier state by removing
accretions or by reassembling existing components without the introduction of
new material,
(c) the reconstruction of the land, that is, the returning of the land
as nearly as possible to a known earlier state,
(d) the adaptive reuse of the land, that is, the enhancement or
reinforcement of the cultural significance of the land by the introduction of
sympathetic alterations or additions to allow compatible uses (that is, uses
that involve no changes to the cultural significance of the physical material
of the area, or uses that involve changes that are substantially reversible or
changes that require a minimum impact),
(e) the preservation of the land, that is, the maintenance of the
physical material of the land in its existing state and the retardation of
deterioration of the land.
(3) A reference in subsection (2) to land includes a reference to any
buildings erected on the land.
36I Core objectives for management of community land
categorised as general community use
The core objectives for management of community land categorised
as general community use are to promote, encourage and provide for the use of
the land, and to provide facilities on the land, to meet the current and
future needs of the local community and of the wider public:(a) in relation to public recreation and the physical, cultural,
social and intellectual welfare or development of individual members of the
public, and
(b) in relation to purposes for which a lease, licence or other estate
may be granted in respect of the land (other than the provision of public
utilities and works associated with or ancillary to public
utilities).
36J Core objectives for management of community land
categorised as bushland
The core objectives for management of community land categorised
as bushland are:(a) to ensure the ongoing ecological viability of the land by
protecting the ecological biodiversity and habitat values of the land, the
flora and fauna (including invertebrates, fungi and micro-organisms) of the
land and other ecological values of the land, and
(b) to protect the aesthetic, heritage, recreational, educational and
scientific values of the land, and
(c) to promote the management of the land in a manner that protects
and enhances the values and quality of the land and facilitates public
enjoyment of the land, and to implement measures directed to minimising or
mitigating any disturbance caused by human intrusion, and
(d) to restore degraded bushland, and
(e) to protect existing landforms such as natural drainage lines,
watercourses and foreshores, and
(f) to retain bushland in parcels of a size and configuration that
will enable the existing plant and animal communities to survive in the long
term, and
(g) to protect bushland as a natural stabiliser of the soil
surface.
36K Core objectives for management of community land
categorised as wetland
The core objectives for management of community land categorised
as wetland are:(a) to protect the biodiversity and ecological values of wetlands,
with particular reference to their hydrological environment (including water
quality and water flow), and to the flora, fauna and habitat values of the
wetlands, and
(b) to restore and regenerate degraded wetlands,
and
(c) to facilitate community education in relation to wetlands, and the
community use of wetlands, without compromising the ecological values of
wetlands.
36L Core objectives for management of community land
categorised as an escarpment
The core objectives for management of community land categorised
as an escarpment are:(a) to protect any important geological, geomorphological or scenic
features of the escarpment, and
(b) to facilitate safe community use and enjoyment of the
escarpment.
36M Core objectives for management of community land
categorised as a watercourse
The core objectives for management of community land categorised
as a watercourse are:(a) to manage watercourses so as to protect the biodiversity and
ecological values of the instream environment, particularly in relation to
water quality and water flows, and
(b) to manage watercourses so as to protect the riparian environment,
particularly in relation to riparian vegetation and habitats and bank
stability, and
(c) to restore degraded watercourses, and
(d) to promote community education, and community access to and use of
the watercourse, without compromising the other core objectives of the
category.
36N Core objectives for management of community land
categorised as foreshore
The core objectives for management of community land categorised
as foreshore are:(a) to maintain the foreshore as a transition area between the aquatic
and the terrestrial environment, and to protect and enhance all functions
associated with the foreshore’s role as a transition area,
and
(b) to facilitate the ecologically sustainable use of the foreshore,
and to mitigate impact on the foreshore by community
use.
37 Requirements of plans of management for community land
that is not owned by the council
A plan of management for community land that is not owned by the
council:(a) must identify the owner of the land, and
(b) must state whether the land is subject to any trust, estate,
interest, dedication, condition, restriction or covenant,
and
(c) must state whether the use or management of the land is subject to
any condition or restriction imposed by the owner, and
(d) must not contain any provisions inconsistent with anything
required to be stated by paragraph (a), (b) or (c).
38 Public notice of draft plans of management
(1) A council must give public notice of a draft plan of
management.
(2) The period of public exhibition of the draft plan must be not less
than 28 days.
(3) The public notice must also specify a period of not less than 42
days after the date on which the draft plan is placed on public exhibition
during which submissions may be made to the
council.
(4) The council must, in accordance with its notice, publicly exhibit
the draft plan together with any other matter which it considers appropriate
or necessary to better enable the draft plan and its implications to be
understood.
39 Notice to owner of draft plan of management
(1) Before giving public notice of a draft plan of management in
accordance with section 38, the council must forward a copy of the draft plan
to the person who owns or controls the land if the land is not owned by the
council.
(2) The council must include in the draft plan any provisions that may
properly be required by the person who owns or controls the
land.
40 Adoption of plans of management
(1) After considering all submissions received by it concerning the
draft plan of management, the council may decide to amend the draft plan or to
adopt it without amendment as the plan of management for the community land
concerned.
(2) If the council decides to amend the draft plan it must
either:(a) publicly exhibit the amended draft plan in accordance with the
provisions of this Division relating to the public exhibition of draft plans,
or
(b) if it is of the opinion that the amendments are not substantial,
adopt the amended draft plan without public exhibition as the plan of
management for the community land concerned.
(2A) If a council adopts an amended plan without public exhibition of
the amended draft plan, it must give public notice of that adoption, and of
the terms of the amended plan of management, as soon as practicable after the
adoption.
(3) The council may not, however, proceed to adopt the plan until any
public hearing required under section 40A has been held in accordance with
section 40A.
40A Public hearing in relation to proposed plans of
management
(1) The council must hold a public hearing in respect of a proposed
plan of management (including a plan of management that amends another plan of
management) if the proposed plan would have the effect of categorising, or
altering the categorisation of, community land under section 36
(4).
(2) However, a public hearing is not required if the proposed plan
would merely have the effect of altering the categorisation of the land under
section 36 (5).
(3) A council must hold a further public hearing in respect of the
proposed plan of management if:(a) the council decides to amend the proposed plan after a public
hearing has been held in accordance with this section, and
(b) the amendment of the plan would have the effect of altering the
categorisation of community land under section 36 (4) from the categorisation
of that land in the proposed plan that was considered at the previous public
hearing.
41 Amendment of plans of management
A council may amend a plan of management adopted under this
Division by means only of a plan of management so
adopted.
42 Revocation and cessation of plans of management
(1) A plan of management for community land may be revoked by a plan
of management adopted under this Division by the
council.
(2) A plan of management ceases to apply to land if:(a) the land is reclassified as operational land,
or
(b) in the case of land that is not owned by the council—the
land ceases to be controlled by the council.
43 Public availability of plans of management
A plan of management must be available for public inspection at,
and purchase from, the office of the council during ordinary office
hours.
44 Use of community land pending adoption of plan of
management
Pending the adoption of a plan of management for community land,
the nature and use of the land must not be changed.
45 What dealings can a council have in community
land?
(1) A council has no power to sell, exchange or otherwise dispose of
community land.
(2) A council may grant a lease or licence of community land, but only
in accordance with this Division.
(3) A council may grant any other estate in community land to the
extent permitted by this Division or under the provisions of another
Act.Note. The word estate has a wide
meaning. See the Interpretation Act
1987, section 21 (1).
(4) This section does not prevent a council from selling, exchanging
or otherwise disposing of community land for the purpose of enabling that land
to become, or be added to, a Crown reserve or to become, or be added to, land
that is reserved or dedicated under the National Parks and Wildlife Act
1974.
