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,
(i) alleged contraventions of any code of conduct requirements
applicable under section 440.
(3) A council, or a committee of the council of which all the members
are councillors, may also close to the public so much of its meeting as
comprises a motion to close another part of the meeting to the
public.
(4) A council, or a committee of a council, may allow members of the
public to make representations to or at a meeting, before any part of the
meeting is closed to the public, as to whether that part of the meeting should
be closed.
(5), (6) (Repealed)
10B Further limitations relating to closure of parts of
meetings to public
(1) A meeting is not to remain closed during the discussion of
anything referred to in section 10A (2):(a) except for so much of the discussion as is necessary to preserve
the relevant confidentiality, privilege or security, and
(b) if the matter concerned is a matter other than a personnel matter
concerning particular individuals, the personal hardship of a resident or
ratepayer or a trade secret—unless the council or committee concerned is
satisfied that discussion of the matter in an open meeting would, on balance,
be contrary to the public interest.
(2) A meeting is not to be closed during the receipt and consideration
of information or advice referred to in section 10A (2) (g) unless the advice
concerns legal matters that:(a) are substantial issues relating to a matter in which the council
or committee is involved, and
(b) are clearly identified in the advice, and
(c) are fully discussed in that advice.
(3) If a meeting is closed during the discussion of a motion to close
another part of the meeting to the public (as referred to in section 10A (3)),
the consideration of the motion must not include any consideration of the
matter or information to be discussed in that other part of the meeting (other
than consideration of whether the matter concerned is a matter referred to in
section 10A (2)).
(4) For the purpose of determining whether the discussion of a matter
in an open meeting would be contrary to the public interest, it is irrelevant
that:(a) a person may misinterpret or misunderstand the discussion,
or
(b) the discussion of the matter may:(i) cause embarrassment to the council or committee concerned, or to
councillors or to employees of the council, or
(ii) cause a loss of confidence in the council or
committee.
(5) In deciding whether part of a meeting is to be closed to the
public, the council or committee concerned must have regard to any relevant
guidelines issued by the Director-General.
10C Notice of likelihood of closure not required in urgent
cases
Part of a meeting of a council, or of a committee of the council
of which all the members are councillors, may be closed to the public while
the council or committee considers a matter that has not been identified in
the agenda for the meeting as a matter that is likely to be considered when
the meeting is closed, but only if:(a) it becomes apparent during the discussion of a particular matter
that the matter is a matter referred to in section 10A (2),
and
(b) the council or committee, after considering any representations
made under section 10A (4), resolves that further discussion of the
matter:(i) should not be deferred (because of the urgency of the matter),
and
(ii) should take place in a part of the meeting that is closed to the
public.
10D Grounds for closing part of meeting to be
specified
(1) The grounds on which part of a meeting is closed must be stated in
the decision to close that part of the meeting and must be recorded in the
minutes of the meeting.
(2) The grounds must specify the following:(a) the relevant provision of section 10A (2),
(b) the matter that is to be discussed during the closed part of the
meeting,
(c) the reasons why the part of the meeting is being closed, including
(if the matter concerned is a matter other than a personnel matter concerning
particular individuals, the personal hardship of a resident or ratepayer or a
trade secret) an explanation of the way in which discussion of the matter in
an open meeting would be, on balance, contrary to the public
interest.
10E (Repealed)
11 Public access to correspondence and reports
(1) A council and a committee of which all the members are councillors
must, during or at the close of a meeting, or during the business day
following the meeting, give reasonable access to any person to inspect
correspondence and reports laid on the table at, or submitted to, the
meeting.
(2) This section does not apply if the correspondence or
reports:(a) relate to a matter that was received or discussed,
or
(b) were laid on the table at, or submitted to, the
meeting,
when the meeting was closed to the public.
(3) This section does not apply if the council or committee resolves
at the meeting, when open to the public, that the correspondence or reports,
because they relate to a matter specified in section 10A (2), are to be
treated as confidential.
Part 2
12–13(Repealed)
Part 3 Expressions of community opinion
Division 1 Council polls
14 Council polls
A council may take a poll of electors for its information and
guidance on any matter.
Division 2 Constitutional referendums
15 What is a constitutional referendum?
A constitutional referendum is a poll initiated by a council in
order to give effect to a matter referred to in section
16.
16 What matters must be dealt with at a constitutional
referendum?
A council may not do any of the following unless approval to do so
has been given at a constitutional referendum:(a) divide its area into wards or abolish all wards in its
area,
(b) change the basis on which the mayor attains office (that is, by
election by the councillors or by election by the
electors),
(c) increase or decrease the number of councillors in accordance with
the limits under section 224,
(d) change the method of ordinary election of councillors for an area
divided into wards.
(e) (Repealed)
17 What is the effect of a constitutional
referendum?
(1) The decision made at a constitutional referendum binds the council
until changed by a subsequent constitutional
referendum.
(2) However, such a decision does not apply to a by-election held
after the constitutional referendum and before the next ordinary
election.
Division 3 General provisions concerning a council poll or
constitutional referendum
18 What provisions apply to the conduct of a council poll or
constitutional referendum?
Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How
are people elected to civic office?) apply to a council poll, and Part 1 and
Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional
referendum, with such modifications as may be necessary, in the same way as
they apply to an election.Note. Part 1 of Chapter 10 identifies the people who are entitled to
vote in council elections, and Part 6 governs the conduct of those
elections.Division 3 of Part 6 of that Chapter deals with nominations for
election, Division 4 with failure to vote and Division 5 with miscellaneous
matters such as irregularities of form or procedure in elections, overdue
elections and those declared void.
19 Day for taking council poll or constitutional
referendum
A council poll or constitutional referendum may be taken on any
Saturday, including the Saturday of an ordinary
election.
20 When is a question at a council poll or constitutional
referendum carried?
(1) The question at a council poll or constitutional referendum is
carried if it is supported by a majority of the votes
cast.
(2) The reference to votes in subsection (1) does not include a
reference to any vote that, pursuant to the regulations, is found to be
informal.
Expressions of community
opinion
Types of
expression |
Council
Poll | Constitutional
Referendum |
Question to be
determined |
Any question | • Creation or abolition of all wards
• Change in the way in which the mayor is chosen
• Change in number of councillors
• Change in the way councillors are elected for an area divided into
wards
|
Result of
Poll |
If Yes | If No | If Yes | If No |
Council chooses whether or not to
proceed | Change must proceed | Change cannot proceed until passed by a later
constitutional referendum |
Chapter 5 What are a council’s functions?
Introduction. This Chapter specifies a council’s functions. In doing so,
it recognises that all functions of a council come from statute, either from
this Act or another Act.
21 Functions under this Act
A council has the functions conferred or imposed on it by or under
this Act.Note. This Act classifies certain of a council’s functions as
service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or
ancillary (Chapter 8). Ancillary functions are those functions that assist the
carrying out of a council’s service and regulatory
functions.A council also has revenue functions (Chapter 15), administrative
functions (Chapters 11, 12 and 13) and functions relating to the enforcement
of this Act (Chapters 16 and 17).
22 Other functions
A council has the functions conferred or imposed on it by or under
any other Act or law.Note. While the main functions of councils are provided for under this
Act, councils also have functions under other Acts. An important general
provision is contained in section 50 of the Interpretation Act 1987 which
provides, in part:(1) A statutory corporation:(a) has perpetual succession,
(b) shall have a seal,
(c) may take proceedings and be proceeded against in its corporate
name,
(d) may, for the purpose of enabling it to exercise its functions,
purchase, exchange, take on lease, hold, dispose of and otherwise deal with
property, and
(e) may do and suffer all other things that bodies corporate may, by
law, do and suffer and that are necessary for, or incidental to, the exercise
of its functions …
(4) This section applies to a statutory corporation in addition to,
and without limiting the effect of, any provision of the Act by or under which
the corporation is constituted.
Some other Acts and some of the functions they confer
include:
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 30 years.
(4) The following purposes are prescribed for the purposes of
subsection (1) (b) (i):(a) the provision of goods, services and facilities, and the carrying
out of activities, appropriate to the current and future needs within the
local community and of the wider public in relation to any of the
following:(i) public recreation,
(ii) the physical, cultural, social and intellectual welfare or
development of persons,
(b) the provision of public roads.
(5) Purposes prescribed by subsection (4) in relation to the matters
mentioned in subsection (4) (a) (ii) include, but are not limited to,
maternity welfare centres, infant welfare centres, kindergartens, nurseries,
child care centres, family day-care centres, surf life saving clubs,
restaurants or refreshment kiosks.
(5A) A council must grant an application under subsection (1) (c) for a
lease, licence or other estate in respect of community land in order to allow
a filming project to be carried out on the land unless:(a) the community land is land referred to in section 47AA (1),
or
(b) the plan of management for the land expressly prohibits use of the
land for the purposes of filming projects, or
(c) the council is satisfied that there are exceptional circumstances
that warrant refusal of the application.
(5B) Before refusing an application on a ground referred to in
subsection (5A) (c), the council must consider whether any concerns it has
could be addressed by imposing conditions on the
grant.
(5C) If the council refuses an application, it must:(a) inform the applicant in writing of its decision as soon as
practicable after it is made, and
(b) give the applicant reasons in writing for its decision within 3
business days after it is made.
(6) A plan of management is void to the extent that it purports to
authorise the grant of a lease, licence or other estate in contravention of
this section.
46A Means of granting leases, licences and other
estates
(1) A plan of management is to specify, in relation to the community
land to which it applies, any purposes for which a lease, licence or other
estate may be granted only by tender in accordance with Division 1 of Part
3.
(2) Nothing in this section precludes a council from applying a tender
process in respect of the grant of any particular lease, licence or
estate.
(3) A lease or licence for a term exceeding 5 years may be granted
only by tender in accordance with Division 1 of Part 3, unless it is granted
to a non-profit organisation.
47 Leases, licences and other estates in respect of community
land—terms greater than 5 years
(1) If a council proposes to grant a lease, licence or other estate in
respect of community land for a period (including any period for which the
lease, licence or other estate could be renewed by the exercise of an option)
exceeding 5 years, it must:(a) give public notice of the proposal, and
(b) exhibit notice of the proposal on the land to which the proposal
relates, and
(c) give notice of the proposal to such persons as appear to it to own
or occupy the land adjoining the community land, and
(d) give notice of the proposal to any other person, appearing to the
council to be the owner or occupier of land in the vicinity of the community
land, if in the opinion of the council the land the subject of the proposal is
likely to form the primary focus of the person’s enjoyment of community
land.
(2) A notice of the proposal must include:• information sufficient to identify the community land
concerned
• the purpose for which the land will be used under the proposed
lease, licence or other estate
• the term of the proposed lease, licence or other estate (including
particulars of any options for renewal)
• the name of the person to whom it is proposed to grant the lease,
licence or other estate (if known)
• a statement that submissions in writing may be made to the council
concerning the proposal within a period, not less than 28 days, specified in
the notice.
(3) Any person may make a submission in writing to the council during
the period specified for the purpose in the notice.
(4) Before granting the lease, licence or other estate, the council
must consider all submissions duly made to it.
(5) The council must not grant the lease, licence or other estate
except with the Minister’s consent, if:(a) a person makes a submission by way of objection to the proposal,
or
(b) in the case of a lease or licence, the period (including any
period for which the lease or licence could be renewed by the exercise of an
option) of the lease or licence exceeds 21 years.
(6) If the council applies for the Minister’s consent, it must
forward with its application:• a copy of the plan of management for the land
• details of all objections received and a statement setting out,
for each objection, the council’s decision and the reasons for its
decision
• a statement setting out all the facts concerning the proposal to
grant the lease, licence or other estate
• a copy of the newspaper notice of the proposal
• a statement setting out the terms, conditions, restrictions and
covenants proposed to be included in the lease, licence or other
estate
• if the application relates to a lease or licence for a period
(including any period for which the lease or licence could be renewed by the
exercise of an option) exceeding 21 years, a statement outlining the special
circumstances that justify the period of the lease or licence exceeding 21
years
• a statement setting out the manner in which and the extent to
which the public interest would, in the council’s opinion, be affected
by the granting of the proposed lease, licence or other estate, including the
manner in which and the extent to which the needs of the area with respect to
community land would, in the council’s opinion, be adversely affected by
the granting of the proposed lease, licence or other
estate.
(7) On receipt of the application, the Minister must request the
Director of Planning to furnish a report concerning the application within
such period as the Minister specifies.
(8) After considering the application and any report of the Director
of Planning, the Minister, if satisfied that:(a) subsections (1), (2) and (6) have been complied with,
and
(b) such consent would not contravene section 46,
and
(c) in all the circumstances, it is desirable to grant
consent,
may consent to the granting of a lease, licence or other estate in
respect of the whole or part of the land to which the application relates,
subject to such terms and conditions as the Minister
specifies.
(8AA) The Minister may consent to a lease or licence referred to in
subsection (5) (b) only if the Minister is satisfied that there are special
circumstances that justify the period of the lease or licence exceeding 21
years.
(8A) On request by any person, the Minister must provide that person,
within 14 days of that request, with a written statement of reasons for
consenting to, or refusing to consent to, the granting of a lease, licence or
other estate in accordance with subsection (8).
(9) The Minister’s consent is conclusive evidence that the
council has complied with subsections (1), (2) and
(6).
(10) For the purposes of this section, any provision made by a lease or
licence, or by an instrument granting any other estate, in respect of
community land, according to which the council:(a) would suffer a disadvantage or penalty if the same or a similar
lease, licence or estate were not to be granted, for a further term, after the
expiry of the current lease, licence or other estate, or
(b) would enjoy an advantage or benefit if the same or a similar
lease, licence or estate were to be so granted,
is taken to confer an option for renewal for a term equal to the further
term.
47A Leases, licences and other estates in respect of
community land—terms of 5 years or less
(1) This section applies to a lease, licence or other estate in
respect of community land granted for a period that (including any period for
which the lease, licence or other estate could be renewed by the exercise of
an option) does not exceed 5 years, other than a lease, licence or other
estate exempted by the regulations.
(2) If a council proposes to grant a lease, licence or other estate to
which this section applies:(a) the proposal must be notified and exhibited in the manner
prescribed by section 47, and
(b) the provisions of section 47 (3) and (4) apply to the proposal,
and
(c) on receipt by the council of a written request from the Minister,
the proposal is to be referred to the Minister, who is to determine whether or
not the provisions of section 47 (5)–(9) are to apply to the
proposal.
(3) If the Minister, under subsection (2) (c), determines that the
provisions of section 47 (5)–(9) are to apply to the proposal:(a) the council, the Minister and the Director of Planning are to deal
with the proposal in accordance with the provisions of section 47
(1)–(8), and
(b) section 47 (9) has effect with respect to the Minister’s
consent.
47AA Special provisions for leases, licences and other
estates granted for filming projects
(1) A council that proposes to grant a lease, licence or other estate
in respect of community land under section 47A in order to allow a filming
project to be carried out on community land:(a) that is critical habitat (as defined in section 36A (1)),
or
(b) that is directly affected by a recovery plan or threat abatement
plan, as referred to in section 36B (2), or
(c) that is declared to be an area of cultural significance under
section 36D (1) because of the presence on the land of any item that the
council considers to be of Aboriginal significance,
must, in addition to complying with section 47A, notify or advertise the
proposal in the manner prescribed by the regulations for the purposes of this
section.
(2) Despite section 47A (2), a council that is of the opinion that a
filming project proposed to be carried out under a lease, licence or other
estate granted under section 47A will have a minor impact on the environment
and on public amenity may state in the notice of the proposal required by
section 47A (2) that submissions in writing may be made to the council
concerning the proposal within a period, not less than 7 days, specified in
the notice.
(3) Regulations may be made for or with respect to guidelines that
must be taken into consideration by councils in determining whether to grant a
lease, licence or other estate in respect of community land in order to allow
a filming project to be carried out on the land.
47B Lease or licence in respect of natural area
(1) A lease, licence or other estate must not be granted, in respect
of community land categorised as a natural area:(a) to authorise the erection or use of a building or structure that
is not a building or structure of a kind prescribed by this section or the
regulations, or
(b) to authorise the erection or use of a building or structure that
is not for a purpose prescribed by this section or the
regulations.
(2) A lease, licence or instrument granting any other estate is void
to the extent that its provisions are inconsistent with this
section.
(3) In this section, erection of a
building or structure includes rebuilding or replacement of a building or
structure.
(4) The following buildings and structures are prescribed for the
purposes of subsection (1) (a):(a) walkways,
(b) pathways,
(c) bridges,
(d) causeways,
(e) observation platforms,
(f) signs.
(5) The following purposes are prescribed for the purposes of
subsection (1) (b):(a) information kiosks,
(b) refreshment kiosks (but not restaurants),
(c) work sheds or storage sheds required in connection with the
maintenance of the land,
(d) toilets or rest rooms.
(6) Despite subsection (1), a lease, licence or other estate may be
granted, in respect of community land categorised as a natural area, to
authorise the erection or use of any building or structure necessary to enable
a filming project to be carried out, subject to the conditions prescribed by
subsection (7) and the regulations.
(7) It is a condition of any lease, licence or other estate referred
to in subsection (6):(a) that any building or structure so erected must be temporary in
nature, and
(b) that as soon as practicable after the termination of the lease,
licence or other estate:(i) any building or structure erected must be removed,
and
(ii) any damage to the land caused by the erection or use of a building
or structure must be made good, and
(iii) the land must be restored as nearly as possible to the condition
that it was in at the time the lease, licence or other estate was
granted,
at the expense of the person to whom the lease, licence or other estate
was granted.
47C Sublease of community land
(1) In addition to any restrictions created by the lease, community
land that is the subject of a lease cannot be sublet for a purpose other
than:(a) the purpose for which, as notified under section 47 (2), the land
was to be used under the lease, or
(b) a purpose prescribed by the
regulations.
(2) A lease is void to the extent that its provisions are inconsistent
with this section.
47D Occupation of community land otherwise than by lease or
licence
(1) The exclusive occupation or exclusive use by any person of
community land otherwise than in accordance with:(a) a lease, licence or estate to which section 47 or 47A applies,
or
(b) a sublease or other title directly or indirectly derived from the
holder of such a lease, licence or estate,
is prohibited.
(2) This section does not apply to:(a) the occupation or use of part of the site of a senior
citizens’ centre or home or community care facility by a duly appointed
manager of the centre, or
(b) the occupation or use of community land by persons, and in
circumstances, prescribed by the regulations.
47E Development of community land
(1) No power of a council under an environmental planning instrument
to consent to the carrying out of development on community land may be
delegated by the council, if:(a) the development involves the erection, rebuilding or replacement
of a building (other than a building exempted by or under subsection (2) from
the operation of this paragraph), or
(b) the development involves extensions to an existing building that
would occupy more than 10 per cent of its existing area,
or
(c) the development involves intensification, by more than 10 per
cent, of the use of the land or any building on the land,
or
(d) the location of the development has not been specified in the plan
of management applying to the land and the development is likely, in the
opinion of the council, to be unduly intrusive to nearby
residents.
(2) The following buildings are exempt from the operation of
subsection (1) (a):(a) toilet facilities,
(b) small refreshment kiosks,
(c) shelters for persons from the sun and weather,
(d) picnic facilities,
(e) structures (other than accommodations for spectators) required for
the playing of games or sports,
(f) playground structures,
(g) work sheds or storage sheds,
(h) buildings of a kind prescribed by the
regulations.
(3) An existing area
referred to in subsection (1) (b) does not include the area of any awning,
balcony, verandah or other thing that extends beyond the main structural
outline of the building.
(4) A delegation granted before the commencement of this section, to
the extent that the delegation could not have been granted if this section had
been in force at the time it was granted, is void.
47F Dedication of community land as public road
(1) Community land may not be dedicated as a public road under section
10 of the Roads Act 1993
unless:(a) the road is necessary to facilitate enjoyment of the area of
community land on which the road is to be constructed or of any facility on
that land, and
(b) the council has considered means of access other than public road
access to facilitate that enjoyment, and
(c) there is a plan of management applying only to the land concerned
and provision of the public road is expressly authorised in the plan of
management.
(2) Subsection (1) does not apply to:(a) a dedication of land for the purpose of widening an existing
public road, or
(b) a dedication of land for the purpose of other roadworks of a minor
character, authorised by the plan of management applying to the land, in
respect of existing roads, or
(c) a dedication of land for the purpose of a road that is the subject
of an order under Division 1 of Part 5 of the Roads Act
1993.
Division 3 Miscellaneous
47G Public hearings
(1) In this section, public hearing
means any public hearing required to be arranged under this
Part.
(2) The person presiding at a public hearing must not be:(a) a councillor or employee of the council holding the public
hearing, or
(b) a person who has been a councillor or employee of that council at
any time during the 5 years before the date of his or her
appointment.
(3) Not later than 4 days after it has received a report from the
person presiding at the public hearing as to the result of the hearing, the
council must make a copy of the report available for inspection by the public
at a location within the area of the council.
48 Responsibility for certain public reserves
(1) Except as provided by section 98A of the Crown Lands Act 1989, a council has
the control of:(a) public reserves that are not under the control of or vested in any
other body or persons and are not held by a person under lease from the Crown,
and
(b) public reserves that the Governor, by proclamation, places under
the control of the council.
(2) If any doubt arises as to whether any land comes within the
operation of this section, or as to the boundaries of a public reserve, the
Governor may, by proclamation, determine the
matter.
49 Public reserves and drainage reserves dedicated on
subdivision, transfer or conveyance
(1) On the registration by the Registrar-General of a plan on which
land is marked with the words “public reserve”, or of a transfer
or conveyance to a council of land identified in the transfer or conveyance as
being for use as a public reserve, the land is dedicated as a public reserve
and vests in the council for an estate in fee
simple.
(2) If the land so dedicated is under the Real Property Act 1900, the
Registrar-General, on registration of the plan or transfer, must create a
folio of the Register under that Act for the estate of the council in the land
and record in the folio, by reference to this section or otherwise, that the
land is dedicated as a public reserve.
(3) On the registration by the Registrar-General of a plan on which
land is marked with the words “drainage reserve”, or of a transfer
or conveyance to a council of land identified in the transfer or conveyance as
being for use as a drainage reserve, the land vests in the council for an
estate in fee simple and is held by the council for drainage
purposes.
(4) This section does not apply to a subdivision of land the plan of
which was approved by the council before 15 June
1964.
50 Public garden and recreation space and drainage reserves
provided for in subdivisions approved before 15.6.1964
(1) This section applies to a subdivision of land the plan of which
was approved by the council:• in the case of public garden and recreation space—before 15
June 1964
• in the case of drainage reserves—after 24 November 1922 and
before 15 June 1964.
Note. 15 June 1964 is the date of commencement of the
Local Government and Conveyancing (Amendment) Act
1964. 24 November 1922 is the date of commencement of the
Local Government (Validation and Amendment) Act
1922.
(2) If a subdivision made provision for public garden and recreation
space, the council may direct:(a) that the space be conveyed or transferred to the council,
or
(b) because the space is adjacent to land reserved or dedicated for
the purpose of public recreation under the Crown Lands Act 1989 or to a public
park that is not vested in the council, that the space be surrendered to the
Crown.
Public garden and recreation space surrendered to the Crown is
taken to be Crown land.
(3) If a subdivision made provision for a drainage reserve, the
council may direct that the reserve be conveyed or transferred to the
council.
(4) Instead of directing that land be conveyed or transferred to it,
the council may publish a notice in the Gazette notifying that the land is
vested in it.
(5) On publication of the notice, the land vests in the council for an
estate in fee simple and is taken:• in the case of public garden and recreation space—to be
dedicated as a public reserve
• in the case of drainage reserves—to be held by the council
for drainage purposes.
(6) When creating a folio of the Register under the Real Property Act 1900 for public
garden and recreation space vested in the council under this section, the
Registrar-General must record in the folio, by reference to this section or
otherwise, that the land is dedicated as a public
reserve.
51 Use of land held for drainage purposes
Land that is held by council for drainage purposes may be used for
any other purpose that is not inconsistent with its use for drainage purposes,
subject to the Environmental Planning and
Assessment Act 1979 and any environmental planning instrument
applying to the land.
52 Effect of sec 28 of the Environmental Planning and Assessment Act
1979
This Part is not a regulatory instrument for the purposes of
section 28 of the Environmental Planning
and Assessment Act 1979.Note. Section 28 of the Environmental
Planning and Assessment Act 1979 empowers an environmental
planning instrument to provide that, to the extent necessary to enable
development to be carried out in accordance with such an instrument or with a
consent granted under that Act, a regulatory instrument (an Act, rule,
regulation, by-law, ordinance, proclamation, agreement, covenant or instrument
by or under whatever authority made) is not to apply to the development.
Section 52 prevents section 28 of that Act from removing any of the controls
imposed by this Part.
53 The council’s land register
(1) A council is required to keep a register of all land vested in it
or under its control.
(2) The register must include the following:• the name (if any) by which the land is known
• the address or location of the land
• the reference to title of the land
• the name of the owner of the land
• whether or not the land is Crown land
• the classification under this Part of the land
• whether or not there is a plan of management for the
land
• the zoning (if any) of the land under an environmental planning
instrument
• particulars of any agreement (including any lease or licence)
entered into by the council with respect to the
land.
54 Certificate as to classification of land
(1) A person may apply to the council for a certificate as to the
classification of any public land.
(2) The application must be in the approved form and be accompanied by
the approved fee.
(3) The council is to issue a certificate to the applicant stating the
classification of the public land as at the date of the
certificate.
(4) The production of the certificate is taken for all purposes to be
conclusive proof of the matter certified.
54A Community land to be described in common terms
Any public notice given by a council with respect to a parcel of
community land must describe the land by reference to its common description
(such as its address, or the name by which it is generally known) whether or
not the notice also describes the land by reference to a more formal legal
description.
54B Transfer of private trust land under Trustees of Schools of Arts Enabling Act
1902
(1) In this section:assets means any legal
or equitable estate or interest (whether present or future and whether vested
or contingent) in real or personal property of any description (including
money), and includes securities, choses in action and
documents.
institution has
the same meaning as in the Trustees of
Schools of Arts Enabling Act 1902.
liabilities means
any liabilities, debts or obligations (whether present or future and whether
vested or contingent).
private trust
land means any land reserved, dedicated or granted under any Act or
instrument, or otherwise held, for the purposes of an institution, but does
not include any such land if it is Crown land (or land otherwise vested in the
Crown) or was Crown land (or land otherwise vested in the Crown) before being
reserved, dedicated, granted or held for the purposes of an
institution.
rights means any
rights, powers, privileges or immunities (whether present or future and
whether vested or contingent).
trustees of private
trust land means the majority of the trustees for the time being of that
land.
(2) A council and the trustees of private trust land may enter into an
agreement for the land to be transferred to the
council.
(3) Any such agreement may contain provisions relating to the purposes
for which the land is to be used after it is
transferred.
(4) The trustees may enter into any such agreement to transfer private
trust land, and the agreement has effect, despite the terms and provisions of
any Act, deed, reservation, dedication, grant or other instrument relating to
the land.
(5) Land that is transferred to a council under such an agreement
is:(a) freed and discharged from any trusts, estates, interests,
reservations dedications, conditions, restrictions and provisions affecting
the land, and
(b) to be used and managed by the council as community
land.
(6) Subsection (5) (a) is subject to any agreement entered into by the
council under this section for the transfer of the
land.
(7) In preparing a draft plan of management in relation to any land
transferred to it under this section, the council must, in addition to the
other requirements under Division 2:(a) advise the Minister that it is preparing the draft plan,
and
(b) take into account the purposes for which the land was reserved,
dedicated, granted or held as an institution, and
(c) comply as far as practicable with the agreement entered into
between the trustees of the private trust land concerned and the council,
and
(d) before giving public notice of the draft plan in accordance with
section 38, consult with such persons or bodies as the council considers
appropriate or as the Minister directs.
(8) On the transfer of any private trust land to a council under this
section, the following provisions have effect:(a) any assets, rights or liabilities in relation to the land, or in
relation to the trustees of the land in their capacity as trustees, become the
assets, rights or liabilities of the council,
(b) all proceedings relating to those assets, rights and liabilities
that were commenced by or against the trustees before the transfer are taken
to be proceedings pending by or against the council,
(c) any act, matter or thing done or omitted to be done in relation to
those assets, rights and liabilities by, to or in respect of the trustees
before the transfer is (to the extent to which that act, matter or thing has
any force or effect) taken to have been done or omitted to be done by, to or
in respect of the council.
How do councils manage public
land?
Land owned or
controlled by councils consists of |
• Public roads
• Land to which the Crown Lands Act
1989 applies
• Commons
• Land subject to the Trustees of
Schools of Arts Enabling Act 1902
| • All other land(It is this other land that this Act defines to be public
land.)
|
What regulates this
land? | This land may be
classified by a local environmental plan or council resolution
as |
• PUBLIC ROADS—Roads Act
1993
• CROWN LANDS—Crown Lands Act
1989
• COMMONS—Commons Management
Act 1989
• MECHANICS’ INSTITUTES AND SCHOOLS OF ARTS—Trustees of Schools of Arts Enabling Act
1902
| Community | Operational |
MANAGEMENT PLAN
REQUIRED? |
YES | NO |
IS USE
RESTRICTED? |
• Use must not change until management plan
adopted
• Use and management must be in accordance with:— plan of management adopted by council
— provisions of any relevant law
| NO |
IS DISPOSAL
RESTRICTED? |
• Sale prohibited
• No lease or licence over 21 years
• Leases or licences over 5 years only with Minister’s consent
if anyone objects to the lease or licence
| NO |
RECLASSIFICATION? |
By local environmental plan or, in
some circumstances, by council resolution | By council
resolution |
Part 2A Environmental upgrade agreements
54C Definitions
In this Part:environmental
upgrade agreement—see section 54D.
environmental upgrade
charge—see section 54G.
environmental upgrade
works—see section 54E.
owners
corporation for a strata scheme means the owners corporation for the
strata scheme constituted under the Strata
Schemes Management Act 1996.
strata
building means a building containing a lot or part of a lot that is
the subject of a strata scheme.
strata
scheme means a strata scheme under the Strata Schemes (Freehold Development) Act
1973 or a leasehold strata scheme under the Strata Schemes (Leasehold Development) Act
1986.
54D Environmental upgrade agreement
(1) A council may enter into an environmental upgrade agreement with a
building owner and a finance provider in relation to a
building.
(2) An environmental
upgrade agreement is an agreement under which:(a) a building owner agrees to carry out environmental upgrade works
in respect of a building, and
(b) a finance provider agrees to advance funds to the building owner
to finance those environmental upgrade works, and
(c) the council agrees to levy a charge on the relevant land for the
purpose of repaying the advance to the finance
provider.
(3) A building owner is a person who is the owner of the land on which
the building is erected.
(4) For a building erected on land that is the subject of a strata
scheme, the owners corporation for the strata scheme is taken to be the
building owner.
(5) The function of entering into an environmental upgrade agreement
can be delegated by a council only to the general manager of the council. The
delegation must specify the building or buildings to which the delegation
relates.
(6) Other persons may also be party to an environmental upgrade
agreement.
54E What are environmental upgrade works?
(1) For the purposes of this Part, environmental
upgrade works are works to improve the energy, water or
environmental efficiency or sustainability of the building to which the
agreement relates.
(2) Environmental upgrade works include any works declared by the
regulations to be environmental upgrade works.
(3) Environmental upgrade works do not include any works declared by
the regulations to be excluded works.
(4) More than one environmental upgrade agreement may be entered into
in relation to the same environmental upgrade
works.
54F Buildings that can be subject of environmental upgrade
agreement
(1) An environmental upgrade agreement must relate to an existing
building (that is, a building that is complete and ready for lawful use and
occupation at the time the agreement is entered
into).
(2) The building must be a non-residential building or a strata
building that is the subject of a multi-residence
scheme.
(3) A non-residential building is a building used wholly or
predominantly for commercial, industrial or other non-residential
purposes.
(4) A multi-residence scheme is a strata scheme comprising more than
20 lots (disregarding utility lots and lots used for
parking).
(5) The building must be located in the council’s area at the
time that the agreement is entered into.
54G Contents of environmental upgrade agreement
(1) An environmental upgrade agreement must specify the
following:(a) the environmental upgrade works to be carried out by or on behalf
of the building owner under the agreement,
(b) the amount of the advance or advances to be made by the finance
provider under the agreement,
(c) the arrangements for repayment of the advance or advances (the
agreed
repayment arrangements).
(2) The agreed repayment arrangements may require the council to levy
a charge (an environmental
upgrade charge) for the purpose of discharging the building
owner’s obligation to repay the advance or advances made by the finance
provider under the agreement (including any interest or other charges payable
under the agreement).
(3) The agreed repayment arrangements must specify:(a) the amount of the environmental upgrade charge or charges to be
levied by the council under the agreement (or a method for calculating the
amount of the charge or charges), and
(b) the date or dates on which the charge or charges are to be levied
by the council, and
(c) any adjustments to be made to the charge or charges in the event
of late payment.
(4) Money paid to a council in respect of an environmental upgrade
charge is to be paid by the council to the finance provider in accordance with
the environmental upgrade agreement.
(5) An environmental upgrade agreement may permit the early repayment
of any amount payable under the agreement.
(6) An environmental upgrade agreement must be in
writing.
(7) An environmental upgrade agreement may include any other
provisions agreed to by the parties.
(8) An environmental upgrade agreement may be varied or terminated by
further agreement between the council, the finance provider and the building
owner for the time being.
54H Council fees under agreement
(1) An environmental upgrade agreement may authorise a council to
deduct from any money paid in respect of an environmental upgrade charge, and
retain, as a council fee:(a) a service fee, being a fee to cover any costs incurred by the
council in entering into, or administering, the agreement,
and
(b) a late payment fee, being the amount, or a part of the amount,
charged under the agreement for late payment of an environmental upgrade
charge.
(2) The environmental upgrade agreement must specify the amount of, or
a method for calculating, any such council fee.
(3) Part 10 of Chapter 15 does not apply in respect of a council fee
charged under an environmental upgrade agreement.
(4) However, section 610D applies to the service fee component of the
council fee.
54I Power to levy environmental upgrade charge
(1) A council may levy an environmental upgrade charge in accordance
with an environmental upgrade agreement.
(2) An environmental upgrade charge may be levied only on the land on
which the building to which the environmental upgrade agreement relates is
erected or, in the case of a strata building, the land that is the subject of
the relevant strata scheme.
54J Application of other charge provisions to environmental
upgrade charge
(1) The relevant provisions apply in respect of an environmental
upgrade charge in the same way as they apply in respect of a charge levied
under Chapter 15.
(2) The relevant
provisions are the following provisions:(a) Chapter 15—sections 543, 544, 545, 546 (1), (3), (4) and
(5), 550, 561, 569, 571, 573, 602 and 603,
(b) Chapter 17—sections 695, 696 and 712 and Division 5 of Part
2.
(3) The relevant provisions apply with the following
modifications:(a) in section 545, a reference to a provision of Part 4 of Chapter 15
is taken to include a reference to a provision of this
Part,
(b) in section 550, a reference to a rate or charge levied under this
Act is taken to include a reference to any amount charged under an
environmental upgrade agreement for late payment of an environmental upgrade
charge.
(4) The regulations may further apply, disapply or modify the
operation of any provision of this Act that relates to charges levied by a
council in respect of an environmental upgrade
charge.
54K Special provisions relating to strata
buildings
(1) An environmental upgrade charge that is levied in respect of land
that is the subject of a strata scheme is payable by the owners corporation
for that strata scheme.
(2) This section has effect despite section 561, as applied by this
Part.
(3) An owners corporation may determine whether environmental upgrade
charges are to be paid from its sinking fund or its administrative
fund.
(4) An owners corporation for a strata scheme must, on the request of
an owner of a lot that forms part of the strata scheme, provide to the owner a
copy of any environmental upgrade agreement that relates to premises the
subject of the strata scheme.
(5) The regulations may disapply or modify the operation of any
provision of the Strata Schemes Management
Act 1996 in relation to environmental upgrade
charges.
54L Payment of environmental upgrade charge
(1) An environmental upgrade charge is to be paid within 28 days after
notice of the charge is served on the person liable to pay
it.
(2) When an environmental upgrade charge is paid to a council, the
council may deduct from the payment, and retain, any amount that the council
is authorised to deduct and retain as a council fee under the
agreement.
(3) Money paid to a council in respect of an environmental upgrade
charge, other than any council fee retained by the council, 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 NSW Procurement Board or the Department of Administrative
Services of the Commonwealth, made with a person so specified, during a period
so specified and at a rate not exceeding the rate so
specified
(h) a contract for the employment of a person as an employee of the
council
(i) a contract where, because of extenuating circumstances, remoteness
of locality or the unavailability of competitive or reliable tenderers, a
council decides by resolution (which states the reasons for the decision) that
a satisfactory result would not be achieved by inviting
tenders
(j) contract for which, because of provisions made by or under another
Act, a council is exempt from the requirement to invite a
tender
(k) a contract made in a case of emergency
(l) a contract to enter into a public-private
partnership
(m) if a council has entered into a public-private partnership—a
contract entered into by the council for the purposes of carrying out a
project under the public-private partnership (but only to the extent that the
contract is part of the project that has been assessed or reviewed under Part
6 of Chapter 12)
(n) a contract involving an estimated expenditure or receipt of an
amount of less than $100,000 or such other amount as may be prescribed by the
regulations
(o) a contract that is an environmental upgrade agreement (within the
meaning of Part 2A)
(p) a contract or arrangement between a council and the Electoral
Commissioner for the Electoral Commissioner to administer the council’s
elections, council polls and constitutional
referendums.
(4) A council that invites tenders from selected persons only is taken
to comply with the requirements of this section if those persons are
selected:(a) from persons who have responded to a public advertisement for
expressions of interest in the particular contract for which tenders are being
invited, or
(b) from persons who have responded to a public advertisement for
recognition as recognised contractors with respect to contracts of the same
kind as that for which tenders are being invited.
(5)–(7) (Repealed)
55A Extended operation of section 55 to council-related
entities
(1) A council must comply with the requirements of section 55
(including any regulations made under that section) even though the contract
to which that section applies involves something being done to or by an entity
that the council has formed or participated in
forming.
(2) However, if the entity concerned is formed under a public-private
partnership, subsection (1) has effect only to the extent that the contract is
not part of a project that has been assessed or reviewed in accordance with
Part 6 of Chapter 12.
(3) In this section:entity means any
partnership, trust, corporation, joint venture, syndicate or other body
(whether or not incorporated), but does not include any such entity that is of
a class prescribed by the regulations as not being within this
definition.
Division 2 Water supply, sewerage and stormwater drainage
works and facilities
56 Application of Division
(1) The provisions of this Division relating to water supply and
sewerage (but not stormwater drainage) do not apply to:(a) land within the area of operations of the Sydney Water Board under
the Sydney Water Act 1994,
or
(b) land within the area of operations of the Hunter Water Board under
the Hunter Water Act
1991.
(2) The provisions of this Division (sections 57, 58 and 59 excepted)
relating to water supply and sewerage (but not stormwater drainage) do not
apply to land within the area of operations of a water supply authority
constituted under the Water Management Act
2000.
57 Construction of works
(1) The Minister for Primary Industries may, on the application of one
or more councils, construct works of water supply, sewerage or stormwater
drainage under the Public Works Act
1912.
(2) The Minister for Primary Industries may agree to the construction
of the works by the council or councils concerned on the Minister’s
behalf.
58 Handing over of works
(1) The Minister for Primary Industries may, on or before the
completion of any such works, by notice given to the council or councils
concerned, charge the council or councils with the care and management of the
whole or part of the works (and of land on which the works are, or are being,
constructed).
(2) The notice may include provisions relating to the responsibility
of the council or councils concerned for financial costs associated with the
works.
(3) The notice has effect according to its tenor from the date the
notice is given to the council or councils
concerned.
(4) If more than one council is charged with the care and management
of works, each council may be charged with the care and management of a
specified portion of the works or the councils may be charged jointly as to
the whole or a specified portion.
59 Vesting of works
(1) The Minister for Primary Industries may, by notice published in
the Gazette, do either or both of the following:(a) declare that land acquired for the purposes of any such works, or
any part of the works, is vested in the council or
councils,
(b) declare that all right, title and interest of the Minister in any
such works, or part of the works, are vested in the council or
councils.
(2) The notice has effect according to its tenor from the date the
notice is published in the Gazette.
(3) If, on the date on which a notice under this section is published
in the Gazette, the council or councils concerned have not made all payments
to the Minister that may finally be required to be made in respect of the cost
of the acquisition of the land and of constructing the works, or part of the
works (whether or not that cost has been finally determined), the council or
councils concerned continue to be liable to make those
payments.
59A Ownership of water supply, sewerage and stormwater
drainage works
(1) Subject to this Division, a council is the owner of all works of
water supply, sewerage and stormwater drainage installed in or on land by the
council (whether or not the land is owned by the
council).
(2) A council may operate, repair, replace, maintain, remove, extend,
expand, connect, disconnect, improve or do any other things that are necessary
or appropriate to any of its works to ensure that, in the opinion of the
council, the works are used in an efficient manner for the purposes for which
the works were installed.
(3) The provisions of this section have effect despite anything
contained in section 42 of the Real Property
Act 1900.
60 Council works for which the approval of the Minister for
Primary Industries is required
A council must not, except in accordance with the approval of the
Minister for Primary Industries, do any of the following:(a) as to works of water supply—construct or extend a dam for
the impounding or diversion of water for public use or any associated
works,
(b) as to water treatment works—construct or extend any such
works,
(c) as to sewage—provide for sewage from its area to be
discharged, treated or supplied to any person,
(d) as to flood retarding basins prescribed by the
regulations—construct or extend any such
basins.
61 Directions of the Minister for Primary Industries
concerning certain works
(1) The Minister for Primary Industries or a person authorised by the
Minister may direct a council to take such measures as are specified in the
direction to ensure the proper safety, maintenance and working of any of the
following works:(a) dams for the impounding or diversion of water for public use or
any associated works,
(b) water treatment works,
(c) sewage treatment works.