46 Leases, licences and other estates in respect of community
land—generally
(1) A lease, licence or other estate in respect of community
land:(a) may be granted for the provision of public utilities and works
associated with or ancillary to public utilities, or
(a1) may be granted for the purpose of providing pipes, conduits or
other connections under the surface of the ground for the connection of
premises adjoining the community land to a facility of the council or other
public utility provider, or
(b) may be granted, in accordance with an express authorisation in the
plan of management and such provisions of the plan of management as apply to
the granting of the lease, licence or other estate:(i) for a purpose prescribed by subsection (4), or for a purpose
prescribed by any of sections 36E to 36N as a core objective of the
categorisation of the land concerned, or
(ii) for a purpose prescribed by the regulations, if the plan of
management applies to several areas of community land, or
(iii) for a short-term, casual purpose prescribed by the regulations,
or
(iv) for a residential purpose in relation to housing owned by the
council, or
(v) (Repealed)
(c) may be granted in order to allow a filming project to be carried
out, whether or not the project is in accordance with the plan of management
or is consistent with the core objectives of the categorisation of the land
concerned,
but may not otherwise be granted.
(2) Despite subsection (1), a lease, licence or other estate in
respect of community land may be granted for a purpose mentioned in subsection
(1) (b) only if the purpose for which it is granted is consistent with the
core objectives, as prescribed in this Part, of its
categorisation.
(3) A council must not grant a lease or licence for a period
(including any period for which the lease or licence could be renewed by the
exercise of an option) exceeding 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 2A Environmental upgrade agreements
54C Definitions
In this Part:environmental
upgrade agreement—see section 54D.
environmental upgrade
charge—see section 54G.
environmental upgrade
works—see section 54E.
owners
corporation for a strata scheme means the owners corporation for the
strata scheme constituted under the Strata
Schemes Management Act 1996.
strata
building means a building containing a lot or part of a lot that is
the subject of a strata scheme.
strata
scheme means a strata scheme under the Strata Schemes (Freehold Development) Act
1973 or a leasehold strata scheme under the Strata Schemes (Leasehold Development) Act
1986.
54D Environmental upgrade agreement
(1) A council may enter into an environmental upgrade agreement with a
building owner and a finance provider in relation to a
building.
(2) An environmental
upgrade agreement is an agreement under which:(a) a building owner agrees to carry out environmental upgrade works
in respect of a building, and
(b) a finance provider agrees to advance funds to the building owner
to finance those environmental upgrade works, and
(c) the council agrees to levy a charge on the relevant land for the
purpose of repaying the advance to the finance
provider.
(3) A building owner is a person who is the owner of the land on which
the building is erected.
(4) For a building erected on land that is the subject of a strata
scheme, the owners corporation for the strata scheme is taken to be the
building owner.
(5) The function of entering into an environmental upgrade agreement
can be delegated by a council only to the general manager of the council. The
delegation must specify the building or buildings to which the delegation
relates.
(6) Other persons may also be party to an environmental upgrade
agreement.
54E What are environmental upgrade works?
(1) For the purposes of this Part, environmental
upgrade works are works to improve the energy, water or
environmental efficiency or sustainability of the building to which the
agreement relates.
(2) Environmental upgrade works include any works declared by the
regulations to be environmental upgrade works.
(3) Environmental upgrade works do not include any works declared by
the regulations to be excluded works.
(4) More than one environmental upgrade agreement may be entered into
in relation to the same environmental upgrade
works.
54F Buildings that can be subject of environmental upgrade
agreement
(1) An environmental upgrade agreement must relate to an existing
building (that is, a building that is complete and ready for lawful use and
occupation at the time the agreement is entered
into).
(2) The building must be a non-residential building or a strata
building that is the subject of a multi-residence
scheme.
(3) A non-residential building is a building used wholly or
predominantly for commercial, industrial or other non-residential
purposes.
(4) A multi-residence scheme is a strata scheme comprising more than
20 lots (disregarding utility lots and lots used for
parking).
(5) The building must be located in the council’s area at the
time that the agreement is entered into.
54G Contents of environmental upgrade agreement
(1) An environmental upgrade agreement must specify the
following:(a) the environmental upgrade works to be carried out by or on behalf
of the building owner under the agreement,
(b) the amount of the advance or advances to be made by the finance
provider under the agreement,
(c) the arrangements for repayment of the advance or advances (the
agreed
repayment arrangements).
(2) The agreed repayment arrangements may require the council to levy
a charge (an environmental
upgrade charge) for the purpose of discharging the building
owner’s obligation to repay the advance or advances made by the finance
provider under the agreement (including any interest or other charges payable
under the agreement).
(3) The agreed repayment arrangements must specify:(a) the amount of the environmental upgrade charge or charges to be
levied by the council under the agreement (or a method for calculating the
amount of the charge or charges), and
(b) the date or dates on which the charge or charges are to be levied
by the council, and
(c) any adjustments to be made to the charge or charges in the event
of late payment.
(4) Money paid to a council in respect of an environmental upgrade
charge is to be paid by the council to the finance provider in accordance with
the environmental upgrade agreement.
(5) An environmental upgrade agreement may permit the early repayment
of any amount payable under the agreement.
(6) An environmental upgrade agreement must be in
writing.
(7) An environmental upgrade agreement may include any other
provisions agreed to by the parties.
(8) An environmental upgrade agreement may be varied or terminated by
further agreement between the council, the finance provider and the building
owner for the time being.
54H Council fees under agreement
(1) An environmental upgrade agreement may authorise a council to
deduct from any money paid in respect of an environmental upgrade charge, and
retain, as a council fee:(a) a service fee, being a fee to cover any costs incurred by the
council in entering into, or administering, the agreement,
and
(b) a late payment fee, being the amount, or a part of the amount,
charged under the agreement for late payment of an environmental upgrade
charge.
(2) The environmental upgrade agreement must specify the amount of, or
a method for calculating, any such council fee.
(3) Part 10 of Chapter 15 does not apply in respect of a council fee
charged under an environmental upgrade agreement.
(4) However, section 610D applies to the service fee component of the
council fee.
54I Power to levy environmental upgrade charge
(1) A council may levy an environmental upgrade charge in accordance
with an environmental upgrade agreement.
(2) An environmental upgrade charge may be levied only on the land on
which the building to which the environmental upgrade agreement relates is
erected or, in the case of a strata building, the land that is the subject of
the relevant strata scheme.
54J Application of other charge provisions to environmental
upgrade charge
(1) The relevant provisions apply in respect of an environmental
upgrade charge in the same way as they apply in respect of a charge levied
under Chapter 15.
(2) The relevant
provisions are the following provisions:(a) Chapter 15—sections 543, 544, 545, 546 (1), (3), (4) and
(5), 550, 561, 569, 571, 573, 602 and 603,
(b) Chapter 17—sections 695, 696 and 712 and Division 5 of Part
2.
(3) The relevant provisions apply with the following
modifications:(a) in section 545, a reference to a provision of Part 4 of Chapter 15
is taken to include a reference to a provision of this
Part,
(b) in section 550, a reference to a rate or charge levied under this
Act is taken to include a reference to any amount charged under an
environmental upgrade agreement for late payment of an environmental upgrade
charge.
(4) The regulations may further apply, disapply or modify the
operation of any provision of this Act that relates to charges levied by a
council in respect of an environmental upgrade
charge.
54K Special provisions relating to strata
buildings
(1) An environmental upgrade charge that is levied in respect of land
that is the subject of a strata scheme is payable by the owners corporation
for that strata scheme.
(2) This section has effect despite section 561, as applied by this
Part.
(3) An owners corporation may determine whether environmental upgrade
charges are to be paid from its sinking fund or its administrative
fund.
(4) An owners corporation for a strata scheme must, on the request of
an owner of a lot that forms part of the strata scheme, provide to the owner a
copy of any environmental upgrade agreement that relates to premises the
subject of the strata scheme.
(5) The regulations may disapply or modify the operation of any
provision of the Strata Schemes Management
Act 1996 in relation to environmental upgrade
charges.
54L Payment of environmental upgrade charge
(1) An environmental upgrade charge is to be paid within 28 days after
notice of the charge is served on the person liable to pay
it.
(2) When an environmental upgrade charge is paid to a council, the
council may deduct from the payment, and retain, any amount that the council
is authorised to deduct and retain as a council fee under the
agreement.
(3) Money paid to a council in respect of an environmental upgrade
charge, other than any council fee retained by the council, must be held,
pending its payment to the finance provider to which it is to be paid, in the
council’s trust fund in trust for the finance
provider.
(4) A separate account is to be established in the council’s
trust fund for money paid in respect of environmental upgrade
charges.
(5) Money paid to a council in respect of an environmental upgrade
charge does not form part of the council’s general income under Part 2
of Chapter 15.
54M Liability of council to recover charge
(1) A council must use its best endeavours to recover an environmental
upgrade charge in accordance with any requirements imposed on it by an
environmental upgrade agreement.
(2) However, a council is not liable for any failure by a person to
pay an environmental upgrade charge or part of an environmental upgrade
charge.
(3) Accordingly, any such failure does not make the council liable to
pay the outstanding amount to the finance provider.
54N Recovery of contributions from lessees
(1) A provision of a lease may require a lessee to pay to the lessor a
contribution towards an environmental upgrade charge payable under an
environmental upgrade agreement that relates to premises that are the subject
of the lease.
(2) The amount recoverable by the lessor as a contribution must not
exceed a reasonable estimate of the cost savings to be made by the lessee, as
a consequence of the environmental upgrade works provided for by the
environmental upgrade agreement, during the period to which the contribution
relates.
(3) An environmental upgrade agreement may make provision for the
recovery of contributions by a lessor (including by providing for the
methodology by which the cost savings to be made by a lessee are to be
estimated), in which case a contribution is recoverable only in accordance
with that agreement.
(4) The methodology may permit both savings made directly by the
lessee and a proportion of savings made by all occupants of the relevant
building to be counted towards the cost savings made by the
lessee.
(5) The parties to a lease may agree that subsections (2)–(4) do
not apply in respect of the lease. In such a case, the lease may make
alternative provision for the payment by the lessee of a contribution towards
an environmental upgrade charge payable under an environmental upgrade
agreement.
(6) A lessor is not entitled to recover a contribution from a lessee
towards the payment of an environmental upgrade charge unless the lessor
provides to the lessee, on request by the lessee, a copy of the environmental
upgrade agreement to which the contribution
relates.
(7) This section applies despite section 23 of the Retail Leases Act 1994 and section
40 of the Residential Tenancies Act
2010.
(8) To avoid doubt, a contribution referred to in this section is an
outgoing for the purposes of the Retail
Leases Act 1994.Note. See, in particular, section 27 of the Retail Leases Act
1994.
(9) The regulations may make further provision for or with respect to
the making of contributions towards environmental upgrade charges by
lessees.
(10) In particular, the regulations may disapply or modify the
operation of any provision of the Retail
Leases Act 1994 or the Residential Tenancies Act 2010 in
relation to any such contribution.
(11) In this section:lease
means an agreement under which a person grants to another person for value a
right of occupation of premises.
54O Agreements to be made on a voluntary basis
(1) Entry into an environmental upgrade agreement is
voluntary.
(2) A council must not require a person to enter into an environmental
upgrade agreement, whether as a condition of a development consent or a
requirement of an order under the Environmental Planning and Assessment Act
1979 or by any other means.
(3) This section does not prevent a planning agreement under the
Environmental Planning and Assessment Act
1979 making provision for entry into an environmental upgrade
agreement.
54P Reporting requirements
(1) A council must include particulars of any environmental upgrade
agreement entered into by the council in its annual report, in accordance with
any requirements imposed under section 406.
(2) The Director-General is to consult with the Director-General of
the Department of Environment, Climate Change and Water regarding the
requirements that are to apply under that section in respect of environmental
upgrade agreements.
(3) A council is authorised to disclose information about any
environmental upgrade agreement to which it is a party to the Director-General
of the Department of Environment, Climate Change and
Water.
(4) A council is required to disclose any information about an
environmental upgrade agreement to which it is a party that is requested by
the Director-General of the Department of Environment, Climate Change and
Water.
54Q Guidelines
(1) The Minister for Climate Change and the Environment may, with the
concurrence of the Minister administering this Act, from time to time prepare,
adopt or vary guidelines relating to environmental upgrade agreements and the
functions of councils under this Part.
(2) In particular, the guidelines may specify provisions that may be
included in an environmental upgrade agreement with respect to:(a) the making of contributions by lessees towards environmental
upgrade charges payable under an agreement (including by providing for the
methodology by which the cost savings to be made by a lessee as a consequence
of environmental upgrade works are to be estimated), and
(b) progress or implementation reports to be made by a building owner
under an environmental upgrade agreement.
(3) The methodology may permit both savings made directly by the
lessee and a proportion of savings made by all occupants of the relevant
building to be counted towards the cost savings made by the
lessee.
(4) A council must take the guidelines into consideration before
exercising any of its functions under this Part.
(5) The regulations may adopt the guidelines, or any part of the
guidelines, as mandatory requirements.
(6) A council must comply with any mandatory requirements of the
guidelines in exercising its functions under this
Part.
(7) Guidelines made under this section are to be published in the
Gazette.
54R Changes to council area
The functions of a council under an environmental upgrade
agreement may be exercised by any council to which the assets, rights and
liabilities of the council with respect to the agreement are transferred by
proclamation referred to in section 213.
Part 3 Restraints and qualifications that apply to service
functions
Division 1 Tendering
55 What are the requirements for tendering?
(1) A council must invite tenders before entering into any of the
following contracts:(a) a contract to carry out work that, by or under any Act, is
directed or authorised to be carried out by the council,
(b) a contract to carry out work that, under some other contract, the
council has undertaken to carry out for some other person or
body,
(c) a contract to perform a service or to provide facilities that, by
or under any Act, is directed or authorised to be performed or provided by the
council,
(d) a contract to perform a service or to provide facilities that,
under some other contract, the council has undertaken to perform or provide
for some other body,
(e) a contract for the provision of goods or materials to the council
(whether by sale, lease or otherwise),
(f) a contract for the provision of services to the council (other
than a contract for the provision of banking, borrowing or investment
services),
(g) a contract for the disposal of property of the
council,
(h) a contract requiring the payment of instalments by or to the
council over a period of 2 or more years,
(i) any other contract, or any contract of a class, prescribed by the
regulations.
(2) Tenders are to be invited, and invitations to tender are to be
made, by public notice and in accordance with any provisions prescribed by the
regulations.
(2A) Nothing in this section prevents a council from tendering for any
work, service or facility for which it has invited
tenders.
(3) This section does not apply to the following contracts:(a) subject to the regulations, a contract for the purchase of goods,
materials or services specified by a person prescribed by the regulations made
with another person so specified, during a period so specified and at a rate
not exceeding the rate so specified
(b) a contract entered into by a council with the Crown (whether in
right of the Commonwealth, New South Wales or any other State or a Territory),
a Minister of the Crown or a statutory body representing the
Crown
(c) a contract entered into by a council with another
council
(d) a contract for the purchase or sale by a council of
land
(e) a contract for the leasing or licensing of land by the council,
other than the leasing or licensing of community land for a term exceeding 5
years to a body that is not a non-profit organisation (see section
46A)
(f) a contract for purchase or sale by a council at public
auction
(g) a contract for the purchase of goods, materials or services
specified by the 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
(h) a contract for the employment of a person as an employee of the
council
(i) a contract where, because of extenuating circumstances, remoteness
of locality or the unavailability of competitive or reliable tenderers, a
council decides by resolution (which states the reasons for the decision) that
a satisfactory result would not be achieved by inviting
tenders
(j) contract for which, because of provisions made by or under another
Act, a council is exempt from the requirement to invite a
tender
(k) a contract made in a case of emergency
(l) a contract to enter into a public-private
partnership
(m) if a council has entered into a public-private partnership—a
contract entered into by the council for the purposes of carrying out a
project under the public-private partnership (but only to the extent that the
contract is part of the project that has been assessed or reviewed under Part
6 of Chapter 12)
(n) a contract involving an estimated expenditure or receipt of an
amount of less than $100,000 or such other amount as may be prescribed by the
regulations
(o) a contract that is an environmental upgrade agreement (within the
meaning of Part 2A)
(p) a contract or arrangement between a council and the Electoral
Commissioner for the Electoral Commissioner to administer the council’s
elections, council polls and constitutional
referendums.