(2) The council must comply with the
direction.
62 Powers of Minister during emergencies
(1) The Minister for Primary Industries or a person authorised by the
Minister may direct a council to take such measures with respect to any works
to which this Division applies as are specified in the direction if the
Minister or person is of the opinion that an emergency exists that constitutes
a threat to public health or public safety or that is causing or is likely to
cause damage to property.
(2) A direction may not be given unless the Minister for Primary
Industries has obtained the concurrence of the Minister for
Health.
(3) The council must comply with the
direction.
63 Effect of failure to comply with directions
(1) If a council does not comply with a direction under section 61 or
62 within a reasonable time after notice requiring compliance with the
direction is given to it by the Minister for Primary Industries or the person
authorised by the Minister, the Minister may do all such things as may be
necessary to give effect to the direction.
(2) The Minister may recover any cost incurred from the council as a
debt.
64 Construction of works for developers
Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 applies to
a council exercising functions under this Division in the same way as it
applies to a water supply authority exercising functions under that
Act.
65 Powers of Minister for Primary Industries—entry on
to land and other powers
Part 2 of Chapter 8 applies, in relation to works of water supply
and sewerage to which this Division applies, to the Minister for Primary
Industries and a person authorised by the Minister in the same way as it
applies to a council and a council employee (or other person) authorised by
the council.
66 Appointment of administrator
(1) The Minister for Primary Industries 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 Primary Industries with the concurrence of the Minister for
Local Government.
(4) The administrator is to be paid a salary determined by the
Minister for Primary Industries 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 Orders
A council may order a person to do or to refrain from doing a
thing specified in Column 1 of the following Table if the circumstances
specified opposite it in Column 2 of the Table exist and the person comes
within the description opposite it in Column 3 of the Table.Note. This section does not affect the power of a council to give an
order (or a notice or direction) under the authority of another
Act.For example, some of those Acts and the orders (or notices or
directions) that may be given include:
A person who fails to comply with an order is guilty of an
offence—see sec 628.
Table
Orders
Orders
requiring or prohibiting the doing of things to or on premises
Column 1 | Column 2 | Column 3 |
To do
what? | In what circumstances? | To whom? |
1 | To demolish or remove a
building | (a)–(c) (Repealed)
(d) Building is erected in a catchment district and causes or is
likely to cause pollution of the water supply
| Owner of building |
2 | (Repealed) | | |
3 | To repair or make structural
alterations to a building | (a), (b) (Repealed)
(c) Building is erected in a catchment district and causes or is
likely to cause pollution of the water supply
| Owner of building |
4 | (Repealed) | | |
5 | To take such action as is necessary to bring into compliance with
relevant standards or requirements set or made by or under this Act or under
the Local Government Act
1919: (a) a camping ground, caravan park or manufactured home
estate
(b) a moveable dwelling or manufactured home
(c) (Repealed)
(d) a place of shared accommodation
(e) a hairdressers shop or beauty salon
(f) a mortuary
(g) a water meter on premises
(h) a water supply or sewerage system on premises, but only in
relation to any work that is not plumbing and drainage work within the meaning
of the Plumbing and Drainage Act
2011
| Failure to comply with relevant
standards or requirements set or made by or under this Act or under the
Local Government Act
1919 | Owner, occupier or manager or, in the
case of a water meter, water supply or sewerage system in respect of which a
defect occurs in work due to faulty workmanship of, or defective material
supplied by, a licensed contractor (being the holder of a licence in force
under the Home Building Act
1989 authorising the holder to contract to do the work) within
12 months after the work is carried out or the material is supplied, the
licensed contractor |
6 | (Repealed) | | |
7 | To fence land | Public health, safety or convenience
renders it necessary or expedient to do so and there is no adequate fence
between the land and a public place | Owner or occupier of
land |
8 | To identify premises with such numbers
or other identification in such manner as is specified in the
order | Premises have a frontage to or
entrance from a road and there are no markings that can readily be seen and
understood from the road | Owner or occupier of
land |
9 | To fence, empty, fill in or cover up a
hole or waterhole in the manner specified in the order | Hole or waterhole is or may become
dangerous to life | Owner or occupier of
land |
10 | To remove or stack articles or matter,
to cover articles or matter, to erect fences or screens or to plant
trees | Land is in the immediate vicinity of a
public place and is used for the storage of articles or matter so as to create
or be likely to create unsightly conditions | Owner or occupier of
land |
11 | To do or to refrain from doing such
things as are specified in the order to prevent environmental damage, to
repair environmental damage or to prevent further environmental
damage | Work carried out on land has caused or is likely to cause
environmental damage, being damage to the physical environment that is caused
by: (a) drainage, or
(b) drainage works, or
(c) obstructing a natural watercourse other than by a work constructed
or used under a water management work approval granted under the Water Management Act
2000,
not being environmental damage arising from premises, works or equipment
the subject of a licence issued under the Protection of the Environment Operations Act
1997 or the subject of a notice or direction issued by a
regulatory authority under that Act
| Owner or occupier of
land |
12 | To do such things as are necessary to
control the flow of surface water across land | Other land, or a building on the land
or other land, is being damaged or is likely to be damaged | Owner or occupier of
land |
13, 14 | (Repealed) | | |
Orders requiring that
premises be used or not used in specified ways
Column 1 | Column 2 | Column 3 |
To do
what? | In what circumstances? | To whom? |
15 | Not to conduct, or to cease
conducting, an activity on premises (whether or not the activity is approved
under this Act) | The activity constitutes or is likely to constitute: (a) a life threatening hazard, or
(b) a threat to public health or public
safety
and is not regulated or controlled under any other Act by a public
authority
| Any person apparently engaged in
promoting, conducting or carrying out the activity |
15A | (Repealed) | | |
16 | To cease the use of premises or to
evacuate premises | A person to whom order No 15 is given
has failed to comply with the order | The person to whom order No 15 is
given |
17 | To leave premises or not to enter
premises | A person to whom order No 15 is given
has failed to comply with the order | Any person |
18 | Not to keep birds or animals on
premises, other than of such kinds, in such numbers or in such manner as
specified in the order | Birds or animals kept on premises are: (a) in the case of any premises (whether or not in a catchment
district)—of an inappropriate kind or number or are kept
inappropriately, or
(b) in the case of premises in a catchment district—birds or
animals (being birds or animals that are suffering from a disease which is
communicable to man or to other birds or animals) or
pigs
| Occupier of
premises |
19 | To use or not to use a tennis court as
specified | Actual or likely annoyance or threat
to the safety of neighbours or users of a public place | Occupier of land |
Orders requiring the
preservation of healthy conditions
Column 1 | Column 2 | Column 3 |
To do
what? | In what circumstances? | To whom? |
20 | To do such things as are specified in
the order to put premises, vehicles or articles used for the manufacture,
preparation, storage, sale, transportation or other handling or use of or in
relation to food into a clean or sanitary condition | The premises, vehicle or article is
not in a clean or sanitary condition | Owner or occupier of premises or owner
or operator of vehicle or article |
21 | To do or refrain from doing such
things as are specified in the order to ensure that land is, or premises are,
placed or kept in a safe or healthy condition | The land or premises are not in a safe
or healthy condition | Owner or occupier of land or
premises |
22 | To store, treat, process, collect,
remove, dispose of or destroy waste which is on land or premises in the manner
specified in the order, provided that it is not inconsistent with regulations
made under the Protection of the
Environment Operations Act 1997 | Waste is present or generated on the
land or premises and is not being dealt with satisfactorily, and is not
regulated or controlled by, or subject to, a licence or notice granted or
issued under the Protection of the
Environment Operations Act 1997 | Owner or occupier of land or premises,
owner of or person responsible for the waste or for any receptacle or
container in which the waste is contained |
22A | To remove or dispose of waste that is
on any residential premises or to refrain from keeping waste on those
premises | The waste is causing or is likely to
cause a threat to public health or the health of any individual | Owner or occupier of the
premises |
23 | To connect premises to the
council’s water supply by a specified date | The premises are situated within 225
metres of a water pipe of the council | Owner or occupier of
land |
24 | To connect premises with a sewerage
system by a specified date | The premises are situated within 75
metres of a sewer of the council | Owner or occupier of
premises |
25 | Not to use or permit the use of a
human waste storage facility on premises after a specified date | It is necessary for the purpose of
protecting public health | Owner or occupier of
premises |
Orders requiring the
protection or repair of public places
Column 1 | Column 2 | Column 3 |
To do
what? | In what circumstances? | To whom? |
26 | (Repealed) | | |
27 | To remove an object or matter from a
public place or prevent any object or matter being deposited
there | The object or matter: (a) is causing or is likely to cause an obstruction or encroachment of
or on the public place and the obstruction or encroachment is not authorised
by or under any Act, or
(b) is causing or is likely to cause danger, annoyance or
inconvenience to the public
| Person causing obstruction or
encroachment or owner or occupier of land from which the object or matter
emanates or is likely to emanate |
28 | To take whatever steps
are necessary to prevent damage to a public place and to repair damage to a
public place | There is actual or likely
damage: | |
(a) by excavation or removal of material from or adjacent to the
public place, or
| Person responsible for the excavation
or the removal of the material |
(b) by a work or structure, or
| Owner or person entitled to the
benefit of the work or structure |
(c) by surface drainage or irrigation
| Owner or occupier of land from which
surface drainage flows or from which spray emanates |
29 | To alter or repair a work or structure
on, over or under a public place | It is in the public interest to do
so | Owner of the work or
structure |
Orders requiring
compliance with approval
Column 1 | Column 2 | Column 3 |
To do
what? | In what circumstances? | To whom? |
30 | To comply with an
approval | The approval is not being complied
with | Person entitled to act on the approval
or person acting otherwise than in compliance with the
approval |
125 Abatement of public nuisances
A council may abate a public nuisance or order a person
responsible for a public nuisance to abate it.Note. Abatement means the
summary removal or remedying of a nuisance (the physical removal or
suppression of a nuisance) by an injured party without having recourse to
legal proceedings.Nuisance consists of
interference with the enjoyment of public or private rights in a variety of
ways. A nuisance is “public” if it materially affects the
reasonable comfort and convenience of a sufficient class of people to
constitute the public or a section of the public. For example, any wrongful or
negligent act or omission in a public road that interferes with the full, safe
and convenient use by the public of their right of passage is a public
nuisance.
126 Giving orders to public authorities
(1) An order under this Division may not be given in respect of the
following land without the prior written consent of the Minister:• vacant Crown land
• a reserve within the meaning of Part 5 of the Crown Lands Act
1989
• a common.
(2) The Minister must not give consent in respect of vacant Crown
lands or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the
Minister has consulted the Minister administering the Crown Lands Act
1989.
127 Making of regulations for the purposes of this
Division
The regulations may prescribe acts or circumstances that are taken
to be included in or excluded from any of the acts or circumstances specified
in Column 1 or 2 of the Table to section 124.
128 Catchment districts
(1) The Governor may proclaim a district to be a catchment district
for the purposes of this Act.
(2) An owner of a building who complies with order No 1 in the Table
to section 124 in the circumstances specified in paragraph (d) for that order,
or order No 3 in that Table in the circumstances specified in paragraph (c)
for that order, under section 124 is entitled to compensation from the council
for the expenses incurred by the owner in complying with the
order.
128A Orders about removal or keeping of waste
(1) An order in terms of order No 22A in the Table to section 124
ceases to have effect, unless earlier revoked under section 153, at the end of
the period of 5 years after it is given.
(2) The protection of public health is the paramount consideration in
giving any such order.
Division 2 Procedures to be observed before giving
orders
129 Circumstances in which compliance with this Division is
required
(1) Before giving an order, a council must comply with this
Division.
(2) This section does not apply to:(a) an order in terms of order No 15 in the Table to section 124,
or
(a1) an order in terms of order No 22A in the Table to section 124
(except to the extent that this section would otherwise require compliance
with section 131A), or
(b) an order given, and expressed to be given, in an
emergency.
130 Effect of compliance with this Division
A council that complies with this Division is taken to have
observed the rules of natural justice (the rules of procedural
fairness).
131 Criteria to be considered before order is
given
If the council has adopted criteria in a local policy under Part 3
on which it is to give an order, the council is required to take the criteria
into consideration before giving the order.
131A Orders that make or are likely to make residents
homeless
(1) If an order will or is likely to have the effect of making a
resident homeless, the council must consider whether the resident is able to
arrange satisfactory alternative accommodation in the
locality.
(2) If the person is not able to arrange satisfactory alternative
accommodation in the locality, the council must provide the person
with:(a) information as to the availability of satisfactory alternative
accommodation in the locality, and
(b) any other assistance that the council considers
appropriate.
132 Notice to be given of proposed order
(1) Before giving an order, a council must give notice to the person
to whom the order is proposed to be given of its intention to give the order,
the terms of the proposed order and the period proposed to be specified as the
period within which the order is to be complied
with.
(2) The council’s notice must also indicate that the person to
whom the order is proposed to be given may make representations to the council
as to why the order should not be given or as to the terms of or period for
compliance with the order.
(3) The notice may provide that the representations are to be made to
the council or a specified committee of the council on a specified meeting
date or to a specified councillor or employee of the council on or before a
specified date being, in either case, a date that is reasonable in the
circumstances of the case.
133 Making of representations
(1) A person may, in accordance with a notice under section 132, make
representations concerning the proposed order.
(2) For the purpose of making the representations, the person may be
represented by an Australian legal practitioner or
agent.
134 Hearing and consideration of representations
The council or a specified committee, or the specified councillor
or employee of the council, is required to hear and to consider any
representations made under section 133.
135 Procedure after hearing and consideration of
representations
(1) After hearing and considering any representations made concerning
the proposed order, the council, the committee, or the councillor or employee
concerned, may determine:(a) to give an order in accordance with the proposed order,
or
(b) to give an order in accordance with modifications made to the
proposed order, or
(c) not to give an order.
(2) If the determination is to give an order in accordance with
modifications made to the proposed order, the council is not required to give
notice under this Division of the proposed order as so
modified.
Division 3 Orders generally
136 Reasons for orders to be given
(1) A council must give the person to whom an order is directed the
reasons for the order.
(2) The reasons may be given in the order or in a separate
instrument.
(3) The reasons must be given when the order is given, except in a
case of urgency. In a case of urgency, the reasons may be given the next
working day.
137 Period for compliance with order
(1) An order must specify a reasonable period within which the terms
of the order are to be complied with, subject to this
section.
(2) An order may require immediate compliance with its terms in
circumstances which the council believes constitute a serious risk to health
or safety or an emergency.
138 Notice of right to appeal against order
(1) A council must, in giving a person notice of an order:(a) state that the person may appeal to the Land and Environment Court
against the order or a specified part of the order, and
(b) specify the period within which an appeal may be
made.
(2) This section does not apply in relation to order No 22A in the
Table to section 124.
138A Approval or consent not required to comply with
order
A person who carries out work in compliance with a requirement of
an order does not have to make an application under Division 1, 2 or 3 of Part
1 for approval of the work or an application under Part 4 of the Environmental Planning and Assessment Act
1979 for consent to carry out the
work.
139 Order may specify standards and work that will satisfy
those standards
(1) Instead of specifying the things the person to whom the order is
given must do or refrain from doing, an order:(a) may specify the standard that the premises are required to meet,
and
(b) may indicate the nature of the work that, if carried out, would
satisfy that standard.
(2) Such an order may require the owner or occupier to prepare and
submit to the council, within the period (not exceeding 3 months) specified in
the order, particulars of the work the owner or occupier considers necessary
to make provision for such matters as may be so
specified.
140 Compliance with order referred to in sec 139
(2)
(1) A person complies with a requirement of an order referred to in
section 139 (2) by submitting to the council such matters as the person would
be required to submit under section 81 if applying to the council for approval
of the work.
(2) (Repealed)
141 Council’s response to submission of particulars of
work by owner
(1) The council must, within 28 days after particulars of work are
submitted to it in accordance with section 139 (2):(a) accept the particulars without modification or with such
modifications as it thinks fit, or
(b) reject the particulars.
(2) If a council accepts the particulars of work without modification,
the council must forthwith order the owner to carry out that
work.
(3) If a council accepts the particulars of work with modifications or
rejects the particulars, or if an owner fails to submit particulars of work in
accordance with section 139 (2), the council must:(a) prepare, within 3 months after the acceptance, rejection or
failure, particulars of the work that it considers necessary to make provision
for the matters specified in the order referred to in section 139 given to the
owner, and
(b) order the owner to carry out that work.
(4) An order under this section is not invalid merely because of the
failure of the council to accept or reject any particulars of work or prepare
particulars of any work, as the case may be, within the period it is required
to do so by this section.
(4A) An order under this section forms part of the order under section
124 to which it relates.
(5) A council may recover from an owner as a debt its expenses of
preparing particulars of work under this section.
142 Orders affecting heritage items
(1) This section applies to an item of the environmental
heritage:(a) which is listed in the Register of the National Estate kept in
pursuance of the Australian Heritage Commission Act
1975 of the Commonwealth, or
(b) to which an interim heritage order or listing on the State
Heritage Register under the Heritage Act
1977 applies or to which an order under section 136 of that
Act applies, or
(c) which is identified as such an item in an environmental planning
instrument.
(2) A council must not give an order under this Part in respect of an
item of the environmental heritage to which this section applies until after
it has considered the impact of the order on the heritage significance of the
item.
(3) A council must not give an order under this Part in respect of an
item of the environmental heritage to which subsection (1) (a) or (b) applies
until after it has given notice of the order to the Heritage Council and has
considered any submissions duly made to it by the Heritage
Council.
(3A) The Heritage Council may, by instrument in writing served on a
council, exempt the council from the requirements of subsection
(3).
(3B) An exemption under subsection (3A) may be given unconditionally or
subject to such conditions as the Heritage Council determines, and may be
varied or revoked by a subsequent instrument in writing made by the Heritage
Council and served on the council.
(4) The Heritage Council may make a submission:(a) within 28 days after it is given notice by the council,
or
(b) if, within 28 days after it is given notice by the council, the
Heritage Council requests that a joint inspection of the item be made, within
28 days after the joint inspection is made.
(5) If the Heritage Council notifies a council that it wishes to be
consulted in connection with an order under section 141, the council must
include a statement to that effect in any order under section
139.
(6) This section does not apply to order No 15, 16, 17 or 22A in the
Table to section 124 if given by a council in an
emergency.
143 Combined orders
(1) A council may include two or more orders in the same
instrument.
(2) However, an order in terms of order No 22A in the Table to section
124 cannot be included with another order in the same
instrument.
144 Giving and taking effect of orders
An order is given by serving a copy of the order on the person to
whom it is addressed and takes effect from the time of service or a later time
specified in the order.
145 Orders may be given to two or more persons
jointly
If appropriate in the circumstances of the case, an order may
direct two or more people to do the thing specified in the order
jointly.
146 Notice in respect of land or building owned or occupied
by more than one person
(1) If land, including land on which a building is erected, is owned
or occupied by more than one person:(a) an order in respect of the land or building is not invalid merely
because it was not given to all of those owners or occupiers,
and
(b) any of those owners or occupiers may comply with such an order
without affecting the liability of the other owners or occupiers to pay for or
contribute towards the cost of complying with the
order.
(2) Nothing in this Division affects the right of an owner or occupier
to recover from any other person all or any of the expenses incurred by the
owner or occupier in complying with such an order.
147 Compliance with orders by occupiers or
managers
If an occupier or manager complies with an order, the occupier or
manager may (unless the occupier or manager has otherwise agreed) deduct the
cost of so complying (together with interest at the rate currently prescribed
by the Supreme Court rules in respect of unpaid judgment debts) from any rent
payable to the owner or may recover the cost (and that interest) from the
owner as a debt in any court of competent
jurisdiction.
148 Occupier of land may be required to permit owner to carry
out work
(1) The council may order the occupier of any land to permit the owner
of the land to carry out such work on the land as is specified in the order
(being work that is, in the council’s opinion, necessary to enable the
requirements of this Act or the regulations, or of any order under Division 1,
to be complied with).
(2) An occupier of land on whom such an order is served must, within 2
days after the order is served, permit the owner to carry out the work
specified in the order.
(3) The owner of the land is not guilty of an offence arising from his
or her failure to comply with the requirements of this Act or the regulations,
or of any order under Division 1, if, while an order under this section is in
force, the occupier of the land refuses to permit the owner to carry out the
work specified in the order.
(4) Subsection (3) applies only if the owner of the land satisfies the
Court that the owner has, in good faith, tried to comply with the requirements
concerned.
149–151 (Repealed)
152 Modification of orders
A council may, at any time, modify an order it has given to a
person (including a modification of the period specified for compliance with
the order) if the person agrees to that modification.
153 Revocation of orders
(1) An order given by the council may be revoked by the council at any
time.
(2) An order given by the Minister may be revoked by the Minister at
any time.
(3) (Repealed)
154 The Minister may exercise any function concerning an
order that a council may exercise
(1) The Minister may exercise any function under this Part that the
council may exercise.
(2) This Part (except Division 2) applies to the Minister in the same
way as it applies to a council for the purpose of exercising any such
function.
(3) The Minister must not give an order to protect public health until
after the Minister has consulted the Minister administering the Public Health Act
2010.