(4) A council that invites tenders from selected persons only is taken
to comply with the requirements of this section if those persons are
selected:(a) from persons who have responded to a public advertisement for
expressions of interest in the particular contract for which tenders are being
invited, or
(b) from persons who have responded to a public advertisement for
recognition as recognised contractors with respect to contracts of the same
kind as that for which tenders are being invited.
(5)–(7) (Repealed)
55A Extended operation of section 55 to council-related
entities
(1) A council must comply with the requirements of section 55
(including any regulations made under that section) even though the contract
to which that section applies involves something being done to or by an entity
that the council has formed or participated in
forming.
(2) However, if the entity concerned is formed under a public-private
partnership, subsection (1) has effect only to the extent that the contract is
not part of a project that has been assessed or reviewed in accordance with
Part 6 of Chapter 12.
(3) In this section:entity means any
partnership, trust, corporation, joint venture, syndicate or other body
(whether or not incorporated), but does not include any such entity that is of
a class prescribed by the regulations as not being within this
definition.
Division 2 Water supply, sewerage and stormwater drainage
works and facilities
56 Application of Division
(1) The provisions of this Division relating to water supply and
sewerage (but not stormwater drainage) do not apply to:(a) land within the area of operations of the Sydney Water Board under
the Sydney Water Act 1994,
or
(b) land within the area of operations of the Hunter Water Board under
the Hunter Water Act
1991.
(2) The provisions of this Division (sections 57, 58 and 59 excepted)
relating to water supply and sewerage (but not stormwater drainage) do not
apply to land within the area of operations of a water supply authority
constituted under the Water Management Act
2000.
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.
68B Approvals not personal property under Personal Property Securities Act 2009
(Cth)
An approval under this Part is declared not to be personal
property for the purposes of the Personal Property
Securities Act 2009 of the Commonwealth.Note. The Personal Property Securities Act
2009 of the Commonwealth does not apply in relation to a
right, licence or authority granted by or under a law of a State that is
declared by the law not to be personal property for the purposes of that
Act.
Division 2 Crown activities
69 Crown exemption from approval to do things incidental to
erection or demolition of building
Section 68 does not require the Crown or a person prescribed by
the regulations to obtain the approval of a council to do anything that is
incidental to the erection or demolition of a
building.
70, 71 (Repealed)
72 Determination of applications by the Crown
(1) A council, in respect of an application for approval made by the
Crown or a person prescribed by the regulations, must not:(a) refuse to grant approval, except with the written consent of the
Minister, or
(b) impose a condition of an approval, except with the written consent
of the Minister or the applicant.
(2) If the council proposes to refuse to grant approval or to impose a
condition of approval, it must immediately notify the
applicant.
(3) After the applicant is so notified, the council must submit to the
Minister:(a) a copy of the application for approval, and
(b) details of its proposed determination of the application,
and
(c) the reasons for the proposed determination,
and
(d) any relevant reports of another public
authority.
(4) The applicant may refer the application to the Minister whether or
not the council complies with subsection (3).
(5) After receiving the application from the council or the applicant,
the Minister must notify the council and the applicant of:(a) the Minister’s consent to the refusal of approval,
or
(b) the Minister’s consent to the imposition of the
council’s proposed conditions, or
(c) the Minister’s intention not to agree with the
council’s proposed refusal and the period within which the council may
submit any conditions it wishes to impose as conditions of approval,
or
(d) the Minister’s refusal to agree with the council’s
proposed conditions and any conditions to which the Minister’s consent
may be assumed.
(6) At the end of the period specified in subsection (5) (c), the
Minister must notify the council and the applicant:(a) whether the Minister consents to the imposition of any of the
conditions submitted by the council during that period and, if so, which
conditions, or
(b) of the conditions to which the Minister’s consent may be
assumed.
(7) The Minister must notify the council and the applicant of the
reasons for a decision under subsection (5) or (6).
(8) If the council does not determine the application within the
period notified by the Minister for the purpose, the council is taken, on the
expiration of that period, to have determined the application in accordance
with the Minister’s consent.
73 Effect of council’s failure to determine Crown
application
(1) If the council does not determine an application to which section
72 applies within the relevant period specified in section 105, the council is
taken, on the expiration of that period, to have refused the
application.
(2) If the application is taken to have been refused, the applicant
may refer the application to the Minister for
determination.
(3) The Minister may determine an application so referred to the
Minister.
(4) The Minister’s determination has effect as if it were a
determination of the council.
74 Prohibition on appeals concerning Crown
applications
No review or appeal lies against a determination that the council
is taken to have made under section 72 (8) or a decision or determination of
the Minister under section 72 or 73.
Division 3 Making and determination of applications for
approval—generally
75 Applications for approval
An application may be made to the council for an approval under
this Part.
76 What may an application relate to?
The application may relate to:• the whole or part of an activity
• the whole or any part of land on which the activity is proposed to
be carried out
• more than one activity.
77 Relevant regulations and local policies to be brought to
notice of intending applicants
A council must take such steps as are reasonably practicable to
bring the existence of any relevant regulations and any relevant local policy
adopted under Part 3 to the notice of any person it knows to be an intending
applicant for an approval.
78 Who may make an application?
(1) An application may be made by the person seeking to carry out the
activity for which the council’s approval is
required.
(2) If the application applies to particular land, the applicant must
be the owner of the land or a person who has the consent of the
owner.
(3) If the Crown is the owner of the land, the application may be made
by or with the consent of a Minister or a person authorised for the purpose by
a Minister.
79 What is the form of application?
An application must be made in the approved
form.
80 Is there an application fee?
(1) An application must be accompanied by the approved
fee.
(2) A council may require payment of a further approved fee if the
application is subsequently amended.
81 What matters must accompany an application?
An application must be accompanied by such matters as may be
prescribed by the regulations and such matters specified by the council as may
be necessary to provide sufficient information to enable the council to
determine the application.
82 Objections to application of regulations and local
policies
(1) An applicant for an approval may lodge with the council an
objection:(a) that the regulations or a local policy adopted under Part 3 by the
council relating to the activity for which approval is sought do not make
appropriate provision with respect to that activity, or
(b) that compliance with any provision of those regulations or such a
policy is unreasonable or unnecessary in the particular circumstances of the
case.
(2) The applicant must specify the grounds of the
objection.
(3) If the objection relates to the regulations and the council is
satisfied that the objection is well founded, it may, with the concurrence of
the Director-General, in determining the application, direct that:(a) such provisions of any regulation relating to that activity as are
specified in the direction:(i) are not to apply, or
(ii) are to apply with such modifications as are specified in the
direction,
in respect of the carrying out of that activity, or
(b) such requirements as are specified in the direction are to apply
to the carrying out of that activity,
or give directions under both paragraphs (a) and
(b).
(3A) If the objection relates to a local policy adopted under Part 3 by
the council and the council is satisfied that the objection is well founded,
it may, in determining the application, direct that:(a) such provisions of any local policy relating to that activity as
are specified in the direction:(i) are not to apply, or
(ii) are to apply with such modifications as are specified in the
direction,
in respect of the carrying out of that activity, or
(b) such requirements as are specified in the direction are to apply
to the carrying out of that activity,
or give directions under both paragraphs (a) and (b) and the council must
give the reasons for its direction or directions.
(3B) An objection is well founded for the purposes of subsection (3A)
only if the council is satisfied that no person or the public interest will be
adversely affected by the variation and that any variation is consistent with
the principles of ecologically sustainable
development.
(4) Any direction given by the council under subsection (3) or (3A),
if the council’s approval to the application concerned is granted, has
effect according to its tenor and, in the case of a direction referred to in
subsection (3) (a) (ii) or (b) or subsection (3A) (a) (ii) or (b), is a
condition of that approval.
83 Ownership and use of plans and specifications
One copy of any plans and specifications accompanying an
application becomes the property of the council, but must not be used for any
purpose other than giving effect to the provisions of this Act or any other
Act.Note. This section does not prevent the use of the plans and
specifications for other purposes with the consent of the applicant and with
any other necessary consent.