(3A) The Minister must not give an order that relates to an activity
that is the subject of a development consent granted under the Environmental Planning and Assessment Act
1979 by the Minister administering that Act until after the
Minister has consulted that other Minister. However, the Minister is not
required to consult, but must notify, the other Minister in the case
of:(a) an order in terms of order No 15 in the Table to section 124,
or
(b) an order given, and expressed to be given, in an
emergency.
(4) If the Minister’s functions under this section are
delegated, a person to whom an order by the Minister’s delegate is given
may apply to the Minister for a review of the order within 28 days after
service of the order.
(5) The Minister’s decision on the review is
final.
(6) Part 5 (Appeals) does not apply to an order given under this
section.
(7) The Minister must forward a copy of an order given under this
section to the relevant council.
155 Effect of inconsistency between council’s order and
Minister’s order
An order given by a council under Division 1, to the extent to
which it is inconsistent with an order given by the Minister under section
154, is void.
156 Minister may revoke or modify a council’s
order
(1) The Minister may revoke or modify an order given by a
council.
(1A) The Minister administering the Environmental Planning and Assessment Act
1979 may revoke or modify an order given by a council that
relates to an activity that is the subject of a development consent granted
under that Act. A reference in this section to the Minister includes a
reference to the Minister administering that Act.
(2) Notice of the revocation or modification must be given to the
council and the person to whom the order was given.
(3) The revocation or modification takes effect from the date
specified in the Minister’s notice. The date may be the date on which
the order was given by the council or a later date.
(4) The Minister may prohibit a council from re-making an order that
is revoked or modified under this section, totally or within such period or
except in accordance with such terms and conditions (if any) as the Minister
may specify.
(5) Notice of a prohibition may be given in the same notice as notice
of the revocation or modification of an order or in a separate
notice.
157 Limitation on Minister’s orders
The Minister must not give an order under this Part that is
inconsistent with, or has the effect of revoking or modifying, an order given
by the council unless the Minister is of the opinion that:(a) it is necessary because of an emergency, or
(b) it is necessary because of the existence or reasonable likelihood
of a serious risk to health or safety, or
(c) the order relates to a matter of State or regional significance,
or
(d) the order relates to a matter in which the intervention of the
Minister is necessary in the public interest.
Orders
Part 3 Adoption of local policies concerning approvals and
orders
158 Preparation of draft local policy for
approvals
(1) A council may prepare a draft local approvals
policy.
(2) A draft local approvals policy is to consist of three
parts.
(3) Part 1 is to specify the circumstances (if any) in which (if the
policy were to be adopted) a person would be exempt from the necessity to
obtain a particular approval of the council.
(4) Part 2 is to specify the criteria (if any) which (if the policy
were to be adopted) the council must take into consideration in determining
whether to give or refuse an approval of a particular
kind.
(5) Part 3 is to specify other matters relating to
approvals.
159 Preparation of draft local policy for orders
(1) A council may prepare a draft local orders
policy.
(2) A draft local orders policy is to specify the criteria which (if
the policy were to be adopted) the council must take into consideration in
determining whether or not to give an order under section
124.
(3) This section does not apply in relation to order No 22A in the
Table to section 124.
160 Public notice and exhibition of draft local
policy
(1) The council must give public notice of a draft local policy after
it is prepared.
(2) The period of public exhibition must be not less than 28
days.
(3) The public notice must also specify a period of not less than 42
days after the date on which the draft local policy is placed on public
exhibition during which submissions may be made to the
council.
(4) The council must, in accordance with its notice, publicly exhibit
the draft local policy together with any other matter which it considers
appropriate or necessary to better enable the draft local policy and its
implications to be understood.
161 Adoption of draft local policy
(1) After considering all submissions received by it concerning the
draft local policy, the council may decide:(a) to amend its draft local policy, or
(b) to adopt it without amendment, or
(c) not to adopt it, except where the adoption of criteria is
mandatory.
(2) If the council decides to amend its draft local policy, it may
publicly exhibit the amended draft local policy in accordance with this Part
or, if the council is of the opinion that the amendments are not substantial,
it may adopt the amended draft local policy without public
exhibition.
162 Director-General’s consent required to exemption
from necessity for approval
A council has no power to adopt that part of a draft local
approvals policy that specifies circumstances in which (if the policy were to
be adopted) a person would be exempt from the necessity to obtain a particular
approval of the council, unless the council has received the
Director-General’s consent to the adoption of that
part.
163 Effect of inconsistency between council’s local
policy and this Act or the regulations
A local policy adopted under this Part by a council, to the extent
to which it is inconsistent with this Act or the regulations, is
void.
164 Local policy not to be more onerous than this Act or the
regulations
(1) If a criterion is prescribed by this Act or the regulations in
relation to:(a) a specified aspect of an activity that may be carried out only
with the prior approval of the council, or
(b) a specified aspect of anything for which an order may be given
under Part 2,
a local policy adopted under this Part by a council, to the extent to
which its provisions impose a more onerous criterion in relation to the
specified aspect, is void.
(2) However, for the purposes of this section, the imposition of a
criterion in a local policy in relation to a specified aspect, does not, in
the absence of the prescription by this Act or the regulations of a criterion
in relation to that aspect, constitute a more onerous
criterion.
165 Amendment and revocation of local policy
(1) A council may amend a local policy adopted under this Part by
means only of a local policy so adopted.
(2) An amending local policy may deal with the whole or part of the
local policy amended.
(3) A council may at any time revoke a local policy adopted under this
Part.
(4) A local policy (other than a local policy adopted since the last
general election) is automatically revoked at the expiration of 12 months
after the declaration of the poll for that
election.
166 Public notice of adoption of local policy
The council must give public notice, in a form and manner
prescribed by the regulations (or, if no form and manner are so prescribed, in
a form and manner determined by the council), of the adoption or revocation
(other than by section 165 (4)) of a local policy.
167 Public availability of local policy
(1) A local policy adopted under this Part by a council must be
available for public inspection free of charge at the office of the council
during ordinary office hours.
(2) Copies of the local policy must also be available free of charge
or, if the council determines, on payment of the approved
fee.
Part 4
168–175 (Repealed)
Part 5 Appeals
Division 1 Approvals and orders
176 Appeal by an applicant concerning an approval
(1) An applicant who is dissatisfied with the determination of a
council with respect to the applicant’s application for an approval may
appeal to the Land and Environment Court.
(2) The appeal must be made within 12 months after:(a) the date endorsed on the notice under section 99 or 100 in respect
of the application, or
(b) the date on which the application is taken to have been determined
under section 105, or
(c) the date endorsed on the notice of extension or renewal of the
approval if the approval has been extended or renewed under section 107 or the
date endorsed on the refusal to extend or renew the approval if extension or
renewal of the approval is refused under section
107,
as the case requires.
177 Appeal by an applicant as to whether a “deferred
commencement” approval operates
(1) An applicant who is dissatisfied with a decision that a council is
not satisfied as to a matter, being a matter as to which it must be satisfied
before a “deferred commencement” approval under section 95 can
operate, may appeal to the Land and Environment
Court.
(2) The appeal must be made within 12 months after the council
notifies the applicant of its decision.
178 Appeal against the revocation or modification of an
approval
(1) If an approval is revoked or modified under section 108, the
applicant for the approval may appeal to the Land and Environment
Court.
(2) The appeal must be made within 3 months after the date on which
the revocation or modification takes effect.
(3) The Court may determine the appeal by affirming, varying or
cancelling the instrument of revocation or
modification.
179 Awarding of compensation concerning approvals
(1) The Land and Environment Court, on the hearing of an appeal or
otherwise, has a discretion to award compensation to an applicant for an
approval for any expense incurred by the person as a consequence of:(a) a council’s refusal to grant the approval,
or
(b) a council’s delay in granting the
approval,
if the Court considers that the council would not have acted in the way
it did but for the fact that it was unduly influenced by vexatious or
unmeritorious submissions made by members of the public or that the council
has acted vexatiously.
(2) An application for compensation may be made on the hearing of an
appeal or by proceedings brought for the purpose of claiming
compensation.
(3) A claim for compensation may not be made more than 28 days after
the date on which the Court gives its decision on an appeal concerning the
application for approval or more than 3 months after the date of the
council’s determination of the application if an appeal is not made
against the determination.
(4) Compensation under this section is to be awarded against the
council.
Note. The Land and Environment Court has other powers to award
compensation under section 677.
180 Appeals concerning orders
(1) A person on whom an order is served may appeal against the order
to the Land and Environment Court.
(2) (Repealed)
(3) The appeal must be made within 28 days after the service of the
order on the person or, if an order is given under section 141, within 28 days
after the service of the order given under section 141 on the person. The
person may make an appeal within the later period whether or not the person
has made an appeal within the earlier period.
(4) On hearing an appeal, the Court may:(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the council could
have made, or
(d) find that the order is sufficiently complied with,
or
(e) make such order with respect to compliance with the order as the
Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks
fit.
(5) This section does not apply in relation to order No 22A in the
Table to section 124.
181 Awarding of compensation concerning orders
(1) The Land and Environment Court, on the hearing of an appeal or
otherwise, has a discretion to award compensation to a person on whom an order
is served for any expense incurred by the person as a consequence of the
order, including the cost of any investigative work or reinstatement carried
out by the person as a consequence of the order, but only if the person
satisfies the Court that the giving of the order was unsubstantiated or the
terms of the order were unreasonable.
(2) A claim for compensation may not be made more than 28 days after
the date on which the Court gives its decision on the appeal or more than 3
months after the date of the order if an appeal is not made against the
order.
(3) Compensation under this section is to be awarded against the
council.
182 Appeals concerning particulars of work submitted to
councils
(1) A person may appeal to the Land and Environment Court against the
failure of the council:(a) to accept or reject, under section 141 (1), particulars of work
submitted to it in accordance with section 139 (2), or
(b) to prepare, under section 141 (3) (a), particulars of the work
that it considers necessary to make provision for the matters specified in an
order given to an owner under section 139.
(2) The appeal must be made within 28 days after the period limited
under section 141 (1) or (3) (a) for compliance by the
council.
(3) On hearing an appeal, the Court may:(a) make any order that the council could have made,
or
(b) order the council to perform its functions under section 141 (1)
or (3) (a) within such time as is specified in the
order.
(4) This section does not apply in relation to order No 22A in the
Table to section 124.
183 Effect of appeal on order
If an appeal is duly made to the Land and Environment Court
against an order, the appeal does not effect a stay of the
order.
184 Court’s powers not limited by this
Division
This Division does not limit a power of the Land and Environment
Court under the Land and Environment Court
Act 1979.
Division 2
185 (Repealed)
Chapter 8 What ancillary functions does a council
have?
Introduction. This Chapter confers on councils certain functions which it is
necessary or desirable for them to have in order to carry out their other
functions. These functions are “ancillary” in the sense that they
are auxiliary to, they give support to, and they aid the carrying out of, the
other functions of a council, particularly its service and regulatory
functions.Councils are given power to acquire land by compulsory
process.
The Chapter also confers on councils powers to enter land and
buildings and to carry out inspections.
A council may also have similar powers for different purposes
under other Acts. For example, under the Roads Act 1993, a council has power
to compulsorily acquire land for road purposes and may enter land for the
purposes of that Act.
Part 1 Acquisition of land
186 For what purposes may a council acquire land?
(1) A council may acquire land (including an interest in land) for the
purpose of exercising any of its functions.
(2) Without limiting subsection (1), a council may acquire:(a) land that is to be made available for any public purpose for which
it is reserved or zoned under an environmental planning instrument,
or
(b) land which forms part of, or adjoins or lies in the vicinity of,
other land proposed to be acquired under this Part.
(3) However, if the land acquired is, before its acquisition,
community land vested in a council, the acquisition does not discharge the
land from any trusts, estates, interests, dedications, conditions,
restrictions or covenants that affected the land or any part of the land
immediately before that acquisition.
187 How does a council acquire land?
(1) Land that a council is authorised to acquire under this Part may
be acquired by agreement or by compulsory process in accordance with the
Land Acquisition (Just Terms Compensation)
Act 1991.
(2) A council may not give a proposed acquisition notice under the
Land Acquisition (Just Terms Compensation)
Act 1991 without the approval of the
Minister.
188 Restriction on compulsory acquisition of land for
re-sale
(1) A council may not acquire land under this Part by compulsory
process without the approval of the owner of the land if it is being acquired
for the purpose of re-sale.
(2) However, the owner’s approval is not required if:(a) the land forms part of, or adjoins or lies in the vicinity of,
other land acquired at the same time under this Part for a purpose other than
the purpose of re-sale, or
(b) the owner of the land cannot be identified after diligent inquiry
has been made and at least 6 months has elapsed since that inquiry was
made.
(3) For the purposes of subsection (2) (b), diligent inquiry
has the meaning given by the regulations, and includes the giving of notice of
the proposed acquisition to the New South Wales Aboriginal Land Council and to
the relevant Local Aboriginal Land Council.
189 No restriction as to area
Land may be acquired by a council under this Part even if it lies
wholly or partly outside the council’s area.
190 Special provisions relating to land containing
minerals
Division 4 of Part 8 of the Public Works Act 1912 applies to a
council and land acquired by a council in the same way as that Division
applies to a Constructing Authority and land acquired by a Constructing
Authority.
Part 2 Entry on to land and other powers
191 Power of entry
(1) For the purpose of enabling a council to exercise its functions, a
council employee (or other person) authorised by a council may enter any
premises.
(2) Entry may only be made at any reasonable hour in the daytime or at
any hour during which business is in progress or is usually carried on at the
premises.
191A Power of entry—construction and maintenance of
water supply, sewerage and stormwater drainage works
(1) Without limiting section 191, a council employee (or other person)
authorised by a council may enter any premises to carry out water supply work,
sewerage work or stormwater drainage work on or under the premises (being work
that the council is authorised by this or any other Act to carry
out).
(2) Subsection (1) does not apply to premises that comprise a National
Parks and Wildlife reserve.
192 Inspections and investigations
For the purpose of enabling a council to exercise its functions, a
person authorised to enter premises under this Part may:(a) inspect the premises and any food, vehicle, article, matter or
thing on the premises, and
(b) for the purpose of an inspection:(i) open any ground and remove any flooring and take such measures as
may be necessary to ascertain the character and condition of the premises and
of any pipe, sewer, drain, wire or fitting, and
(ii) require the opening, cutting into or pulling down of any work if
the person authorised has reason to believe or suspect that anything on the
premises has been done in contravention of this Act or the regulations,
and
(c) take measurements, make surveys and take levels and, for those
purposes, dig trenches, break up the soil and set up any posts, stakes or
marks, and
(d) require any person at those premises to answer questions or
otherwise furnish information in relation to the matter the subject of the
inspection or investigation, and
(e) examine and test any meter, and
(f) measure a supply of water, and
(g) take samples or photographs in connection with any
inspection.
193 Notice of entry
(1) Before a person authorised to enter premises under this Part does
so, the council must give the owner or occupier of the premises written notice
of the intention to enter the premises.
(2) The notice must specify the day on which the person intends to
enter the premises and must be given before that
day.
(3) This section does not require notice to be given:(a) if entry to the premises is made with the consent of the owner or
occupier of the premises, or
(b) if entry to the premises is required because of the existence or
reasonable likelihood of a serious risk to health or safety,
or
(c) if entry is required urgently and the case is one in which the
general manager has authorised in writing (either generally or in the
particular case) entry without notice, or
(d) if entry is made solely for the purpose of reading a meter or
other device for measuring:(i) the supply of water to the premises from the council’s water
mains, or
(ii) the discharge of sewage or other waste matter from the premises
into the council’s sewer mains.
194 Use of force
(1) Reasonable force may be used for the purpose of gaining entry to
any premises (other than residential premises) under a power conferred by this
Part, but only if authorised by the council in accordance with this
section.
(2) The authority of the council:(a) must be in writing, and
(b) must be given in respect of the particular entry concerned,
and
(c) must specify the circumstances which are required to exist before
force may be used.
195 Notification of use of force or urgent entry
(1) A person authorised to enter premises under this Part who:(a) uses force for the purpose of gaining entry to the premises,
or
(b) enters the premises in an emergency without giving written notice
to the owner or occupier,
must promptly advise the council.
(2) The council must give notice of the entry to such persons or
authorities as appear to the council to be appropriate in the
circumstances.
196 Care to be taken
(1) In the exercise of a function under this Part, a person authorised
to enter premises must do as little damage as possible. The council must
provide, if necessary, other means of access in place of any taken away or
interrupted by a person authorised by it.
(2) As far as practicable, entry on to fenced land is to be made
through an existing opening in the enclosing fence. If entry by that means is
not practicable, a new opening may be made in the enclosing fence, but the
fence is to be fully restored when the need for entry
ceases.
(3) If, in the exercise of a function under this Part, any pit,
trench, hole or bore is made, the council must, if the owner or occupier of
the premises so requires:(a) fence it and keep it securely fenced so long as it remains open or
not sufficiently sloped down, and
(b) without unnecessary delay, fill it up or level it or sufficiently
slope it down.
197 Recovery of cost of entry and inspection
If a person authorised by a council enters any premises under this
Part for the purpose of making an inspection and as a result of that
inspection, under a power conferred on the council, the council requires any
work to be carried out on or in the premises, the council may recover the
reasonable costs of the entry and inspection from the owner or occupier of the
premises.
198 Compensation
A council must pay compensation for any damage caused by any
person authorised by the council under this Part to enter premises, other than
damage arising from work done for the purpose of an inspection which reveals
that there has been a contravention of this or any other Act.Note. Section 730 provides for the resolution of claims for compensation
under this section in cases of dispute between the person claiming the
compensation and the council.
199 Authority to enter premises
(1) A power conferred by this Part to enter premises, or to make an
inspection or take other action on premises, may not be exercised unless the
person proposing to exercise the power is in possession of an authority and
produces the authority if required to do so by the owner or occupier of the
premises.
(2) The authority must be a written authority which is issued by the
council and which:(a) states that it is issued under this Act, and
(b) gives the name of the person to whom it is issued,
and
(c) describes the nature of the powers conferred and the source of the
powers, and
(d) states the date (if any) on which it expires,
and
(e) describes the kind of premises to which the power extends,
and
(f) bears the signature of the general
manager.
(3) This section does not apply to a power conferred by a search
warrant.
200 In what circumstances can entry be made to a
residence?
The powers of entry and inspection conferred by this Part are not
exercisable in relation to that part of any premises being used for
residential purposes except:(a) with the permission of the occupier of that part of the premises,
or
(b) if entry is necessary for the purpose of inspecting work being
carried out under an approval, or
(c) under the authority conferred by a search
warrant.
201 Search warrants
(1) An authorised person may apply to an authorised officer if the
authorised person has reasonable grounds for believing that the provisions of
this Act or the regulations or the terms of an approval or order under this
Act have been or are being contravened in or on any
premises.
(2) An authorised officer to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a search
warrant authorising an authorised person named in the warrant:(a) to enter the premises, and
(b) to search the premises for evidence of a contravention of this Act
or the regulations or the terms of an approval or
order.
(3) Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies to
a search warrant issued under this section.
(4) Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act
2002, a police officer:(a) may accompany an authorised person executing a search warrant
issued under this section, and
(b) may take all reasonable steps to assist the authorised person in
the exercise of the person’s functions under this
section.
(5) In this section:authorised
officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act
2002.
202, 203 (Repealed)
Chapter 9 How are councils established?
Introduction. This Chapter contains provisions dealing separately with the
constitution of land as a local government area and the constitution of a
council to manage that area. It enables the making of changes to those areas
and to councils. It provides for the dissolution of councils and the
appointment of administrators.Each council is a statutory corporation. The councillors are the
governing body of the corporation and they have the responsibility of
directing and controlling the affairs of the council in accordance with this
Act.
The Chapter includes a statement of the role of the mayor and of a
councillor.
Provision is made for the payment of fees to the mayor and other
councillors. Payment is to be made in accordance with determinations of the
Local Government Remuneration Tribunal which is established by this Chapter.
Provision is also made for the payment of expenses and the provision of
facilities to the mayor and other councillors.
The Chapter also constitutes the Local Government Boundaries
Commission and provides for its functions.
Part 1 Areas
Division 1 How are areas constituted and
dissolved?
204 Constitution of areas
(1) The Governor may, by proclamation, constitute any part of New
South Wales as an area.
(2) The area is to have the boundaries determined by the Governor by
proclamation.
(3) An area must be a single area of contiguous
land.
205 Land taken to be included in an area
(1) The land and water between high-water mark and low-water mark on
the foreshores of an area is taken to be in the
area.
(2) The land and water enclosed by:(a) a straight line drawn between the low-water marks of consecutive
headlands to any body of water on the foreshores of an area,
and
(b) those foreshores,
is taken to be in the area.
(3) Land on the boundary of an area is taken to be in the area
if:(a) it is reclaimed from tidal waters, or
(b) it is on the foreshores of the area and beyond low-water
mark,
and it is privately owned or has a structure erected on
it.
(4) This section is subject to any proclamation made under this
Division.
206 Constitution of cities
The Governor may, by proclamation, constitute an area as a
city.
207 Names of areas
The Governor may, by proclamation, name or rename an
area.