84 Acknowledgment of application
The council, on receiving an application, must give written
acknowledgment to the applicant of its receipt, unless the council rejects the
application under section 85.
85 Rejection of unclear or illegible applications
(1) The council may reject an application within 7 days after its
receipt if it is not clear as to the approval sought or if it is not easily
legible.
(2) An application so rejected is taken not to have been made and the
application fee is to be refunded.
86 Request for more information
(1) The council may, before it determines or is taken to have
determined an application, request an applicant to provide it with more
information that is reasonably necessary to enable the proper determination of
the application.
(2) The request must be made within 21 days after the council receives
the application.
(3) The information must be provided within a reasonable period
specified by the council for the purpose, subject to subsection
(4).
(4) The period of time that elapses between the date of the
council’s request and the date on which:(a) the information is provided, or
(b) the applicant notifies the council that the information will not
be provided, or
(c) the period specified by the council
ends,
whichever is the sooner, is not to be taken into consideration in
calculating the period referred to in section 105.
(5) A second or subsequent request for information may be made by the
council, but such a request has no effect for the purposes of section
105.
87 Amendment of applications
(1) An applicant, at any time before the application is determined,
may make a minor amendment to the application and may amend any matter
accompanying the application.
(2) The making of a minor amendment does not require the application
to be further notified to anyone.
(3) For the purposes of section 105, the application is taken not to
have been made until the amendment is made.
88 Withdrawal of applications
(1) An applicant may withdraw an application at any time before its
determination by the council by giving the council notice to that effect
signed by the applicant.
(2) An application withdrawn under this section is taken for the
purposes of this Act never to have been made.
(3) However, the question whether the application fee should be
refunded is at the absolute discretion of the
council.
89 Matters for consideration
(1) In determining an application, the council:(a) must not approve the application if the activity or the carrying
out of the activity for which approval is sought would not comply with the
requirements of any relevant regulation, and
(b) must take into consideration any criteria in a local policy
adopted under Part 3 by the council which are relevant to the subject-matter
of the application, and
(c) must take into consideration the principles of ecologically
sustainable development.
(2) If no requirements are prescribed for the purposes of subsection
(1) (a), and no criteria are adopted for the purposes of subsection (1) (b),
the council in determining an application:(a) is to take into consideration, in addition to the principles of
ecologically sustainable development, all matters relevant to the application,
and
(b) is to seek to give effect to the applicant’s objectives to
the extent to which they are compatible with the public
interest.
(3) Without limiting subsection (2), in considering the public
interest the matters the council is to consider include:(a) protection of the environment, and
(b) protection of public health, safety and convenience,
and
(c) any items of cultural and heritage significance which might be
affected.
90 Concurrence
(1) The council must not grant an approval in relation to a matter for
which this Act or a regulation requires the council to obtain the concurrence
of some other person or authority unless the council has obtained the
concurrence of the person or authority.
(2) The person or authority may give the council notice that the
concurrence may be assumed with such qualifications or conditions as are
specified in the notice.
(3) The person or authority may amend its notice by a further
notice.
(4) An approval given in accordance with a notice in force under this
section is as valid as it would be if the council had obtained the concurrence
of the person or authority concerned.
(5) Concurrence is to be assumed if at least 40 days have passed since
concurrence was sought and the person or authority has not, within that
period, expressly refused concurrence.
91 Giving effect to concurrence
(1) In granting an approval for which the concurrence of a person or
authority has been given or may be assumed, the council must grant the
approval subject to any conditions of the concurrence (whether the concurrence
is given under section 90 (1) or (2)).
(2) This section does not affect the council’s right to impose
conditions under this Division not inconsistent with the conditions referred
to in subsection (1) or to refuse approval.
92 Approval where an accreditation is in force
A council must not refuse to give its approval to an activity on
the ground that any component, process or design relating to the activity is
unsatisfactory if the component, process or design is accredited under
Division 5 or under the regulations under the Environmental Planning and Assessment Act
1979.
93 Certification by qualified persons
(1) A council or the Minister may be satisfied that:(a) a particular design, material, process or product complies with a
criterion for approval, or
(b) an activity has been carried out in compliance with an
approval,
by relying on a certificate to that effect from an appropriately
qualified person.
(2) A certificate relating to a particular design, material, process
or product must specify the particular criterion with which the design,
material, process or product complies.
(3) The council or the Minister must rely on such a certificate if it
is from an appropriately qualified person and is furnished by a public
authority.
Note. Sections 92 and 93 specify circumstances in which a council does
not have to form an independent judgment about some aspect of an activity for
which approval is being sought, but may rely on an accreditation or
certification of a competent person.A component, process or design relating to an activity may be
accredited in accordance with the procedure set out in Division 5 of this
Part.
Section 732 exempts a council, councillor or employee of a council
from liability that would otherwise be incurred as a consequence of relying on
an accreditation or certification.
94 Determination of application
(1) The council may determine an application:(a) by granting approval to the application, either unconditionally or
subject to conditions, or
(b) by refusing approval.
(2) This section does not affect section
72.
95 “Deferred commencement” approval
(1) An approval may be granted subject to a condition that the
approval is not to operate until the applicant satisfies the council as to any
matter specified in the condition. Nothing in this Act prevents a person from
doing such things as may be necessary to comply with the
condition.
(2) Such an approval must be clearly identified as a “deferred
commencement” approval (whether by the use of that expression or by
reference to this section or otherwise).
(3) A “deferred commencement” approval must clearly
distinguish conditions concerning matters as to which the council must be
satisfied before the approval can operate from any other
conditions.
(4) A council may specify the period in which the applicant must
produce evidence to the council sufficient to enable it to be satisfied as to
those matters.
(5) The applicant may produce evidence to the council sufficient to
enable it to be satisfied as to those matters and, if the council has
specified a period for the purpose, the evidence must be produced within that
period.
(6) If the applicant produces evidence in accordance with this
section, the council must notify the applicant whether or not it is satisfied
as to the relevant matters. If the council has not notified the applicant
within the period of 28 days after the applicant’s evidence is produced
to it, the council is, for the purposes only of section 177, taken to have
notified the applicant that it is not satisfied as to those matters on the
date on which that period expires.
96 Staged approval
(1) An approval may be granted:(a) for the activity or one or more of the activities for which the
approval is sought, or
(b) for such an activity, except for a specified part or aspect of the
activity, or
(c) for a specified part or aspect of such an
activity.
(2) Such an approval may be granted subject to a condition that the
activity or the specified part or aspect of the activity, or any thing
associated with the activity or the carrying out of the activity, must be the
subject of:(a) a further approval, or
(b) a consent, approval or permission under another
Act,
or both.
97 Conditions concerning security
(1) An approval may be granted subject to a condition that the
applicant provides to the council security for the payment of the cost of
either or both of the following:(a) making good any damage that may be caused to any council property
as a consequence of doing or not doing any thing to which the approval
relates,
(b) completing any works (other than works prescribed by the
regulations) that may be required in connection with the
approval.
Note. Works the completion of which may be required in connection with
an approval could include footpaths, kerbing and guttering, road works, trunk
drainage and environmental controls.
(2) The security is to be for such reasonable amount as is determined
by the council and specified in the condition.
(3) The security may be provided, at the applicant’s choice,
by:(a) a deposit with the council, or
(b) a guarantee satisfactory to the
council.
(4) Security provided by way of deposit may be paid out to meet any
cost referred to in subsection (1).
(5) A security deposit (or part) if repaid to the person who provided
it is to be repaid with any interest accrued on the deposit (or part) as a
consequence of its investment.
98 Other conditions
(1) An approval may be granted subject to a condition that a specified
aspect of the activity that is ancillary to the core purpose of the activity
is to be carried out to the satisfaction of the council or a person specified
by the council.
(2) An approval is subject to any condition prescribed by the
regulations as a condition of the approval.
99 Notice to applicant of determination of
application
(1) The council (or the Minister in the case of a determination by the
Minister under section 72) must give notice of the determination of an
application to the applicant as soon as practicable after the
determination.
(2) The date of the determination and the date from which the approval
operates (if approval is granted) must be endorsed on the
notice.
(3) In the case of an approval granted subject to a condition that the
approval is not to operate until the applicant satisfies the council as to any
matter specified in the condition (a “deferred commencement”
approval):(a) the date from which the approval operates must not be endorsed on
the notice, and
(b) if the applicant satisfies the council as to the matter, the
council must, as soon as practicable after being satisfied, give notice to the
applicant of the date from which the approval
operates.
(4) If the determination is made by the granting of approval subject
to conditions or by refusing approval, the notice must notify the
applicant:(a) of the council’s (or the Minister’s) reasons for the
imposition of each condition or for refusing approval, and
(b) of the provisions of this Act conferring a right of review of the
determination (if relevant) and, in the case of a determination by the
council, a right of appeal against the
determination.
100 Review of determination
(1) An applicant may request the council to review a determination of
the applicant’s application.
(2) The request for a review must be made within 28 days after the
date of the determination.
(3) An approved fee must, if required by the council, be paid in
connection with a request for a review.
(4) The council may review the determination and, as a consequence of
its review, may confirm or change the
determination.
(4A) The decision whether or not to review the determination must not
be made by the person who made the determination, unless that person was the
council, but is to be made by a person who is qualified under subsection (5)
to make the review.
(5) If the council reviews the determination, the review must be made
by:(a) if the determination was made by a delegate of the
council—the council or another delegate of the council who is not
subordinate to the delegate who made the determination, or
(b) if the determination was made by the council—the
council.
(6) The council must give notice of the result of the review to the
applicant as soon as practicable after the review.
(7) The date of review must be endorsed on the
notice.
(8) If, as a consequence of a review, the council changes a
determination, the changed determination replaces the earlier determination as
from the date of the review.
(9) A determination on a review may not be further reviewed under this
section.
101 Date from which approval operates
(1) An approval operates from the date specified for the purpose in
the notice under section 99 or 100, subject to this section and section
102.
(2) If an appeal is made (and not withdrawn) against an approval
granted on the determination of an application, the approval does not operate
until the date of the decision on that appeal, except where that decision is
to refuse approval.
(3) An approval is void and (except for the purposes of section 176)
is taken never to have been granted if an appeal under section 176 is
dismissed and approval is refused.
(4) If a determination is made by refusing approval or if an
application is taken by section 105 to have been so determined, and the
decision on the appeal made under section 176 in respect of that determination
has the effect of granting approval, the decision is taken to be an approval
granted under this Part and the approval operates from the date of that
decision.
(5) An approval in respect of an application that is taken to have
been approved under section 72 operates from the date on which it is taken to
have been approved.
102 Insurance for residential building work
(1) This section applies if the council approves (whether or not
subject to conditions) of the doing of any residential building work (within
the meaning of the Home Building Act
1989) other than work by an
owner-builder.
(2) The council must not forward or deliver to the applicant or any
other person a copy of the plans and specifications submitted to it with the
application unless:(a) it is satisfied that the builder or other person who is to do the
residential building work has complied with the applicable requirements of
Part 6 of the Home Building Act
1989, and
(b) it has endorsed on the copy that it is so
satisfied.
(3) Even though the council has approved of the doing of any such
work, the approval has no effect unless the council has so endorsed a copy of
the plans and specifications and forwarded or delivered the copy to the
applicant after that approval was given.
(4) If the builder or person who is to do the residential building
work is not known when the work is approved by the council, subsections (2)
and (3) do not apply and subsection (5) applies
instead.
(5) The council must grant the approval subject to a condition that
the builder or person who does the residential building work complies with the
applicable requirements of Part 6 of the Home Building Act
1989.
102A Evidence of insurance-related matters
(1) A statement purporting to be signed by an owner of land and
declaring that:(a) the owner intends to do residential building work (within the
meaning of the Home Building Act
1989) on the land, and
(b) the reasonable market cost of the labour and materials involved in
the work is not high enough for the owner to need an owner-builder permit to
do the work,
is, for the purpose of the council’s making an endorsement,
sufficient evidence of the matter referred to in subsection (1)
(b).
(2) A certificate purporting to be issued by an approved insurer under
Part 6 of the Home Building Act
1989 to the effect that a person is the holder of an insurance
policy issued for the purposes of that Part is, for the purpose of the
council’s making an endorsement, sufficient evidence that the person has
complied with the requirements of that Part.
103 When does an approval lapse?
(1) An approval lapses:(a) 5 years after the date from which it operates, except as provided
by paragraph (b), or
(b) in the case of an approval that is subject to a condition under
section 96 (2), 2 years after the date on which the last approval, consent or
permission required to be obtained in accordance with the condition
operates.
(2) A council, in granting an approval, may vary either or both of the
periods referred to in subsection (1).
(3) Such a variation may not be made so as to cause:(a) (Repealed)
(b) an approval of a kind prescribed by the regulations to lapse
within the period prescribed by the regulations in relation to the
approval.
(4) This section does not prevent the extension or renewal of an
approval under section 107.
(5) In this section, vary means increase or
reduce.
104 (Repealed)
105 Circumstances in which approval is taken to have been
refused
(1) If the council has not determined an application:(a) within the period of 40 days after the application is lodged with
it, except as provided by paragraph (b), or
(b) within the period of 80 days after the application is lodged with
it in the case of an application for which the concurrence of a person or
authority is required by or under this Act,
the council is, for the purposes only of section 176, taken to have
determined the application by refusing approval on the date on which that
period expires.
(2) Nothing in subsection (1) prevents the council from determining an
application after the expiration of the 40-day or 80-day period, whether on a
review under section 100 or otherwise.
(3) A determination under subsection (2) does not prejudice or affect
the continuance or determination of an appeal made under section 176 in
respect of a determination that is taken under subsection (1) to have been
made, subject to subsection (4).
(4) Where a determination under subsection (2) is made by granting
approval, the council is entitled, with the consent of the applicant and
without prejudice to costs, to have an appeal made under section 176 in
respect of a determination that is taken by subsection (1) to have been made,
withdrawn at any time before the appeal is
determined.
106 Can approvals be amended?
(1) A person to whom an approval is granted or any other person
entitled to act on an approval may apply to the council to amend the
approval.
(2) Sections 78–86, 89, 97–99 and 105 apply to an
application to amend an approval in the same way as they apply to an
application for approval.
(3) The council may amend an approval if:(a) it is satisfied that the approval as amended will be substantially
the same as the original approval, and
(b) it is satisfied that no prejudice will be caused to any person who
made a submission concerning the application for the original approval,
and
(c) it has consulted with any person or authority whose concurrence to
the original approval was required to be obtained and the person or authority
has not, within 21 days after being consulted, objected to the amendment of
the original approval.
(4) (Repealed)
(5) If the council amends an approval under this section, the amended
approval replaces the original approval as from the date endorsed on the
notice of determination of the application.
(6) In the case of an approval granted by the Land and Environment
Court, a reference in this section to the council is taken to be a reference
to the Court, but no appeal lies from the Court’s determination of the
application.
107 Can approvals be extended or renewed?
(1) The council may determine to extend or renew an approval (but
without changing the terms of the approval) if satisfied there is good cause
for doing so.
(2) The renewal of an approval operates as if it were an approval
granted on the date of renewal.
(3) The extension or renewal may be granted before the approval lapses
or at any time within 3 months after the approval
lapses.
(4) The relevant provisions of:(a) sections 72, 73, 74, 78, 79, 80, 84, 85, 87, 88, 99 and 105,
and
(b) Division 1 of Part 5,
apply to an application made by the Crown or a person prescribed by the
regulations referred to in section 72 (1) to extend or renew an approval in
the same way as they apply to an application for an
approval.
(5) The relevant provisions of:(a) sections 78, 79, 80, 84, 85, 87, 88, 99 and 105,
and
(b) Division 1 of Part 5,
apply to an application made by any other person to extend or renew an
approval in the same way as they apply to an application for an
approval.
107A Special provision—renewal of approvals relating to
operation of sewage management systems
(1) This section applies to an approval to operate a system of sewage
management.