208 Effect of changing name
When an area is constituted as a city or an area or ward is
renamed, a reference in an Act or instrument to the old name of the area, the
council concerned or the ward is taken to include a reference to the new name
of the area, council or ward.
209 (Repealed)
210 Division of areas into wards
(1) The council may divide its area into divisions, called
“wards”.
(2) The council may abolish all wards.
(3) The council may alter ward boundaries.
(4) The council may name or rename a ward.
(5) A council must not divide an area into wards or abolish all wards
unless it has obtained approval to do so at a constitutional
referendum.
(6) A by-election held after an alteration of ward boundaries and
before the next ordinary election is to be held as if the boundaries had not
been altered.
(7) The division of a council’s area into wards, or a change to
the boundaries of a ward, must not result in a variation of more than 10 per
cent between the number of electors in each ward in the
area.
210A Consultation, public notice and exhibition of proposals
regarding ward boundaries
(1) Before dividing a council’s area into wards or altering a
council’s ward boundaries, the council must:(a) consult the Electoral Commissioner and the Australian Statistician
to ensure that, as far as practicable, the proposed boundaries of its wards
correspond to the boundaries of appropriate districts (within the meaning of
the Parliamentary Electorates and Elections
Act 1912) and census districts, and to ensure that the
proposed boundaries comply with section 210 (7), and
(b) prepare and publicly exhibit a plan detailing the proposed
division or alteration (the ward boundary
plan).
(2) The council must give public notice of the following:(a) the place at which the ward boundary plan may be
inspected,
(b) the period for which the plan will be exhibited (being a period of
not less than 28 days),
(c) the period during which submissions regarding the ward boundary
plan may be made to the council (being a period of not less than 42 days after
the date on which the ward boundary plan is placed on public
exhibition).
(3) The council must, in accordance with its notice, publicly exhibit
the ward boundary plan together with any other matter that it considers
appropriate or necessary to better enable the plan and its implications to be
understood.
(4) Any person may make a submission to the council regarding the ward
boundary plan within the period referred to in subsection (2)
(c).
(5) The council must consider submissions made in accordance with this
section.
210B Approval to abolish all wards in council’s
area
(1) A council may resolve to make an application to the Minister to
approve the abolition of all wards of the council’s
area.
(2) The council must give not less than 42 days’ public notice
of its proposed resolution.
(3) After passing the resolution, the council must forward to the
Minister a copy of the resolution, a summary of any submissions received by it
and its comments concerning those submissions.
(4) The Minister may approve the application or may decline to approve
it.
(5) If the Minister approves the application, all the wards in the
council’s area are abolished with effect on and from the day appointed
for the next ordinary election of councillors after the application is
approved.
(6) Section 16 does not apply to a resolution of a council to make an
application to the Minister under this section.
(7) An application may be made under this section only within the
period of 5 months from the commencement of this
section.
(8) Nothing in this section prevents a council from making more than
one application under this section or from taking action under section 210 to
abolish all wards of the council’s area.
211 Ward boundaries
(1) The council of an area divided into wards must keep the ward
boundaries under review.
(2) If:(a) during a council’s term of office, the council becomes aware
that the number of electors in one ward in its area differs by more than 10
per cent from the number of electors in any other ward in its area,
and
(b) that difference remains at the end of the first year of the
following term of office of the council,
the council must, as soon as practicable, alter the ward boundaries in a
manner that will result in each ward containing a number of electors that does
not differ by more than 10 per cent from the number of electors in each other
ward in the area.
(3) Nothing in subsection (2) prevents a council that has become aware
of the discrepancy referred to in subsection (2) (a) from altering its ward
boundaries before the end of the first year of the following term of office of
the council.
212 Dissolution of areas
(1) The Governor may, by proclamation, dissolve the whole or part of
an area.
(2) The Minister may not recommend the making of a proclamation to
dissolve the whole or part of an area until after a public inquiry has been
held and the Minister has considered the report made as a consequence of the
inquiry.
213 Facilitating provisions of proclamations
(1) A proclamation of the Governor for the purposes of this Division
may include such provisions as are necessary or convenient for giving effect
to the proclamation, including provisions for or with respect to:• the transfer or apportionment of assets, rights and
liabilities
• the transfer of staff
• the application of regulations
• the alteration of ward boundaries
• the holding of elections
• the delivery or retention of records
• the termination, cessation, dissolution or abolition of anything
existing before the proclamation takes effect
• the preservation or continuance of anything existing before the
proclamation takes effect
• the making of appointments
• the inclusion or exclusion, as a constituent council of any
related county council, of the council of any area constituted or dissolved by
the proclamation.
Note. If a proclamation for the purposes of this Division transfers
staff members (other than senior staff) from the employment of one council to
another council, the provisions of Part 6 of Chapter 11 apply in relation to
the transferred staff members.
(2) Such a proclamation may:(a) apply generally or be limited in its application by reference to
specified exceptions or factors, or
(b) apply differently according to different factors of a specified
kind, or
(c) authorise any matter or thing to be from time to time determined,
applied or regulated by any specified person or
body,
or may do any combination of those things.
(3) In this section, related county
council, in relation to an area constituted or dissolved by a
proclamation of the Governor for the purposes of this Division, means a county
council that has an area of operations that includes the whole or any part of
the area so constituted or dissolved.
Division 2 What must be done before areas can be
constituted?
Note. This Division sets out the things that must be done before areas
can be constituted.Land may only be constituted as an area if the public has been
notified of the proposal to do so and the councils and electors concerned have
been given an opportunity to make representations concerning the
proposal.
It also provides for the Boundaries Commission to consider
proposals to constitute areas.
214 Exercise of functions under sec 204
A function under section 204 may be exercised only after a
proposal for the exercise of the function is dealt with under this
Division.
215 Who may initiate a proposal?
(1) A proposal may be made by the Minister or it may be made to the
Minister by a council affected by the proposal or by an appropriate minimum
number of electors.
(2) An appropriate minimum number of electors is:(a) if a proposal applies to the whole of an area or the proposal is
that part of an area be constituted as a new area—250 of the enrolled
electors for the existing area or 10 per cent of them, whichever is the
greater, or
(b) if a proposal applies only to part of an area—250 of the
enrolled electors for that part or 10 per cent of them, whichever is the
lesser.
216 Public notice to be given of a proposal
The Minister must give at least 28 days’ public notice of a
proposal that the Minister decides to proceed with.
217 Making of representations
(1) Within the period of public notice, representations concerning the
proposal may be made to the Minister by a council or elector affected by the
proposal.
(2) The Minister must consider all representations
made.
218 Referral of proposal for examination and
report
(1) If the Minister decides to continue with the proposal, the
Minister must refer it for examination and report to the Boundaries
Commission.
(2) The Minister may recommend to the Governor that the proposal be
implemented:(a) with such modifications as arise out of the Boundaries
Commission’s report, and
(b) with such other modifications as the Minister
determines,
but may not do so if of the opinion that the modifications constitute a
new proposal.
(3) The Minister may decline to recommend to the Governor that the
proposal be implemented.
Division 2A How are areas amalgamated or their boundaries
altered?
218A Amalgamation of areas
(1) The Governor may, by proclamation, amalgamate two or more areas
into one or more new areas.
(2) On the date specified in the proclamation as the date on which the
areas are to be amalgamated:(a) the areas are dissolved, and
(b) the new area or new areas are constituted, and
(c) subject to section 218C, the councillors of the former areas cease
to hold office.
(3) Divisions 1 and 2 apply to a new area constituted by a
proclamation under this section in the same way as they apply to an area
constituted by a proclamation under section 204.
(4) Section 212 (2) does not apply to the dissolution of a former area
by a proclamation under this section.
218B Alteration of boundaries of areas
The Governor may, by proclamation, alter the boundaries of one or
more areas.
218C Facilitating provisions of proclamations
(1) A proclamation of the Governor for the purposes of this Division
may include provisions of the same kind as are referred to in section
213.
(2) Such a proclamation may also include provisions for or with
respect to:(a) the appointment of administrators for any area constituted by the
proclamation, and
(b) the continuation in office, as councillors of any area constituted
by the proclamation, of any or all of the councillors of any area dissolved by
the proclamation.
Note. If a proclamation for the purposes of this Division transfers
staff members (other than senior staff) from the employment of one council to
another council, the provisions of Part 6 of Chapter 11 apply in relation to
the transferred staff members.
(3) Section 224 (1) does not apply to any councillors who continue in
office by virtue of such a proclamation.
218CA Maintenance of staff numbers in rural
centres
(1) This section applies to a council (the transferee
council):(a) that is constituted as a result of the amalgamation of two or more
areas, where the council of one of those areas (the previous
council) employed regular staff at a rural centre in the area of the
transferee council immediately before the amalgamation took effect,
or
(b) whose geographical area is increased as a result of the alteration
of the boundaries of two or more areas, where a council (the previous
council) whose geographical area is reduced as a result of the
alteration employed regular staff at a rural centre in the area of the
transferee council immediately before the alteration took
effect.
(2) The transferee council must ensure that the number of regular
staff of the council employed at the rural centre is, as far as is reasonably
practicable, maintained at not less than the same level of regular staff as
were employed by the previous council at the centre immediately before the
amalgamation or alteration of boundaries took
effect.
(3) Subsection (2) does not have effect, or ceases to have effect, in
such circumstances (if any) as are prescribed by the
regulations.
(4) In this section:regular
staff of a council means:
(a) staff appointed to a position within the organisational structure
of the council, otherwise than on a temporary basis, and
(b) casual staff who are engaged by the council on a regular and
systematic basis for a sequence of periods of employment during a period of at
least 6 months and who have a reasonable expectation of continuing employment
with the council,
but does not include senior staff.rural centre
has the meaning given by section 354B.
Division 2B What must be done before areas can be amalgamated
or their boundaries altered?
218D Exercise of functions under secs 218A and
218B
A function under section 218A or 218B may be exercised only after
a proposal for the exercise of the function is dealt with under this
Division.
218E Who may initiate a proposal?
(1) A proposal may be made by the Minister or it may be made to the
Minister by a council affected by the proposal or by an appropriate minimum
number of electors.
(2) An appropriate minimum number of electors is:(a) if a proposal applies to the whole of one or more areas, 250 of
the enrolled electors for each area or 10 per cent of them, whichever is the
greater, or
(b) if a proposal applies to part only of an area, 250 of the enrolled
electors for that part or 10 per cent of them, whichever is the
lesser.
218F Referral of proposal for examination and
report
(1) On making or receiving a proposal, the Minister must refer it for
examination and report to the Boundaries Commission or to the
Director-General.
(2) Sections 263, 264 and 265 apply to the examination of a proposal
by the Director-General in the same way as they apply to the examination of a
proposal by the Boundaries Commission.
(3) For the purpose of examining a joint proposal of 2 or more
councils for the amalgamation of two or more areas under section 218A, the
Boundaries Commission or Director-General, as the case requires, must seek the
views of electors of each of those areas:(a) by means of:(i) advertised public meetings, and
(ii) invitations for public submissions, and
(iii) postal surveys or opinion polls, in which reply-paid
questionnaires are distributed to all electors, or
(b) by means of formal polls.
(4) The period over which the views of electors are to be sought as
referred to in subsection (3) must be a period of at least 40
days.
(5) Part 3 of Chapter 4 applies to a formal poll taken by the
Boundaries Commission or Director-General in the same way as it applies to a
council poll referred to in that Part.
(6) If a proposal that is not supported by one or more of the councils
affected by it, or that is an amalgamation proposal, has been referred to the
Director-General under subsection (1):(a) the Director-General must furnish the Director-General’s
report to the Boundaries Commission for review and comment,
and
(b) the Boundaries Commission must review the report and send its
comments to the Minister.
(7) The Minister may recommend to the Governor that the proposal be
implemented:(a) with such modifications as arise out of:(i) the Boundaries Commission’s report, or
(ii) the Director-General’s report (and, if applicable, the
Boundaries Commission’s comments on that report),
and
(b) with such other modifications as the Minister
determines,
but may not do so if of the opinion that the modifications constitute a
new proposal.
(8) The Minister may decline to recommend to the Governor that the
proposal be implemented.
Division 2C
218G–218K(Repealed)
Part 2 Councils
Division 1 Constitution
219 Constitution of councils
A council is constituted by this Act for each
area.
220 Legal status of a council
(1) A council is a body politic of the State with perpetual succession
and the legal capacity and powers of an individual, both in and outside the
State.
(2) A council is not a body corporate (including a
corporation).
(3) A council does not have the status, privileges and immunities of
the Crown (including the State and the Government of the
State).
(4) A law of the State applies to and in respect of a council in the
same way as it applies to and in respect of a body corporate (including a
corporation).
221 What is a council’s name?
(1) The name of a council of an area other than a city is the
“Council of X” or the “X Council”, X being the name of
the council’s area.
(2) The name of a council of a city is the “Council of the City
of X” or the “X City Council”, X being the name of the
city.
222 Who comprise the governing body?
The elected representatives, called “councillors”,
comprise the governing body of the council.
223 What is the role of the governing body?
The role of the governing body is to direct and control the
affairs of the council in accordance with this Act.
224 How many councillors does a council have?
(1) A council must have at least 5 and not more than 15 councillors
(one of whom is the mayor).
(2) Not less than 12 months before the next ordinary election, the
council must determine the number, in accordance with subsection (1), of its
councillors for the following term of office.
(3) If the council proposes to change the number of councillors, it
must, before determining the number, obtain approval for the change at a
constitutional referendum.
224A Approval to reduce number of councillors
(1) A council may resolve to make an application to the Minister to
approve a decrease in the number of councillors within the limits referred to
in section 224 (1).
(2) The council must give not less than 42 days’ public notice
of its proposed resolution.
(3) After passing the resolution, the council must forward to the
Minister a copy of the resolution, a summary of any submissions received by it
and its comments concerning those submissions.
(4) The Minister may approve the application without amendment or may
decline to approve the application.
(5) If the Minister approves the application, the number of
councillors of the council is reduced to the number specified in the
application with effect on and from the day appointed for the next ordinary
election of councillors after the application is
approved.
(6) Section 16 does not apply to a resolution of a council to make an
application to the Minister under this section.
(7) An application may be made under this section after the
commencement of the Local Government
Amendment (Elections) Act 2011 but before the expiry of 5
months after that commencement.
(8) Nothing in this section prevents a council from making more than
one application under this section or from taking action under section 224 to
change the number of its councillors.
(9) A council for an area that is divided into wards may not make an
application under this section for a decrease in the number of councillors
that would result in the number of councillors for each ward being fewer than
3.
Division 2 The mayor
225 The mayor
An area must have a mayor who is elected in accordance with this
Division.
226 What is the role of the mayor?
The role of the mayor is:• to exercise, in cases of necessity, the policy-making functions of
the governing body of the council between meetings of the
council
• to exercise such other functions of the council as the council
determines
• to preside at meetings of the council
• to carry out the civic and ceremonial functions of the mayoral
office.
227 Who elects the mayor?
The mayor of an area is the person elected to the office of mayor
by:(a) the councillors from among their number, unless there is a
decision in force under this Division which provides for the election of the
mayor by the electors, or
(b) the electors, if such a decision is in
force.
Note. As to the election of the mayor, see also section
282.
228 How is it decided that the mayor be elected by the
electors?
(1) It may be decided at a constitutional referendum that the mayor be
elected by the electors.
(2) A decision that the mayor be elected by the electors takes effect
in relation to the next ordinary election after the decision is
made.
229 Can the decision be changed?
(1) A decision that the mayor be elected by the electors is rescinded
only if a constitutional referendum decides in favour of discontinuing that
means of election.
(2) The rescission takes effect in relation to the next ordinary
election after the rescission occurs.
230 For what period is the mayor elected?
(1) A mayor elected by the councillors holds the office of mayor for 1
year, subject to this Act.
(2) A mayor elected by the electors holds the office of mayor for 4
years, subject to this Act.
(3) The office of mayor:(a) commences on the day the person elected to the office is declared
to be so elected, and
(b) becomes vacant when the person’s successor is declared to be
elected to the office, or on the occurrence of a casual vacancy in the
office.
(4) A person elected to fill a casual vacancy in the office of mayor
holds the office for the balance of the predecessor’s
term.
231 Deputy mayor
(1) The councillors may elect a person from among their number to be
the deputy mayor.
(2) The person may be elected for the mayoral term or a shorter
term.
(3) The deputy mayor may exercise any function of the mayor at the
request of the mayor or if the mayor is prevented by illness, absence or
otherwise from exercising the function or if there is a casual vacancy in the
office of mayor.
(4) The councillors may elect a person from among their number to act
as deputy mayor if the deputy mayor is prevented by illness, absence or
otherwise from exercising a function under this section, or if no deputy mayor
has been elected.
Division 3 The councillors
232 What is the role of a councillor?
(1) The role of a councillor is, as a member of the governing body of
the council:• to provide a civic leadership role in guiding the development of
the community strategic plan for the area and to be responsible for monitoring
the implementation of the council’s delivery program
• to direct and control the affairs of the council in accordance
with this Act
• to participate in the optimum allocation of the council’s
resources for the benefit of the area
• to play a key role in the creation and review of the
council’s policies and objectives and criteria relating to the exercise
of the council’s regulatory functions
• to review the performance of the council and its delivery of
services, and the delivery program and revenue policies of the
council.
(2) The role of a councillor is, as an elected person:• to represent the interests of the residents and
ratepayers
• to provide leadership and guidance to the
community
• to facilitate communication between the community and the
council.
233 For what period is a councillor elected?
(1) A councillor (other than the mayor) holds office for 4 years,
subject to this Act.
(2) The office of councillor:(a) commences on the day the person elected to the office is declared
to be so elected, and
(b) becomes vacant on the day appointed for the next ordinary election
of councillors, or on the occurrence of a casual vacancy in the
office.
(3) A person elected to fill a casual vacancy in the office of
councillor holds the office for the balance of the predecessor’s
term.
234 When does a vacancy occur in a civic office?
(1) A civic office becomes vacant if the holder:(a) dies, or
(b) resigns the office by writing addressed to the general manager,
or
(c) is disqualified from holding civic office, or
(d) is absent from 3 consecutive ordinary meetings of the council
(unless the holder is absent because he or she has been suspended from office
under section 440I, 482 or 482A) without:(i) prior leave of the council, or
(ii) leave granted by the council at any of the meetings concerned,
or
(e) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her creditors
or makes an assignment of his or her remuneration for their benefit,
or
(f) becomes a mentally incapacitated person, or
(g) is dismissed from civic office, or
(h) ceases to hold the office for any other
reason.
Note. See section 275 for the circumstances in which a person is
disqualified from holding civic office.
(2) For the purposes of subsection (1) (d), a councillor applying for
a leave of absence from a meeting of a council does not need to make the
application in person and the council may grant such leave in the absence of
that councillor.
(3) If the holder of a civic office attends a council meeting (whether
or not an ordinary meeting) despite having been granted leave of absence, the
leave of absence is taken to have been rescinded as regards any future council
meeting.
(4) Subsection (3) does not prevent the council from granting further
leave of absence in respect of any future council
meeting.
Division 4 Local Government Remuneration Tribunal
235 Local Government Remuneration Tribunal
There is established by this Act a tribunal to be known as the
Local Government Remuneration Tribunal.
236 Assessors
(1) For the purposes of this Part, there are to be 2 assessors:(a) one of whom is to be the Director-General, and
(b) the other of whom is to be a person appointed by the Governor on
the nomination of the Minister, being a person who has, in the
Minister’s opinion, special knowledge of the system of local government
in New South Wales.
(2) The Remuneration Tribunal, in exercising the Remuneration
Tribunal’s functions is:(a) to be assisted by the assessors, and
(b) to take into consideration the views and recommendations tendered
by the assessors.
237 Provisions relating to the appointment, term of office
and remuneration of the Remuneration Tribunal and assessors
Schedule 1 has effect with respect to the Remuneration Tribunal
and the assessors.
238 Functions of the Remuneration Tribunal
(1) The Remuneration Tribunal has the functions conferred or imposed
on the Remuneration Tribunal by or under this Act.
(2) In addition, the Remuneration Tribunal has such functions as may
be conferred or imposed on the Remuneration Tribunal by the
Minister.
239 Categorisation of councils and mayoral offices
(1) The Remuneration Tribunal must, at least once every 3
years:(a) determine categories for councils and mayoral offices,
and
(b) place each council and mayoral office into one of the categories
it has determined.
(2) The determination of categories by the Remuneration Tribunal is
for the purpose of enabling the Remuneration Tribunal to determine the maximum
and minimum amounts of fees to be paid to mayors and councillors in each of
the categories so determined.
240 How are the categories to be determined?
(1) The Remuneration Tribunal is to determine categories for councils
and mayoral offices according to the following matters:• the size of areas
• the physical terrain of areas
• the population of areas and the distribution of the
population
• the nature and volume of business dealt with by each
council
• the nature and extent of the development of
areas
• the diversity of communities served
• the regional, national and international significance of the
council
• such matters as the Remuneration Tribunal considers relevant to
the provision of efficient and effective local government
• such other matters as may be prescribed by the
regulations.