(2) The council may by notice in writing (in any form determined by
the council) invite any person to whom an approval to which this section
applies has been granted to apply to renew the approval.Note. For example, an invitation in writing to a person to renew an
approval could be made in the form of an account or
invoice.
(3) A person to whom such an invitation is made is taken to have made
an application under section 107 to renew the approval on the same terms as
the original approval if the person pays any required application fee (being
an approved fee under section 80).
108 Can approvals be revoked or modified?
(1) A council may revoke or modify an approval in the circumstances
set out in section 109.
(2) A modification may take the form of the imposition of an
additional condition or the variation or rescission of a condition to which
the approval is subject.
(3) Notice of a revocation of an approval or a modification of an
approval that restricts or reduces the authority conferred by the approval may
be served on any person who appears to the council to be acting under that
authority or to be entitled to act under that
authority.
(4) A revocation or modification takes effect on the date of service
of the notice of the revocation or modification or a later date specified in
the notice.
(5) At the same time as or as soon as practicable after the notice of
the revocation or modification is served, the council is required to
send:(a) a copy of the notice to each person who, in its opinion, is likely
to be disadvantaged by the revocation or modification, and
(b) a copy of the notice and the reasons for the revocation or
modification to the Building Services Corporation, if the approval is
for:• the transfer, alteration, repair or extension of water service
pipes, or
• the carrying out of sanitary plumbing work, sanitary drainage work
or stormwater drainage work.
(6) This section does not apply to an approval granted by the Land and
Environment Court.
109 In what circumstances can an approval be revoked or
modified?
An approval may be revoked or modified in any of the following
circumstances:(a) if the approval was obtained by fraud, misrepresentation or
concealment of facts,
(b) for any cause arising after the granting of the approval which,
had it arisen before the approval was granted, would have caused the council
not to have granted the approval (or not to have granted it in the same
terms),
(c) for any failure to comply with a requirement made by or under this
Act relating to the subject of the approval,
(d) for any failure to comply with a condition of the
approval.
110 Notice to be given of proposed revocation or
modification
(1) Before revoking or modifying an approval, the council must inform,
by notice:(a) each person who, in its opinion, will be disadvantaged by the
revocation or modification of the approval, and
(b) each person and authority whose concurrence was required to the
granting of the approval.
(2) The notice must include the council’s reasons for revoking
or modifying the approval.
(3) The council must give those persons and authorities the
opportunity of appearing before the council (or a person appointed by it) to
show cause why the approval should not be revoked or
modified.
111 Application of secs 108, 109 and 110 to the
Crown
(1) A council that proposes to revoke or modify an approval given to
the Crown or a person prescribed by the regulations for the purposes of
section 72 must also give notice of its proposal to the
Minister.
(2) A council must not revoke or modify such an approval except with
the written consent of the Minister.
112 Entitlement to compensation
A person aggrieved by the revocation or modification of an
approval in the circumstances set out in section 109 (b) may recover
compensation from the council for expenditure which is rendered abortive by
the revocation or modification and which was incurred pursuant to the approval
during the period between the date on which the approval commenced to operate
and the date specified in the relevant notice served under section 108
(4).
113 Record of approvals
(1) A council must keep a record of approvals granted under this Part
and of decisions on appeal from any determination made by it under this
Part.
(2) The record is to include the following:• the serial number that identifies the application for the
approval
• the date on which the application for the approval was made to the
council
• the amount of any fee payable in connection with the
application
• the date or dates on which any such fee, or any part of it, was
paid to the council
• the date from which the approval operates
• the name and address of the person to whom the approval is
granted
• the name or address of any place in relation to which the approval
is granted
• a brief description of the subject-matter of the
approval
• any conditions to which the approval is
subject
• the duration of the approval
• whether the approval has been revoked or
modified
• in the case of approvals concerning residential building work
(within the meaning of the Building
Services Corporation Act 1989), the names of licensees and
owner-builders and the numbers endorsed on contractor licences and permits of
which it is informed by owners of affected land.
(3) The council may include any other information in the
record.
(4) The council must make such amendments to the record as are
necessary as a consequence of any decision made by the Land and Environment
Court on an appeal.
(5) The information in the record is to be available for public
inspection, without charge, at the office of the council during ordinary
office hours.
Division 4 Approvals for filming
114 What is the purpose of this Division?
(1) The purpose of this Division is to establish a streamlined
procedure for obtaining any council approvals that are necessary in order to
carry out filming.
(2) In this Division:approval
means:
(a) any approval, authorisation, consent, permit, determination or
other decision that may be granted by a council (acting in any capacity) under
this or any other Act or law (including the granting of a lease, licence or
other estate in land, other than community land) prescribed by the regulations
for the purposes of this paragraph, or
(b) if no regulations are made for the purposes of paragraph (a), any
approval, authorisation, consent, permit, determination or other decision that
may be granted by a council (acting in any capacity) under this or any other
Act or law (including the granting of a lease, licence or other estate in
land, other than community land).
grant includes give,
approve, authorise, consent, determine or otherwise
decide.
115 Applications for approvals for filming
(1) A person intending to carry out a filming project may lodge with
the council a filming proposal in which the person makes an application for
one or more approvals that are necessary in order to enable the filming
project to be carried out and that may be granted by the council (acting in
any capacity) under this or any other Act or law.
(2) A filming proposal may contain applications relating to the whole
or part of a filming project.
(3) A filming proposal cannot be lodged for more than one filming
project.
116 Form of, and security deposits, bonds, fees and charges
for, filming proposal
(1) A filming proposal must be made in the approved
form.
(2) A filming proposal is to be accompanied by the fee (if any)
payable for each application made in the proposal, if at the time of lodging
the proposal the amount of that fee can be
determined.
(3) Except as provided by subsection (4), the security deposit, bond,
fee or charge (however expressed) for each application is to be determined in
accordance with the Act, statutory instrument or law under which the
application is made.
(4) If under any Act, statutory instrument or law the council has a
discretion to determine the security deposit, bond, fee or charge (however
expressed) in respect of an application, it must determine it in accordance
with the applicable filming protocol and the amount determined must not exceed
the maximum amount (if any) prescribed by the regulations for such an
application.
(5) If the person who lodged the filming proposal does not pay the fee
payable for making an application within 14 days after the day on which the
proposal is lodged, the council may refuse to consider the application until
the fee payable with respect to the application is
paid.
Note. See section 119F (2).
117 Acknowledgment of application and notification of
fees
(1) The council must within 7 days after the day on which a filming
proposal is lodged with it:(a) give written acknowledgment of its receipt to the person who
lodged the proposal, unless the council rejects the application under
subsection (2), and
(b) if a fee payable for any application made in the proposal has not
been determined or paid, advise the person what that fee
is.
(2) The council may reject an application made in a filming proposal
within 7 days after the day on which the filming proposal is lodged if the
application is not clear as to the approval sought or if it is not easily
legible.
(3) An application so rejected is taken not to have been made and any
application fee is to be refunded.
118 What matters must accompany a filming
proposal?
A filming proposal must be accompanied by:(a) such matters as are required to accompany each application made in
the proposal (whether required by or under this Act or any another Act,
statutory instrument or law), and
(b) such matters specified by the council as may be necessary to
provide sufficient information to enable the council to determine the
applications made in the proposal.
119 Filming protocol to be brought to attention of intending
applicants
A council must take such steps as are reasonably practicable to
bring the filming protocol, the existence of any relevant regulations and any
relevant local policy adopted under Part 3 to the notice of any person who
lodges or whom the council knows to be intending to lodge a filming
proposal.
119A Amendment and withdrawal of applications
(1) A person who lodges a filming proposal may amend or withdraw an
application made in the proposal in accordance with the Act, statutory
instrument or law under which the application is
made.
(2) However, the making of a minor amendment to an application does
not stop the running of a period of time specified in section 116 or
117.
119B Application for approvals under Division 3
(1) An application for an approval under Division 3 made in a filming
proposal is to be dealt with under Division 3, except as provided by this
section.