(2) In the application of this section to county councils, the
categories of county councils are to be determined having regard also to the
functions of county councils.
241 Determination of fees
The Remuneration Tribunal must, not later than 1 May in each year,
determine, in each of the categories determined under section 239, the maximum
and minimum amounts of fees to be paid during the following year to
councillors (other than mayors) and mayors.
242 Special determinations
(1) The Minister may direct the Remuneration Tribunal to make a
determination as to whether, and (if so) how, a determination already made
should be altered in relation to such councillors or mayors as are specified
in the direction.
(2) Such a determination must be made before the date specified for
the purpose in the Minister’s direction.
(3) In making the determination, the Remuneration Tribunal is to take
into consideration such matters as are specified in the Minister’s
direction and such other matters as the Remuneration Tribunal thinks
fit.
242A Tribunal to give effect to declared government policy on
remuneration for public sector staff
(1) In making a determination, the Remuneration Tribunal is to give
effect to the same policies on increases in remuneration as those that the
Industrial Relations Commission is required to give effect to under section
146C of the Industrial Relations Act
1996 when making or varying awards or orders relating to the
conditions of employment of public sector
employees.
(2) The policies referred to in subsection (1) do not include any
policy that provides for increases in remuneration based on employee-related
savings.
243 Inquiries
(1) Before making a determination, the Remuneration Tribunal may make
such inquiry as the Remuneration Tribunal thinks
necessary.
(2) In exercising a function, the Remuneration Tribunal:(a) may obtain and assess information in such manner as the
Remuneration Tribunal thinks fit, and
(b) may receive written or oral submissions, and
(c) is not required to conduct any proceedings in a formal manner,
and
(d) is not bound by the rules of evidence.
244 Reports of the Remuneration Tribunal
(1) The Remuneration Tribunal must, within 7 days after making a
determination under section 239, make a report to the Minister of the
determination.
(2) The Remuneration Tribunal must, not later than 1 May in each year,
make a report to the Minister of the determination made under section
241.
(3) The Remuneration Tribunal must, within 7 days after making a
determination under section 242, make a report to the Minister of the
determination.
245 Publication and tabling of reports
(1) The report of a determination of the Remuneration Tribunal
must:(a) be published in the Gazette as soon as practicable after the
report is received by the Minister, and
(b) be laid before each House of Parliament within 14 sitting days of
that House after the day on which it is so
published.
(2) Failure to lay a report before each House of Parliament in
accordance with this section does not affect the validity of a determination,
but the report must nevertheless be laid before each
House.
246 Effect of determination
A determination of the Remuneration Tribunal may not be
challenged, reviewed, quashed or called into question before any court in any
legal proceedings, or restrained, removed or otherwise affected by proceedings
in the nature of prohibition, mandamus, certiorari or
otherwise.
247 Assistance for the Remuneration Tribunal
The Minister is to make available to the Remuneration Tribunal
such persons employed under Part 2 of the Public Sector Management Act 1988 as
may be necessary to assist the Remuneration Tribunal in the exercise of the
Remuneration Tribunal’s functions.
Division 5 What fees, expenses and facilities may be paid or
provided to councillors?
248 Fixing and payment of annual fees for
councillors
(1) A council must pay each councillor an annual
fee.
(2) A council may fix the annual fee and, if it does so, it must fix
the annual fee in accordance with the appropriate determination of the
Remuneration Tribunal.
(3) The annual fee so fixed must be the same for each
councillor.
(4) A council that does not fix the annual fee must pay the
appropriate minimum fee determined by the Remuneration
Tribunal.
248A Annual fees or other remuneration not to be paid during
period of suspension
A council must not at any time pay any fee or other remuneration,
to which a councillor would otherwise be entitled as the holder of a civic
office, in respect of any period during which:(a) the councillor is suspended from civic office under this Act,
or
(b) the councillor’s right to be paid any fee or other
remuneration is suspended under this Act,
unless another provision of this Act specifically authorises payment to
be made, or specifically permits a person to authorise payment to be made,
when the suspension is terminated.
249 Fixing and payment of annual fees for the
mayor
(1) A council must pay the mayor an annual
fee.
(2) The annual fee must be paid in addition to the fee paid to the
mayor as a councillor.
(3) A council may fix the annual fee and, if it does so, it must fix
the annual fee in accordance with the appropriate determination of the
Remuneration Tribunal.
(4) A council that does not fix the annual fee must pay the
appropriate minimum fee determined by the Remuneration
Tribunal.
(5) A council may pay the deputy mayor (if there is one) a fee
determined by the council for such time as the deputy mayor acts in the office
of the mayor. The amount of the fee so paid must be deducted from the
mayor’s annual fee.
250 At what intervals are fees to be paid?
Fees payable under this Division by a council are payable monthly
in arrears for each month (or part of a month) for which the councillor holds
office.
251 What is the consequence of paying fees?
(1) A person is not, for the purposes of any Act, taken to be an
employee of a council and is not disqualified from holding civic office merely
because the person is paid a fee under this
Division.
(2) A fee paid under this Division does not constitute salary for the
purposes of any Act.
252 Payment of expenses and provision of
facilities
(1) Within 5 months after the end of each year, a council must adopt a
policy concerning the payment of expenses incurred or to be incurred by, and
the provision of facilities to, the mayor, the deputy mayor (if there is one)
and the other councillors in relation to discharging the functions of civic
office.
(2) The policy may provide for fees payable under this Division to be
reduced by an amount representing the private benefit to the mayor or a
councillor of a facility provided by the council to the mayor or
councillor.
(3) A council must not pay any expenses incurred or to be incurred by,
or provide any facilities to, the mayor, the deputy mayor (if there is one) or
a councillor otherwise than in accordance with a policy under this
section.
(4) A council may from time to time amend a policy under this
section.
(5) A policy under this section must comply with the provisions of
this Act, the regulations and any relevant guidelines issued under section
23A.
253 Requirements before policy concerning expenses and
facilities can be adopted or amended
(1) A council must give public notice of its intention to adopt or
amend a policy for the payment of expenses or provision of facilities allowing
at least 28 days for the making of public
submissions.
(2) Before adopting or amending the policy, the council must consider
any submissions made within the time allowed for submissions and make any
appropriate changes to the draft policy or
amendment.
(3) Despite subsections (1) and (2), a council need not give public
notice of a proposed amendment to its policy for the payment of expenses or
provision of facilities if the council is of the opinion that the proposed
amendment is not substantial.
(4) Within 28 days after adopting a policy or making an amendment to a
policy for which public notice is required to be given under this section, a
council is to forward to the Director-General:(a) a copy of the policy or amendment together with details of all
submissions received in accordance with subsection (1),
and
(b) a statement setting out, for each submission, the council’s
response to the submission and the reasons for the council’s response,
and
(c) a copy of the notice given under subsection
(1).
(5) A council must comply with this section when proposing to adopt a
policy each year in accordance with section 252 (1) even if the council
proposes to adopt a policy that is the same as its existing
policy.
254 Decision to be made in open meeting
The council or a council committee all the members of which are
councillors must not close to the public that part of its meeting at which a
policy for the payment of expenses or provision of facilities is adopted or
amended, or at which any proposal concerning those matters is discussed or
considered.
254A Circumstances in which annual fees may be
withheld
(1) Despite this Division, a council may resolve that an annual fee
will not be paid to a councillor or that a councillor will be paid a reduced
annual fee determined by the council:(a) for any period of not more than 3 months for which the councillor
is absent, with or without leave, from an ordinary meeting or ordinary
meetings of the council, or
(b) in any other circumstances prescribed by the
regulations.
Note. Section 428 (2) (f) requires a council to include, in its annual
report:• the total amount of money expended during the year on mayoral fees
and councillor fees
• the council’s policy on the provision of facilities for, and
the payment of expenses to, councillors
• the total amount of money expended during the year on providing
those facilities and paying those expenses.
(2) Despite this Division, if a councillor is absent, with or without
leave of the council, from ordinary meetings of the council for any period of
more than 3 months, the council must not pay any annual fee, or part of an
annual fee, to that councillor that relates to the period of absence that is
in excess of 3 months.
Division 6 Appointment of administrator
255 Governor may dismiss mayor and councillors
(1) The Governor may, by proclamation, declare all civic offices in
relation to a council to be vacant if:(a) a public inquiry concerning the council has been held,
and
(b) after considering the results of the inquiry, the Minister has
recommended that the Governor make such a
declaration.
(2) The Governor may, by proclamation, declare all civic offices in
relation to a council to be vacant if the Independent Commission Against
Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act
1988, recommends that consideration be given to the making of
such a declaration because of systemic corruption within the
council.
(3) If the Independent Commission Against Corruption makes such a
recommendation, all civic offices in relation to the council may be declared
vacant under subsection (2) without the holding of a public or other inquiry
concerning the council. However, the making of such a recommendation does not
preclude the holding of a public or other inquiry.
256 Governor may appoint administrator or order fresh
election
(1) By the same proclamation under section 255 or by one or more
subsequent proclamations, the Governor is:(a) to appoint an administrator of the council for a specified term,
or
(b) to order the holding of a fresh council
election,
or both.
(2) The Governor may, by those or other proclamations, make such
further orders as the Minister recommends are necessary in the
circumstances.
257 Declaration of council as non-functioning
(1) An administrator may be appointed for an area by the Governor
without the necessity for a public inquiry under section 255 if the Governor
declares the council to be non-functioning because:(a) the requirements of this Act as to the making and levying of an
ordinary rate have not been followed, or
(b) the council has not exercised its functions for 6 months or more,
or
(c) there are not enough councillors for there to be a quorum at
council meetings.
(2) The Governor may, as an alternative to the appointment of an
administrator on the ground referred to in subsection (1) (c), appoint (or
authorise a special election to elect) councillors to fill all the vacancies
on the council or such number of those vacancies as will provide a quorum at
meetings.
258 The administrator
(1) When the administrator of a council takes office:(a) any persons holding civic office in relation to the council cease
to hold office, and
(b) the administrator has all the functions of the council until
immediately before the first meeting of the council held after the fresh
election.
(2) The administrator must be paid a salary from the council’s
funds determined by the Governor.
(3) The Governor may terminate the administrator’s appointment
at any time.
(4) The administrator ceases to hold office:(a) immediately before the first meeting of the council held after the
fresh election, or
(b) if the administrator’s appointment is earlier terminated by
the Governor.
259 Temporary exercise of the council’s
functions
(1) In this section, the transitional
period means the period between:(a) the appointment of an administrator of a council and the time at
which the administrator takes office, or
(b) the declaration of a council to be non-functioning and the time at
which the appointed or elected councillors for the area take office, if the
declaration provides for their appointment or election instead of the
appointment of an administrator.
(2) During the transitional period, the mayor, or the general manager
if there is no mayor, may temporarily exercise the following functions of the
council:(a) the continuation of works and services already
commenced,
(b) the payment of council employees,
(c) the payment of accounts due,
(d) the administration of the area without expenditure other than
those payments and payments approved by the
Minister.
Part 3 Local Government Boundaries Commission
260 Constitution of the Boundaries Commission
There is constituted by this Act a body corporate with the name of
Local Government Boundaries Commission.
261 Membership of Boundaries Commission
(1) The Boundaries Commission is to consist of 4 commissioners
appointed by the Governor.
(2) Of the commissioners:(a) one is to be a person nominated by the Minister,
and
(b) one is to be an officer of the Department nominated by the
Director-General, and
(c) 2 are to be persons appointed from the panel constituted under
section 262 (1).
(3) Despite subsection (2), the Boundaries Commission is taken to be
properly constituted when the commissioners referred to in paragraphs (a) and
(b) of that subsection have been appointed.
(4) The commissioner referred to in subsection (2) (a) is the
chairperson of the Boundaries Commission.
(5) Schedule 2 has effect with respect to the commissioners and the
procedure of the Boundaries Commission.
262 How is a panel to be constituted for the purposes of
making an appointment as a commissioner?
(1) There is to be a panel consisting of 8 persons, 4 of whom are
councillors nominated by the executive of the Local Government Association of
New South Wales and 4 of whom are councillors nominated by the executive of
the Shires Association of New South Wales.
(2) The nomination of members of the panel must be made in the manner
determined by the Minister. A person must not be nominated as a member of the
panel unless he or she has consented in writing to be
nominated.
(3) If an insufficient number of nominations have been made to the
panel to enable the Governor to appoint a commissioner or commissioners in
accordance with this Part, the Governor may appoint a person to be a
commissioner on the recommendation of the Minister.
263 Functions of the Boundaries Commission
(1) The Boundaries Commission is required to examine and report on any
matter with respect to the boundaries of areas and the areas of operation of
county councils which may be referred to it by the
Minister.
(2) For the purpose of exercising its functions, the Boundaries
Commission:(a) may hold an inquiry if the Minister so approves,
and
(b) must hold an inquiry if the Minister so
directs,
but may not hold an inquiry otherwise than as referred to in paragraph
(a) or (b).
(2A) Despite subsection (2), the Boundaries Commission must hold an
inquiry for the purpose of exercising its functions in relation to a proposal
for the amalgamation of two or more areas that has been referred to it in
accordance with section 218F.
(2B) Reasonable public notice must be given of the holding of an
inquiry under this section.
(3) When considering any matter referred to it that relates to the
boundaries of areas or the areas of operations of county councils, the
Boundaries Commission is required to have regard to the following
factors:(a) the financial advantages or disadvantages (including the economies
or diseconomies of scale) of any relevant proposal to the residents and
ratepayers of the areas concerned,
(b) the community of interest and geographic cohesion in the existing
areas and in any proposed new area,
(c) the existing historical and traditional values in the existing
areas and the impact of change on them,
(d) the attitude of the residents and ratepayers of the areas
concerned,
(e) the requirements of the area concerned in relation to elected
representation for residents and ratepayers at the local level, the desirable
and appropriate relationship between elected representatives and ratepayers
and residents and such other matters as it considers relevant in relation to
the past and future patterns of elected representation for that
area,
(e1) the impact of any relevant proposal on the ability of the councils
of the areas concerned to provide adequate, equitable and appropriate services
and facilities,
(e2) the impact of any relevant proposal on the employment of the staff
by the councils of the areas concerned,
(e3) the impact of any relevant proposal on rural communities in the
areas concerned,
(e4) in the case of a proposal for the amalgamation of two or more
areas, the desirability (or otherwise) of dividing the resulting area or areas
into wards,
(e5) in the case of a proposal for the amalgamation of two or more
areas, the need to ensure that the opinions of each of the diverse communities
of the resulting area or areas are effectively
represented,
(f) such other factors as it considers relevant to the provision of
efficient and effective local government in the existing and proposed new
areas.
(4) The Boundaries Commission is not entitled to examine or report on
any matter relating to the area of operations of a county council constituted
or proposed to be constituted for the supply of
electricity.
(5) The Boundaries Commission must allow members of the public to
attend any inquiry held by the Commission under this
section.
(6) The Boundaries Commission may continue with an examination or
inquiry even though a commissioner or acting commissioner replaces another
commissioner during the course of the examination or
inquiry.
(7) The Supreme Court may not make an order in the nature of
prohibition in respect of, or an order for removing to the Court or quashing,
any decision or proceeding made or conducted by the Boundaries Commission in
connection with the exercise of its functions.
264 Can a person be represented in proceedings before the
Boundaries Commission?
(1) In proceedings before the Boundaries Commission, a person is not
entitled to be represented:(a) by an Australian lawyer or by a person qualified for admission as
an Australian lawyer, or
(b) by any person acting for a fee or
reward.
(2) However, this section does not prevent:(a) an employee of a person from representing the person before the
Boundaries Commission if the employee is not a person referred to in
subsection (1) (a), or
(b) a person who is the mayor of an area or the chairperson of a
county council from appearing in that capacity in proceedings before that
Commission, or
(c) a person referred to in subsection (1) (a) from preparing any
documents or submissions or tendering any legal advice in connection with any
proceedings before that Commission.
265 Boundaries Commission may conduct survey or
poll
(1) To assist it in determining the attitude of the residents and
ratepayers of an area or areas for the purposes of section 263 (3) (d), the
Boundaries Commission may conduct (in such manner as it thinks appropriate) an
opinion survey or poll of the residents and
ratepayers.
(2) The residents and ratepayers of the area or areas concerned may
participate in any such opinion survey or poll but are not required to do
so.
(3) The Boundaries Commission may request the Electoral Commissioner,
a council or any other person or organisation to conduct any such opinion
survey or poll.
Chapter 10 How are people elected to civic office?
Introduction. This Chapter deals with the election of persons to civic office.
Those qualified for civic office are elected for 4-year terms under a system
which is preferential (wherever 1 position must be filled) and proportional
(wherever 2 or more positions must be filled). Voting is compulsory for
residents but optional for non-resident ratepayers, occupiers and ratepaying
lessees. Elections are conducted under the supervision of the general manager
of the council or the Electoral Commissioner.When an area is not divided into wards, councillors are elected by
the area. When it is divided, councillors may be elected by wards (or, if so
decided at a referendum, by wards and area).
The mayor may be popularly elected or elected by the councillors
from among their number. The choice of method depends on a constitutional
referendum as referred to in sections 228 and 229. A popularly-elected mayor
holds office for 4 years and is a councillor by virtue of being mayor. A mayor
elected by the councillors holds office for 1 year. In each case, the mayor
votes as mayor, not as a councillor, at council meetings. (See Chapter
9.)
Part 1 Who may vote?
266 Who has the right to be enrolled as an
elector?
(1) A person who is entitled to vote at an election of members of the
Legislative Assembly or an election of members of the Commonwealth House of
Representatives is entitled to be enrolled as an elector for a ward if:(a) he or she is a resident of the ward, or
(b) he or she is not a resident of the ward but is an owner of
rateable land in the ward, or
(c) he or she is an occupier, or ratepaying lessee, of rateable land
in a ward.
(2) A person who is disqualified by section 25 of the Parliamentary Electorates and Elections Act
1912 from having his or her name placed or retained on a roll
under that Act is subject to the same disqualification in relation to a roll
under this Act.
267 Who has the right to vote?
(1) A person whose name is on the roll kept under Division 2 of Part 6
for a ward is entitled to vote:(a) at an election of councillors for the ward,
and
(b) at an election of the mayor by all the electors of the
area.
(2) A person who changes his or her name from that on the roll may,
until the roll is corrected, vote under the enrolled
name.
(3) The right of an enrolled person to vote at an election is not
affected by:(a) a change of residence within a ward or within an area that is not
divided into wards, or
(b) a change in the qualification that entitles an enrolled person to
vote.
(4) A person who:(a) is qualified in respect of more than one parcel of land to be
enrolled for a ward, and
(b) is enrolled in respect of only one of the parcels,
and
(c) ceases to be qualified in respect of that
parcel,
is not disqualified from voting at an election held while the person is
enrolled in respect of that parcel if the returning officer is satisfied that
the person is then qualified in respect of another of the
parcels.
(5) This section does not confer a right to vote at an election on a
person who by or under this Act is disqualified from voting, or is not
qualified to vote, at the election.
268 One vote per elector
Nothing in this Chapter entitles a person to more than one vote in
one area in an election.Note. A person may not exercise more than one vote in any one area even
if:• the person is entitled to be enrolled as an elector for more than
one ward in the area; or the person’s entitlement is based on more than
one of the criteria in section 266 (1) (a), (b) and (c),
or
• the person’s entitlement is based on the ownership or
occupation of more than one parcel of land in the
area.
269 Who is a “resident” for the purposes of this
Part?
(1) For the purposes of this Part, a person is a resident of a ward
if:(a) the person is, within the meaning of the Parliamentary Electorates and Elections Act
1912, enrolled on the roll for an electoral district,
and
(b) the person’s place of living as described on that roll is in
the ward or (in the case of a person whose place of living is not described on
that roll) the person’s place of living is in the
ward.
(2) (Repealed)
(3) In this section, place of living
includes the place of residence to which a person temporarily residing
elsewhere intends to return in order to continue living
there.
270 Who is an “owner of rateable land” for the
purposes of this Part?
(1) For the purposes of this Part, a person is the owner of rateable
land if:(a) the person is not a corporation, is the sole owner of the rateable
land and does not own it as trustee, or
(b) the person is not a corporation, is a joint or several owner of
the rateable land and is nominated in writing as an elector by the only other
owner of the land, or by a majority of all the owners of the land,
or
(c) the person is not a corporation, is not a nominee under paragraph
(b) and is nominated in writing as an elector by a corporation which is the
owner, or by trustees who are the owners, of the land, or
(d) the person is a lessee of the land from the Crown and the land is
rateable Crown land.
(2) Land is not rateable land for the purposes of this Part if it is a
lot in a strata plan that is registered under the Strata Schemes (Freehold Development) Act
1973 or the Strata Schemes
(Leasehold Development) Act 1986 and is provided only for the
purpose of parking a motor vehicle.
(3) If there is more than one person who (by virtue of subsection (1))
is the owner of the same parcel of rateable land, only one of the persons is
entitled to be enrolled as an elector for a ward.
(4) If a corporation or trustees own more than one parcel of land in
an area, or if joint or several owners of one parcel of land in an area are
also joint or several owners of any other parcel of land in the area, it or
they can nominate a person as the owner of rateable land only in respect of
one of those parcels.
(5) A nomination under this section is to be lodged with the general
manager.
271 Who is an “occupier” or “ratepaying
lessee” for the purposes of this Part?
(1) For the purposes of this Part, a person is an occupier of rateable
land if the person has a legally enforceable right to continuous occupation of
rateable land (jointly or severally, but not as owner or ratepaying lessee)
for not less than 3 years following the relevant
date.
(2) If there is more than one such occupier of the same parcel of
rateable land, only one of them is entitled to be enrolled as an elector for a
ward.
(2A) If a corporation or trustees is or are occupiers of more than one
parcel of land in an area, or if joint or several occupiers of one parcel of
land in an area are also joint or several occupiers of any other parcel of
land in the area, it or they can nominate a person as the occupier of rateable
land only in respect of one of those parcels.
(3) For the purposes of this Part, a person is a ratepaying lessee of
rateable land if the person is jointly or severally liable, under a lease in
writing or other document of title relating to the land, to pay to any person
the whole or any part of any rates that may, during the 3 years following the
relevant date, be made or levied in respect of the
land.
(4) If there is more than one such ratepaying lessee of the same
parcel of rateable land, only one of them is entitled to be enrolled as an
elector for a ward.
(4A) If a corporation or trustees is or are ratepaying lessees of more
than one parcel of land in an area, or if joint or several ratepaying lessees
of one parcel of land in an area are also joint or several ratepaying lessees
of any other parcel of land in the area, it or they can nominate a person as
the ratepaying lessee of rateable land only in respect of one of those
parcels.
(5) The relevant date for the
purposes of this section is:(a) the date on which the claim for enrolment is made, if the claim is
for inclusion in the roll of occupiers and ratepaying lessees,
or
(b) the closing date for the election referred to in Part 4, if the
claim is for the purpose of voting in the election.
272 Competing claimants
(1) If two or more persons apply to be enrolled as an elector for a
ward as owners of the same parcel of rateable land, and those persons do not
nominate one of their number to be so enrolled, the general manager may do so
instead.
(2) Likewise, if two or more persons apply to be enrolled as an
elector for a ward as occupiers, or as ratepaying lessees, or as occupier and
ratepaying lessee, of the same parcel of land, and those persons do not
nominate one of their number to be so enrolled, the general manager may do so
instead.
273 Application of Part to area not divided into
wards
If an area is not divided into wards, this Part applies to the
area in the same way as it applies to a ward.
Part 2 Who may be elected?
274 What are the qualifications for civic office?
A person is qualified to hold civic office if:(a) the person is entitled to be enrolled as an elector,
and
(b) the person is not disqualified from holding civic office by this
Act, and
(c) the person is not prevented from being elected to civic office by
section 276 (2).
275 Who is disqualified from holding civic office?
(1) A person is disqualified from holding civic office:(a) while disqualified from being an elector, or
(a1) while a member of the Parliament of New South Wales, except as
provided by subsections (5) and (7), or
(b) while a judge of any court of the State or the Commonwealth,
or
(c) while serving a sentence (including a sentence the subject of an
intensive correction order) for a serious indictable offence or any other
offence, except a sentence imposed for a failure to pay a fine,
or
(d) if he or she is while holding that office, or has been within 2
years before nomination for election, election or appointment to the office,
convicted of an offence under the regulations made for the purposes of section
748 (3), or
(e) if he or she is while holding that office, or has been within 5
years before nomination for election, election or appointment to the office,
convicted of an offence referred to in Part 4 of the Crimes Act 1900 (Offences relating
to property), or
(f) while a surcharge, payable by the person under Part 5 of Chapter
13 and not paid within 6 months after it became payable, remains unpaid,
or
(g) while disqualified from holding a civic office under a provision
of this Act or Part 4A of the Crimes Act
1900 (Corruptly receiving commissions and other corrupt
practices), or
(h) while disqualified from managing a corporation under Part 2D.6 of
the Corporations Act 2001 of the
Commonwealth.
(2) A person is disqualified from holding civic office on a council if
he or she is an employee of the council or holds an office or place of profit
under the council.
(3) A person is not disqualified from holding a civic office only
because, while holding the civic office, the person ceases to be a resident in
the area, to own property in the area or to be an occupier or ratepaying
lessee of rateable land in the area.
(4) A person is taken not to be disqualified from holding civic office
if the Administrative Decisions Tribunal, in proceedings under section 329,
has refused to order the dismissal of the person in circumstances to which
subsection (4) of that section applies.
(5) If:(a) on the commencement of this subsection, a member of the Parliament
of New South Wales is a councillor or mayor, or
(b) after the commencement of this subsection, a councillor or mayor
becomes a member of the Parliament of New South
Wales,
the person is not disqualified from holding civic office because of
subsection (1) (a1) for the balance of the person’s term of office as a
councillor or for the period of 2 years (whichever is the shorter
period).
(6) Subsection (5) does not apply where a councillor or mayor becomes
a member of the Parliament of New South Wales after the commencement of that
subsection and within 12 months after last ceasing to be a member of that
Parliament.
(7) Despite anything to the contrary in this Chapter, a member of the
Parliament of New South Wales is not disqualified because of subsection (1)
(a1) from being nominated for election or being elected to a civic office. If
elected, the person is disqualified from holding that civic office
unless:(a) the person has ceased to be a member of that Parliament before the
first meeting of the council concerned after the election,
or
(b) it is an election as mayor by the councillors during the period
that the person is not disqualified by the operation of subsection
(5).
Note. If a person while holding civic office becomes subject to
disqualification under this section, the office becomes vacant under section
234.
276 What is the effect of disqualification?
(1) A person who is disqualified from holding civic office may not be
elected or appointed to a civic office and may not hold, or act in, a civic
office.
(2) A person who vacates the office of councillor by resignation or
disqualification may not be elected to a civic office in the same area (and
may not hold, or act in, a civic office in the same area) until:(a) if the person is not disqualified—the first anniversary of
the vacation of office, or the next ordinary election for the area (whichever
occurs first), or
(b) if the person is disqualified—the first ordinary election
after the person ceases to be disqualified.
(3) A person convicted of an offence under Part 6 of Chapter 16 for
acting in a civic office while disqualified under section 275:(a) is disqualified from holding civic office for 7 years from the
time of conviction, unless the court determines a shorter period,
and
(b) is not entitled to receive or recover from the council any money
relating to the civic office in respect of the period in which the person is
disqualified.
(4) The council may, within 2 years after the person so convicted
receives money from the council relating to the civic office in respect of the
period in which the person is disqualified, recover the money from the person
as a debt.
277 May the holder of a civic office be
re-elected?
The holder of a civic office is eligible for re-election, subject
to this Act.
Part 3 What is the system of election?
278 Election of councillors for an area not divided into
wards
The councillors for an area that is not divided into wards are to
be elected by an electorate comprising all the electors for the
area.
279 Alternative methods for election of councillors for an
area divided into wards
(1) The councillors for an area that is divided into wards are to be
elected in accordance with either section 280 or
281.
(2) The method of election under section 280 (method 1) is to apply
unless a decision made at a constitutional referendum is in force
which:(a) requires the method of election under section 281 (method 2) to
apply, and
(b) specifies the number of councillors each of whom is to be elected
by an electorate comprising all the electors for a ward and the number of
councillors (if any) each of whom is to be elected by an electorate comprising
all the electors for the area.
280 Ward election of councillors—method 1
(1) Each councillor for an area that is divided into wards may be
elected by an electorate comprising all the electors for a
ward.
(2) The same number of councillors is to be elected for each ward. The
mayor is to be excluded when determining that number if the mayor is to be
elected by all the electors for the area.
(3) The same person is not to be a candidate for election as a
councillor by the electors for more than one ward, unless the election is for
the mayor as such.
281 Election of councillors partly by wards, partly by
area—method 2
(1) The councillors for an area that is divided into wards may be
elected:(a) as to some of them—each by an electorate comprising all the
electors for a ward, and
(b) as to the others—by an electorate comprising all the
electors for the area.
(2) The same number of councillors is to be elected for each ward. The
mayor is to be excluded when determining that number if the mayor is to be
elected by all the electors for the area.
(3) If a person is a candidate for election as a councillor by the
electors for a ward, the person must not at the same time be a candidate for
election as a councillor by the electors for another ward or a candidate for
election as a councillor by all the electors for the area, unless the election
is for the mayor as such.
282 Election of mayor
(1) The mayor of an area who is to be elected by the electors is to be
elected by an electorate comprising all the electors for the area, even if the
area is divided into wards.
(2) The mayor of an area who is to be elected by the councillors for
the area is to be elected by the councillors from among their
number.
(3) A mayor elected for an area is one of the councillors of the
council for the area.
283 Double candidature
(1) A person may be a candidate for election as mayor and a candidate
for election as a councillor at the same time.
(2) If a person is elected by the electors as mayor and the person is
also a candidate for election as a councillor, the votes cast for the person
as a councillor are not to be counted for that person but are to be
distributed as prescribed by the regulations.
(3) (Repealed)
284 Voting system for election of the mayor by all the
electors of the area
The voting system in a contested election of the mayor by all the
electors of the area is to be optional preferential.
285 Voting system for election of councillors
The voting system in a contested election of a councillor or
councillors is to be:(a) optional preferential, if only one councillor is to be elected,
or
(b) proportional, if 2 or more councillors are to be
elected.
286 Is voting compulsory?
Whichever voting system applies, electors on the residential roll
must vote at a contested election unless exempt from voting under this Act.
Electors on the non-residential roll or the roll of occupiers and ratepaying
lessees may vote, but are not required to vote.
Part 4 When are elections held?
287 When is an ordinary election of councillors
held?
(1) An ordinary election of the councillors for an area is to be held
on the second Saturday of September 2008 and on the second Saturday of
September in every fourth year after 2008.
(2) An election of the councillors for an area is to be held on a
Saturday proclaimed for the purpose if:(a) the area is constituted after the commencement of this Part,
or
(b) all civic offices in relation to the council of the area are
declared to be vacant under section 255, or
(c) the council is declared to be non-functioning under section
257.
288 Delayed elections of councillors
(1) If the Minister is of the opinion that it would be impracticable
or inconvenient to hold an election as provided by section 287, the Minister
may, by order published in the Gazette, appoint a subsequent Saturday for the
election.
(2) The subsequent Saturday must not be more than 28 days later than
the day when the election should have been held.
(3) If a day is appointed under this section for an election, the
retiring councillors continue in office until the election is held and, if a
retiring councillor resigns in the meantime, his or her office is vacant until
the election is held.
289 When is an election of a mayor by the electors to be
held?
(1) The election of a mayor by the electors for an area is to be held
(unless its purpose is the filling of a casual vacancy):(a) on the day on which the election of the councillors for the area
is held, or
(b) if the election of the councillors is uncontested, on the day on
which the election of the councillors would have been held if it had been
contested.
(2) If a mayor of an area is to be elected by the electors on the day
on which a contested election of councillors for the area is to be held and
the election of the councillors is delayed for any reason, the election of the
mayor is also delayed but must be held on the same day as the delayed election
of the councillors.
290 When is an election of a mayor by the councillors to be
held?
(1) The election of the mayor by the councillors is to be held:(a) if it is the first election after an ordinary election of
councillors—within 3 weeks after the ordinary election,
or
(b) if it is not that first election or an election to fill a casual
vacancy—during the month of September, or
(c) if it is the first election after the constitution of an
area—within 14 days after the appointment of a provisional council or
the first election of the council if a provisional council is not appointed,
or
(d) if the relevant council is a non-functioning council, or a council
of which all civic offices have been declared vacant, and the election is the
first to be held after the appointment or election of the
councillors—within 14 days after the appointment or election of the
councillors.
(2) If the councillors fail to elect a mayor as required by this
section, the Governor may appoint one of the councillors as the
mayor.
(3) For the purposes of this section, an election of councillors does
not conclude until the declaration of election of all the councillors of the
council concerned.
Note. The filling of a casual vacancy in the office of a mayor elected
by the councillors is dealt with in section 295.
Part 5 How are casual vacancies filled?
291 By-elections
If a casual vacancy occurs in a civic office, the office is to be
filled by a by-election, subject to this Part.Note. The circumstances in which casual vacancies occur are specified in
Chapter 9.
292 When is a by-election to be held?
A by-election to fill a casual vacancy in the office of a
councillor or a mayor elected by the electors of an area is to be held on a
Saturday that:(a) falls not later than 3 months after the vacancy occurs,
and
(b) is fixed by the general manager (in relation to an election
administered by the general manager) or the Electoral Commissioner (in
relation to an election administered by the Electoral
Commissioner).
293 Delayed by-elections
(1) If the Minister is of the opinion that it would be impractical or
inconvenient to hold a by-election as provided by section 292, the Minister
may, by order published in the Gazette, appoint a subsequent Saturday for the
by-election.
(2) The subsequent Saturday must not be more than 28 days later than
the day when the by-election should have been held.
294 Dispensing with by-elections
(1) This section applies if a casual vacancy occurs in the office of a
councillor, including a mayor elected by the electors of an area, within 18
months before the date specified for the next ordinary election of the
councillors for the area.
(2) If such a casual vacancy occurs in the office of a councillor (but
not the office of a mayor elected by the electors), the Minister may, on the
application of the council:(a) order that the vacancy not be filled, or
(b) order the holding on a stated day of a by-election to fill the
vacancy and revoke any earlier order made under paragraph
(a).
(3) If such a casual vacancy occurs in the office of a mayor elected
by the electors, the casual vacancy is to be filled by the Governor appointing
to the vacant office a councillor nominated by the
council.
(4) If the council does not nominate a councillor for the purposes of
subsection (3), the Governor may appoint one of the councillors to the vacant
office.
294A Casual vacancy not to be filled where councillor numbers
reduced
(1) A casual vacancy in the office of a councillor (but not a mayor
elected by the electors) is not to be filled if the Minister has approved an
application under section 224A to reduce the number of councillors but the
reduction has not yet taken effect.
(2) However, subsection (1) does not authorise a vacancy to remain
unfilled if the vacancy will result in the council having less councillors
than the reduced number approved by the Minister under section
224A.
(3) Subsection (1) applies to a casual vacancy whether occurring
before or after the commencement of this section or before or after the
approval of the relevant application under section
224A.
294B Casual vacancy not to be filled where councillor numbers
reduced—approved by constitutional referendum
(1) Despite section 17 (2), a casual vacancy in the office of a
councillor (but not a mayor elected by the electors) is not to be filled if a
constitutional referendum has approved a reduction in the number of
councillors but the reduction has not yet taken
effect.
(2) However, subsection (1) does not authorise a vacancy to remain
unfilled if the vacancy will result in the council having less councillors
than the reduced number approved by the constitutional
referendum.
(3) Subsection (1) applies to a casual vacancy whether occurring
before or after the commencement of this section or before or after the
constitutional referendum.
295 Casual vacancy in office of mayor elected by the
councillors
(1) If a casual vacancy occurs in the office of a mayor elected by the
councillors, the vacancy is to be filled at a meeting of the council to be
held within 14 days after the occurrence of the
vacancy.
(2) If the councillors fail to elect a mayor as required by this
section, the Governor may appoint one of the councillors as the
mayor.
Part 6 How are elections conducted?
Division 1 Administration of elections
296 Elections to be administered by general manager of
council or Electoral Commissioner
(1) Elections for the purposes of this Chapter are to be administered
by the general manager of the council concerned.Note. Section 18 provides that certain provisions of this Act (relating
to the conduct of elections) apply to council polls and constitutional
referendums, with such modifications as may be necessary, in the same way as
they apply to elections.
(2) Despite subsection (1), a council may resolve that the council is
to enter into a contract or make arrangements with the Electoral Commissioner
for the Electoral Commissioner to administer all elections for the council for
the purposes of this Chapter.
(3) Such a resolution may only be made within 12 months after an
ordinary election of councillors for the council’s
area.
(4) If such a contract is entered into or such arrangements made, the
Electoral Commissioner is to administer all the elections of the council until
the conclusion of the following ordinary election for
councillors.
(5) In this section, election does not
include an election of the mayor or a deputy mayor by the
councillors.
296A Elections administered by a general manager
(1) This section applies to an election administered by the general
manager of a council.
(2) The general manager is to appoint a returning officer and a
substitute returning officer for the election. In the absence of the returning
officer, the substitute returning officer is to exercise the functions of the
returning officer.
(3) The returning officer is to appoint one or more electoral
officials.
(4) An employee of a council for an area cannot be appointed as a
returning officer or substitute returning officer for that area. However, an
electoral official may be an employee of the
council.
(5) A general manager cannot be appointed as a returning officer,
substitute returning officer or electoral official for any
area.
(6) For the purpose of conducting an election, the returning officer
and substitute returning officer for an area are entitled to access to any
relevant records of the council for the area.
(7) For the purpose of administering an election, the general manager
is to:(a) appoint the polling places, and
(b) determine the fees payable to the returning officer, substitute
returning officer and electoral officials.
(8) For the purpose of conducting an election, the returning officer
is to determine any matter not provided for by this Act or the
regulations.
(9) Expenses incurred by the returning officer, substitute returning
officer and electoral officials in connection with an election are to be met
by the council.
(10) The returning officer and the substitute returning officer must
not vote at any election that they are conducting.
296B Elections administered by the Electoral
Commissioner
(1) This section applies to an election administered by the Electoral
Commissioner.
(2) The Electoral Commissioner is to appoint a returning officer and a
substitute returning officer for each area. The returning officer is to
conduct elections on behalf of, and under the direction of, the Electoral
Commissioner. In the absence of the returning officer, the substitute
returning officer is to exercise the functions of the returning
officer.
(3) The returning officer is to appoint one or more electoral
officials.
(4) An employee of a council for an area cannot be appointed as a
returning officer or substitute returning officer for that area. However, an
electoral official may be an employee of the
council.
(5) For the purpose of conducting an election, the returning officer
and substitute returning officer for an area are entitled to access to any
relevant records of the council for the area.
(6) For the purpose of conducting an election, the Electoral
Commissioner is to:(a) appoint the polling places, and
(b) determine the fees payable to the returning officer, substitute
returning officer and electoral officials, and
(c) determine any matter not provided for by this Act or the
regulations.
(7) The Electoral Commissioner, the returning officer and the
substitute returning officer must not vote at any election that they are
conducting.
297 Delegation of functions by the Electoral
Commissioner
The Electoral Commissioner may delegate to a person any of the
Electoral Commissioner’s functions under this Act, other than this power
of delegation.
Division 2 Electoral rolls
298 Residential roll
(1) The Electoral Commissioner is to keep a roll for each area of
persons who, in the opinion of the Electoral Commissioner, are entitled, in
accordance with Part 1, to be enrolled as electors because they are residents
of the area.
(2) The Electoral Commissioner may use the roll used for elections of
the Legislative Assembly or for Commonwealth elections as a basis for the
residential roll.
(3) (Repealed)
299 Non-residential roll
(1) Not later than the closing date for an election, the general
manager is to prepare a roll of non-resident owners of rateable land for
confirmation as the roll of non-resident owners of rateable land within the
area.
(2) The roll of non-resident owners of rateable land lapses after the
election for which it is prepared, and it consists only of the names of those
non-resident owners of rateable land who have applied for the inclusion of
their names for the purposes of the election for which it is being
prepared.
(3) The general manager (in relation to an election administered by
the general manager) is to confirm as the roll of non-resident owners of
rateable land for the election the roll referred to in subsection (1) if, in
the general manager’s opinion, the roll contains the names of the
persons who on the closing date are qualified for inclusion in the roll of
non-resident owners of rateable land.
(4) The Electoral Commissioner (in relation to an election
administered by the Electoral Commissioner) is to confirm as the roll of
non-resident owners of rateable land for the election a roll certified by the
general manager as being, in the general manager’s opinion, a roll of
the persons who on the closing date are qualified for inclusion in the roll of
non-resident owners of rateable land.
300 Roll of occupiers and ratepaying lessees
(1) Not later than the closing date for an election, the general
manager is to prepare the roll of occupiers and ratepaying lessees for
confirmation as the roll of occupiers (of land within the area) and ratepaying
lessees (of rateable land within the area) for the
election.
(2) The roll of occupiers and ratepaying lessees lapses after the
election for which it is prepared, and it consists only of the names of those
occupiers and ratepaying lessees who have applied for the inclusion of their
names for the purpose of the election for which it is being
prepared.
(3) The general manager (in relation to an election administered by
the general manager) is to confirm as the roll of occupiers and ratepaying
lessees for the election the roll referred to in subsection (1) if, in the
general manager’s opinion, the roll contains the names of the persons
who on the closing date are qualified for inclusion in the roll of occupiers
and ratepaying lessees.
(4) The Electoral Commissioner (in relation to an election
administered by the Electoral Commissioner) is to confirm as the roll of
occupiers and ratepaying lessees for the election a roll certified by the
general manager as being, in the general manager’s opinion, a roll of
the persons who on the closing date are qualified for inclusion in the roll of
occupiers and ratepaying lessees.
301 Roll of electors
(1) The roll of electors for an area is a composite roll, consisting
of the residential roll kept by the Electoral Commissioner under section 298
for the area, the non-residential roll prepared and confirmed under section
299 for the area, and the roll of occupiers and ratepaying lessees prepared
and confirmed under section 300 for the area.