(2) In determining the application, the council must comply with the
applicable filming protocol in addition to taking into consideration the
matters specified in section 89.
(2A) In the event of an inconsistency between any criteria in a local
policy required to be taken into consideration under section 89 and the
applicable filming protocol, the applicable filming protocol
prevails.
(3) For the purposes of Division 3:(a) a council is taken to have received an application made in a
filming proposal on the day on which the approved fee for the application was
paid, and
(b) a reference to an applicant, in relation to an application, is
taken to be a reference to the person who lodged the filming proposal making
the application concerned.
(4) An application for an approval under this Part made in a filming
proposal that complies with sections 115, 116 and 118 is not subject to
section 79, 80 (1), 81 or 85.
(5) A council that complies with sections 117 and 119 is not subject
to section 77 or 84.
(6) If the council refuses an application, it must notify the
applicant of the matters specified in section 99 within 3 business days after
the refusal.
119C Application for approval other than under Division
3
(1) An application for an approval other than under Division 3 made in
a filming proposal is to be dealt with as an application made under the
relevant provision of the relevant Act, statutory instrument or law, except as
provided by this Division.
(2) In determining the application, the council must comply with the
applicable filming protocol in addition to any other requirements relating to
determination of the application
(2A) In the event of an inconsistency between any requirements relating
to determination of the application and the applicable filming protocol, the
applicable filming protocol prevails.
(3) In relation to such an application, a reference to:(a) a fee for making the application (however expressed) is taken to
be a reference to the fee paid in relation to that application accompanying
the filming proposal, and
(b) an applicant (however expressed) is taken to be a reference to the
person who lodged the filming proposal with the
council.
(4) An application referred to in subsection (1) made in a filming
proposal that complies with sections 115, 116 and 118 is taken to have
complied with any requirements (however expressed) under the relevant Act or
statutory instrument as to:(a) the form of the application, and
(b) any fee for making the application, and
(c) any matters required to accompany the
application.
(5) A council that complies with sections 116 and 117 is taken to have
complied with any requirements (however expressed) under the relevant Act or
statutory instrument as to acknowledgement of an application and determination
of a fee for making the application.
(6) An application referred to in subsection (1) is to be determined
under the relevant provisions of the relevant Act or statutory
instrument.
(7) A determination of such an application is (subject to subsection
(8)) to be notified in accordance with the relevant provisions of the relevant
Act or statutory instrument (if any).
(8) If the council refuses an application, it must:(a) inform the applicant in writing of its determination as soon as
practicable after it is made, and
(b) give the applicant reasons in writing for its determination within
3 business days after it is made, and
(c) if the relevant Act, statutory instrument or law confers a right
of review of the determination or right of appeal against the
determination—notify the applicant of that right within 3 business days
after it is made.
119CA Presumption in favour of grant of approval
(1) The council must grant an application referred to in section 119B
or 119C made to it in accordance with the Act, statutory instrument or law
under which it is made unless the council:(a) is satisfied that there are exceptional circumstances that warrant
refusal of the application, or
(b) is required by the Act under which the application is made to
refuse the application.
(2) Before refusing an application, the council must consider whether
any concerns it has could be addressed by imposing conditions on the
approval.
119D Applicable filming protocol
(1) For the purposes of this Division, the applicable
filming protocol in relation to a council is:(a) the filming protocol, issued by the Director-General under this
section, as in force from time to time, or
(b) if the council has adopted a filming protocol and it has been
approved by order in writing by the Director-General—that filming
protocol.
(2) The Director-General may, by order in writing, issue a filming
protocol that includes any of the following:(a) information about procedures for obtaining approvals for carrying
out filming,
(b) guidelines or heads of consideration to be taken into account by
councils in determining applications for approvals made in a filming
proposal,
(c) codes of conduct for the carrying out of
filming,
(d) provisions for determining fees for an application, and fees and
charges for services related to an application, made in a filming
proposal,
(e) any other matter related to filming.
(3) The Director-General must not approve a filming protocol adopted
by a council unless the Director-General is satisfied that it is comparable to
the filming protocol issued by the
Director-General.
(4) Before issuing a filming protocol, or approving a filming protocol
adopted by a council, the Director-General must consult with such persons or
bodies as he or she considers appropriate for such period as he or she
considers appropriate.
(5) Except as provided by sections 119B (2A) and 119C (2A), a filming
protocol has no effect to the extent that it is inconsistent with an express
provision of an Act or statutory instrument.
119E Advertising or notification of applications made in
filming proposal
(1) An application made in a filming proposal must comply with all the
advertising or notification requirements for that application under any
relevant Act or statutory instrument.
(2) However, two or more applications made in a filming proposal that
are required or permitted to be advertised or notified by particular means may
be advertised or notified by those means in one advertisement or notice if
that advertisement or notice satisfies all the advertising or notification
requirements for the applications concerned under the relevant Act or
statutory instrument.
119F Application of this Division
(1) The provisions of this Division prevail to the extent of any
inconsistency between the provisions of this Division and the provisions of
any other Act, statutory instrument or law.
(2) Except as provided by section 116 (3) and (4), nothing in section
116 affects the operation of section 97 or any provision of any other Act,
statutory instrument or law that allows a council to require payment of a
security deposit, bond, fee or charge (however expressed) in relation to an
application made in a filming proposal.
(3) Nothing in this Division affects any right of appeal under this or
any other Act, statutory instrument or law.
Division 5 Accreditation of components, processes and
designs
120 Application for accreditation
(1) Any person may apply to the Director-General for the accreditation
of any component, process or design relating to an activity which is subject
to the approval under this Part of a council.
(2) An application must be made in the approved form and be
accompanied by the approved fee.
(3) Before deciding whether or not to grant an accreditation, the
Director-General may require the applicant to submit such information relating
to the component, process or design (including information describing any
relevant method of installation, attachment or construction) as the
Director-General considers appropriate.
(4) The Director-General may refuse to consider an application but in
that event must refund the fee paid.
121 Determination of application
(1) The Director-General has a discretion to accredit a component,
process or design.
(2) An accreditation may be granted subject to such conditions and
qualifications, and for such period, as the Director-General thinks
fit.
(3) In determining an application for accreditation, the
Director-General may have regard to sources of information published or
otherwise made available by such persons or bodies as the Director-General
considers appropriate.
(4) In granting an accreditation, the Director-General must state the
provisions of any regulation which the accredited component, process or design
satisfies or with which the accredited component, process or design
complies.
122 Revocation of accreditation
(1) The Director-General may at any time revoke an accreditation if
the Director-General finds that:(a) the accreditation has been obtained by fraud, misrepresentation or
concealment of facts, or
(b) the standard of the component, process or design which is the
subject of the accreditation:(i) is unsatisfactory, or
(ii) differs from or fails to comply with the standard of that
component, process or design as at the time the accreditation was granted,
or
(c) an accreditation granted in any place outside New South Wales in
respect of the component, process or design has been revoked or
cancelled.
(2) If the Director-General determines to revoke an accreditation, the
Director-General must notify the applicant for accreditation of the
Director-General’s determination.
123 Councils to be informed of accreditation and
revocation
The Director-General must notify each council of an accreditation
under this Division and of the revocation of any such accreditation as soon as
practicable after the accreditation is granted or the accreditation is
revoked.
123A Application for extension or renewal of
accreditation
(1) A person who has been granted an accreditation under the Local Government Act 1919 or under
this Division (section 123B (b) excepted) may apply to the Director-General
for an extension or renewal of the accreditation.
(2) This Division applies:(a) to an application under this section in the same way as it applies
to an application for accreditation, and
(b) to the extension or renewal of an accreditation in the same way as
it applies to an accreditation.
123B Acceptance of accreditation by others
The regulations:(a) may provide for the submission with an application under this
Division of an accreditation granted, or an assessment or appraisal made or
given by a person or body other than the Director-General,
and
(b) may provide that an accreditation granted by a person or body
other than the Director-General is to be taken to be an accreditation granted
and notified under, and subject to the revocation provisions of, this
Division.
The main
procedures concerning approvals
Part 2 Orders
Division 1 Giving of orders
124 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:
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