(2) For each election, an authorised copy of the roll of electors is
to be compiled in accordance with this Division.
(3) If an area is divided into wards, the authorised copy of the roll
of electors is to be prepared separately for each ward or, if the authorised
copy of the roll is for a by-election to fill a casual vacancy, only for the
ward in which the by-election is to be held.
(4) An authorised
copy of the roll referred to in subsections (2) and (3) is a printed
or electronic copy of the roll of the electors for the area or ward concerned
as at the closing date for the election.
302 Public inspection of roll of electors
(1) The Electoral Commissioner is to make the latest copy of the
residential roll available for public inspection at any reasonable time during
office hours at the office of the Electoral Commissioner and at any other
place determined by the Electoral Commissioner.
(2) The general manager is to make the latest copy of the
non-residential roll and of the roll of occupiers and ratepaying lessees (once
it is prepared) available for public inspection at any reasonable time during
office hours at the office of the council.
303 Making of claims for inclusion in the roll
(1) A person may lodge with the Electoral Commissioner (in the case of
the residential roll) or the general manager (in the case of another
roll):(a) a claim for the inclusion of his or her name in the roll or for
the amendment of any particulars entered in the roll against the name,
or
(b) an objection to the inclusion in the roll of his or her name or
the name of another person, or
(c) an objection to the inclusion in the roll of specified particulars
entered against his or her name or the name of another
person.
(2) Within 7 days after the lodging of a claim for inclusion in, or of
an objection to an entry in, a roll, the Electoral Commissioner or general
manager:(a) is to decide whether the claim or objection is to be allowed or
disallowed, and
(b) as soon as practicable, is to make such entries in, or alterations
to, the roll as give effect to the decision, and
(c) is to serve notice of the decision on the claimant or objector
and, in the case of an objection, on any other person to whom the objection
relates.
(3) A person dissatisfied with the decision of the Electoral
Commissioner or general manager may apply to the Administrative Decisions
Tribunal for a review of the decision.
(4) The Electoral Commissioner or general manager is to make as soon
as practicable such entries in the appropriate roll as are necessary to give
effect to the decision on an application to the Administrative Decisions
Tribunal.
(5) Despite this section, the non-residential roll and the roll of
occupiers and ratepaying lessees are not to be altered between the closing
date for an election and the end of polling day.
304 Enrolment if qualified in more than one
respect
(1) A person may not, in respect of the same ward, be enrolled more
than once in a roll of electors.
(2) A person who is qualified for enrolment in respect of more than
one ward of an area may be enrolled only in respect of the ward for which the
person is qualified as a resident or, if the person is not so
qualified:(a) the ward specified in a notice given by the person to the general
manager before the closing date for the election, or
(b) if no such notice is given, a ward chosen by the general
manager.
305 Provisional voting
The regulations may prescribe circumstances in which a person is
to be permitted to vote at an election under this Act where:(a) the person is not enrolled for the area or ward concerned, but
claims to be entitled to be enrolled on the residential roll for that area,
or
(b) the person claims that the person’s name has been omitted
from the roll for the area (for any reason), but claims he or she is entitled
to vote at an election, or
(c) there is other uncertainty as to a person’s entitlement to
vote at an election (for example, the person claims the person’s name
has been incorrectly marked off a roll at an
election).
Division 3 Nominations and election
306 Nominations
(1) A person who is not duly nominated is not eligible for election as
a councillor, or for election by the electors of an area as
mayor.
(2) To be duly nominated for election as a councillor for an area, or
for election as mayor of an area by the electors of an area, a person must be
enrolled as an elector for the area, and must be qualified to hold that civic
office, at the closing date for the election.
(3) A person may not be nominated for election as a councillor for
more than one ward.
(4) A nomination is to be proposed to and made by the returning
officer as prescribed by the regulations and may be withdrawn by the nominee
as prescribed by the regulations.
(5) A nomination is to be rejected if the returning officer has not
been paid the deposit prescribed by the regulations for the nomination or (if
none is prescribed) a deposit of 50 per cent of the deposit required to be
deposited under the Parliamentary
Electorates and Elections Act 1912 for the nomination of a
candidate for election to the Legislative Assembly.
(5A) However, if a group that comprises more than 5 candidates:(a) proposes the nomination of all members of the group, and pays the
deposit for the nomination of all members of the group, at the same time,
and
(b) has lodged a claim under section 308A
(2),
the amount of the deposit for each candidate included in the group is 5
times the deposit for one candidate divided by the number of candidates in
that group.
(6) If a returning officer rejects a proposed nomination and the
nominated person applies in writing for an explanation of the rejection, the
returning officer must provide the nominated person with a written explanation
within 7 days.
(7) A deposit may be refunded in accordance with the
regulations.
307 Nomination where name omitted from roll
Despite section 306, a person whose nomination for election to a
civic office would, but for this section, be rejected on the ground only that
he or she is not enrolled as an elector for the area may be nominated
if:(a) the name of the person has been omitted from the roll of electors
mistakenly or accidentally, and
(b) but for that omission the nomination would not have been
rejected.
308 Candidate information sheets
(1) A nomination of a candidate for election to a civic office is to
be accompanied by a candidate information sheet in the form of a statutory
declaration made by the candidate.
(2) The regulations may make provision for the matters that are to be
included in, or that may or may not be included in, a candidate information
sheet. The regulations may not prohibit the inclusion in a candidate
information sheet of matter relating to a candidate’s
policies.
(3) The returning officer is to make each candidate information sheet
available for public inspection at any reasonable time during office hours at
the office of the returning officer and at any other place determined by the
returning officer.
(4) An electoral official at each polling place is to ensure that a
copy of each candidate information sheet is displayed at the polling
place.
308A Grouping of candidates
(1) This section applies to an election in which there are 2 or more
councillors to be elected.
(2) Two or more candidates duly proposed for nomination for election
may, before noon on the nomination day prescribed by the regulations, claim to
have their names included in a group on the ballot-papers and in the order
specified in the claim. The claim is to be lodged with the returning
officer.
(3) A claim under subsection (2) may also include a request for a
group voting square for the group to appear on the ballot-papers to be used in
the election concerned, but only if:(a) in the case of an area not divided into wards—the number of
candidates in the group on the nomination day prescribed by the regulations is
at least half the number of candidates to be elected, or
(b) in the case of an area divided into wards—there are at least
as many candidates in the group on the nomination day prescribed by the
regulations as there are candidates to be elected.
(4) A group voting square is to be printed on the ballot-papers above
the names of the candidates in each group that has duly requested a group
voting square under subsection (3), but only if more than one group has duly
requested a group voting square.
(5) An application under Part 7 for the name of a political party to
be printed adjacent to the name of a candidate on the ballot-papers may
include a further request for that name or a composite name to be printed on
the ballot-papers adjacent to the candidates’ group voting
square.
308B Group voting—recording of votes
(1) This section applies if a ballot-paper has group voting
squares.
(2) Instead of marking the separate voting squares for the candidates,
the voter may record a vote:(a) by placing the number “1” in any one of the group
voting squares, and
(b) (if he or she wishes) by placing consecutive numbers (beginning
with the number “2”) in any other of those group voting squares,
in the order of his or her preference for the various groups of
candidates.
(3) The number “1” appearing in a group voting square for
a group indicates:(a) that the voter’s first preference vote is for the first
candidate in the group, and
(b) that the voter’s subsequent preference votes are for the
other candidates in the group in the order in which their names appear on the
ballot-paper.
(4) Subsequent numbers appearing in group voting squares for other
groups indicate that the voter’s preferences (subsequent to those
referred to in subsection (3)) are for the candidates in those groups:(a) in the order in which those groups are numbered by the voter,
and
(b) within each group, in the order in which the names of the
candidates in that group appear on the
ballot-paper.
308C Group voting—marking of ballot-papers
(1) If a voter records a vote on a ballot-paper by placing a mark in a
group voting square but also indicates preferences for individual candidates,
the following provisions apply:(a) if the indication of preferences for individual candidates would,
if it stood alone, constitute a formal vote, that indication of preferences is
taken to be the vote of the voter and the mark in the group voting square is
to be disregarded,
(b) if the indication of preferences for individual candidates would
not, if it stood alone, constitute a formal vote, it is to be disregarded and
the vote of the voter is to be taken to have been expressed by the mark in the
group voting square.
(2) A ballot-paper is not informal by reason only that the voter has
recorded a vote by placing a cross or a tick in a group voting square and not
placing any mark or writing in any other group voting square, but the
ballot-paper is to be treated as if the cross or tick were the number
“1”.
(3) A ballot-paper is not informal by reason only that the voter has
recorded a vote by placing the number “1” or a tick in a group
voting square and placing a cross in (or a line through) all or some of the
other group voting squares on the ballot-paper, but the ballot-paper is to be
treated as if the marks in those other squares did not appear on the
ballot-paper and any such tick were the number
“1”.
(4) A ballot-paper on which the voter has recorded a vote by placing
in one group voting square the number “1” is not informal by
reason only that:(a) the same preference (other than the first preference) is recorded
on the ballot-paper for more than one group, but in that event the
ballot-paper is to be treated as if those and any subsequent preferences had
not been recorded, or
(b) there is a break in the order of preferences for groups, but in
that event the ballot-paper is to be treated as if any preference after the
break had not been recorded, or
(c) fewer preferences are recorded than there are candidates to be
elected.
(5) The ballot-papers for an election are not informal by reason only
that they contain the name of a candidate whom a court has declared to be
incapable of being elected at that election, but a preference for such a
candidate (whether individually or as a member of a group) is to be
disregarded, and (if necessary) subsequent preferences are to be renumbered
accordingly.
Note. The regulations make further provision regarding the formality of
ballot-papers.
308D Group voting—regulations
The regulations may make provision for or with respect to the
grouping of candidates, group voting squares and the matter to be printed on
ballot-papers.
309 Contested elections
(1) If the number of candidates nominated for election as councillors
for a ward or an area is greater than the number required to be elected for
the ward or area, the election is to be a contested
election.
(2) If there are two or more candidates for election by the electors
of an area as mayor of the area, there is to be a contested election for the
office.
(3) If a candidate who is nominated for election to a civic office in
respect of a ward or area dies before the day when the poll at a contested
election closes, the election fails in respect of that civic office for the
ward or area.
310 Conduct of contested elections
A contested election for a civic office is to be conducted as
prescribed by the regulations.
310A Postal votes
At any election, any postal vote must be accepted for further
scrutiny if:(a) the postal vote is received by the returning officer before 6 pm
on the first business day immediately following the close of the poll,
and
(b) the returning officer is satisfied that the voter has indicated,
in accordance with the regulations, that the postal vote was completed before
the close of the poll.
311 Uncontested elections
(1) A candidate nominated for election as a councillor for a ward or
area is, without a poll being held, taken to have been elected if the number
of candidates nominated for election as councillors for the ward or area is no
greater than the number of councillors required to be elected for the ward or
area.
(2) A candidate nominated for election by the electors of the area as
the mayor of the area is, without a poll being held, taken to have been
elected if he or she is the only nominee for election as the
mayor.
(3) A person holding civic office under this section without a poll
being held is taken to have been elected:(a) on the day on which the poll would have been held, if the election
were an ordinary election, or
(b) on the day of nomination, if paragraph (a) does not
apply.
(4) If a candidate who is nominated for election to a civic office in
respect of a ward or area dies before the day referred to in subsection (3),
the election in respect of that civic office for that ward or area is taken to
have failed and no candidate in that election can be taken to have been
elected in respect of that civic office for that ward or
area.
Division 4 Where residents fail to vote
312 Offence
A person whose name is on the residential roll in respect of a
ward or area must vote at any contested election in the ward or area (other
than an election of the mayor by the councillors) unless the person has a
sufficient reason not to vote.Maximum penalty: 1 penalty unit.
313 Check on double-voting and failure to vote
(1) After the close of the poll at a contested election, the copies of
the roll of electors used at the election are to be checked by the Electoral
Commissioner in accordance with this section to determine:(a) which electors’ names (if any) have been marked more than
once, and
(b) which electors (if any) appear to have failed to
vote.
(2) In the case of an election administered by a general manager, the
general manager must (within the period specified by the Electoral
Commissioner) forward the copies of the roll of electors used at that election
to the Electoral Commissioner for checking.
(3) The Electoral Commissioner is, for each contested election, to
prepare a list of the names of the persons on the residential roll who,
although entitled to vote at the election, appear to have failed to vote and
do not appear to have a sufficient reason for the
failure.
314 Penalty notice to be issued for failure to
vote
(1) The Electoral Commissioner is to serve a penalty notice on each
resident who is indicated on the list prepared under section 313 as appearing
not to have a sufficient reason for failing to vote at an
election.
(2) A penalty notice is to be served within 3 months after the close
of the poll at the election to which it relates and, if not served personally,
is to be served by post at the address of the resident last known to the
Electoral Commissioner.
(3) A penalty notice is a notice in the form prescribed by the
regulations to the effect that, if the resident does not desire to have the
failure to vote dealt with by a court:(a) the Electoral Commissioner must be given, within a time stated in
the notice, a sufficient reason for the failure to vote,
or
(b) a penalty of 0.5 penalty unit must be paid to the Electoral
Commissioner.
(4) If, within 28 days after service of the penalty notice, the
Electoral Commissioner is given a sufficient reason for the failure to vote or
the penalty is paid, the resident is not liable to any further proceedings for
the offence to which the penalty notice relates.
(5) If an insufficient reason for a failure to vote is given in
response to a penalty notice, the Electoral Commissioner is to include a
statement to that effect in any penalty reminder notice served under the
Fines Act 1996 in relation
to the penalty notice.
(6) For the purposes of this section, it is a sufficient reason for a
failure by a resident to vote if the Electoral Commissioner is satisfied that
the resident:(a) is dead, or
(b) was absent from the area on polling day, or
(c) was ineligible to vote, or
(d) had an honest belief that he or she had a religious duty to
abstain from voting, or
(e) (Repealed)
(f) was unable to vote for any other reason acceptable to the
Electoral Commissioner.
(7) If a penalty notice is served, the Electoral Commissioner is to
note on the list prepared under section 313, or on a separate list of the
residents on whom penalty notices have been served, whether or not there has
been a response to the penalty notice and, if there has been a response,
whether a sufficient reason has been given, or a penalty paid, for the failure
to vote.
315 Evidence in list of non-voters
(1) It is evidence:(a) of service of a penalty notice on a resident,
or
(b) of a lack of response to a penalty notice served on a resident,
or
(c) that a reason was given for a failure by a resident to vote at an
election, but the reason was insufficient,
if there is on a certified list a notation to that effect in relation to
the resident.
(2) For the purposes of this section, a certified list is a list that
is certified by the Electoral Commissioner as (or as a copy of or extract
from) the list prepared under section 313 or the separate list prepared under
section 314 (7).
Division 5 Miscellaneous
316 Position on ballot-paper
The order of candidates’ names on ballot-papers is to be
determined by a method of random selection (including by electronic means) in
accordance with the regulations.
317 Validity of elections
(1) An election is not invalid just because:(a) there was a formal defect or error in or relating to the election,
if the election was held substantially in accordance with this Act,
or
(b) there was a defect in the appointment of the returning officer,
or
(c) the time for closing the poll for postal voting was extended with
the approval of the Electoral Commissioner or returning officer (in relation
to an election administered by the Electoral Commissioner) or the general
manager or returning officer (in relation to an election administered by the
general manager) conducting the election, or
(d) on polling day the name of a political party, or the abbreviation
of that name, as registered in the Local Government Register of Political
Parties appears printed adjacent to the name of a candidate on the
ballot-papers for the election, but between the time the candidate was
endorsed by the party and the polling day the candidate has ceased to be so
endorsed.
(2) A proclamation of the Governor to the effect that a specified
irregularity does not invalidate an election is conclusive as to the matter
stated in the proclamation.
318 Lapsed or void election
(1) If an election for a civic office is not held when it is due,
fails or is later declared void:(a) the holder of the civic office at the time when the election
should have been held or when the election failed (or, in the case of a void
election, if there is no such holder, the candidate purporting to have been
elected at the void election), holds the office as if duly elected until an
election is held under paragraph (b), and
(b) the returning officer is to hold another election as if a casual
vacancy had occurred in the civic office.
(2) An election held for the purposes of this section is as valid as
it would have been if it had been held at the time originally appointed for
the purpose.
Part 6A Postponement of elections
318A Definition
In this Part:election
requirements of this Act means the requirements of Parts 4 and 5
with respect to the holding of an ordinary election referred to in section 287
or a by-election referred to in section 292.
318B Postponement of elections
(1) The Minister may, by order published in the Gazette, postpone the
election requirements of this Act in relation to a specified council
if:(a) the council is the subject of:(i) an investigation under section 430 or any other provision of this
Act, or
(ii) a public inquiry, or
(iii) an investigation by an authority (as defined in the Dictionary at
the end of this Act) under any Act, or
(b) without limiting anything else in this subsection, a matter
affecting the boundaries of the council’s area is under consideration by
the Boundaries Commission (whether or not involving an inquiry by the
Commission).
(2) The latest date to which the election requirements of this Act may
be postponed by an order under this section is:(a) the date occurring 12 months after the order is made,
or
(b) if the postponement is extended by a further order under this
section, 31 December in the calendar year following that in which the first
such order was made.
(3) An order may be made under this section even though the election
requirements of this Act are in operation with respect to an election for the
council.
(4) On the making of an order under this section:(a) the election requirements of this Act are suspended in relation to
the council for the period specified in the order, including with respect to
an election for which the election requirements of this Act were in operation
when the order was made, but not with respect to an election held on or before
the day on which the order is published, and
(b) the retiring councillors continue in office (subject to this Act)
until an election is held, and
(c) anything already done, under or for the purposes of those
requirements in relation to the council for an election that would (but for
the making of the order) have been held during the suspension period, has no
effect or operation, and
(d) a person who is taken to have been elected under section 311 at an
election that would (but for the making of the order) be held during the
suspension period is taken not to have been
elected.
(5) The suspension ceases to have effect if the order is revoked under
section 318C.
(6) If the suspension ceases to have effect through the passage of
time and not through revocation of the order, the provisions of section 318C
(other than subsections (1) (a) and (3) (a)) apply as if the order had been
revoked.
(7) If while an order under this section is in force a casual vacancy
occurs in the office of mayor elected by the electors, the casual vacancy is
to be filled in accordance with the provisions of section 295 as if it were a
casual vacancy in the office of mayor elected by the
councillors.
318C Revocation of postponement
(1) The Minister may, by order published in the Gazette:(a) revoke a former order that has been made in relation to a council,
and
(b) if:(i) the day on which an election would (but for the former order) have
been required to be held has passed, or
(ii) the day on which an election is required to be held will occur
within 3 months after the day on which the order is
made,
appoint a day as the day on which the election is to be
held.
(2) The day appointed by the order as the day on which an election is
to be held is to be a Saturday occurring not less than 3 months, and not more
than 6 months, after the day on which the order is
made.
(3) On the making of an order under this section:(a) the suspension by the former order of the election requirements of
this Act is terminated, and
(b) an election is to be held in accordance with the election
requirements of this Act:(i) on the day ascertained in accordance with those requirements,
or
(ii) if the order appoints a different day, on the day so
appointed.
(4) In this section, former order means
an order under section 318B.
Part 7 Political parties
319 Local Government Register of Political Parties
(1) The Electoral Commissioner is to keep a register containing the
names of the parties registered under this Part and other particulars or
documents required by this Part.
(2) The register is to be called the Local Government Register of
Political Parties.
(3) The register is to be kept in the form and manner decided by the
Electoral Commissioner.
320 Registration of political parties
(1) The political parties registered under this Part are:(a) the political parties registered for the time being under Part 4A
of the Parliamentary Electorates and
Elections Act 1912, and
(b) any other political parties registered for the time being for the
purposes of this Act.
(2) A party may be registered for the purposes of this Act in
accordance with the procedure applicable under Part 4A of the Parliamentary Electorates and Elections Act
1912, subject to the following modifications of that
Part:(a) references to an eligible party are to be read as references to an
eligible local government party (as defined in subsection
(3)),
(b) references to Parliament are to be read as references to a
council,
(c) references to the names and addresses of 750 electors are to be
read as references to the names, addresses and signatures of 100
electors,
(d) references to the Register of Parties are to be read as references
to the Local Government Register of Political Parties,
(e) references to the issue of a writ for an election are to be read
as references to the closing date for an election,
(f) sections 66C, 66D (3), 66FA (2), 66H (3A), 66JA and 66N of that
Act are to be disregarded,
(g) the reference in section 66FA (1) (a) of that Act to Division 6B
of Part 5 of that Act is a reference to section 321 of this
Act,
(g1) the reference in section 66FA (1) (b) of that Act to sections 79
and 81B of that Act is a reference to any regulations under this Act regarding
a political party proposing a candidate for nomination,
(g2) the reference in section 66FA (1) (c) of that Act to section 151G
of that Act is a reference to any regulations under this Act regarding
registration of electoral material,
(h) such other modifications as are prescribed by the
regulations.
(3) For the purposes of subsection (2), an eligible local
government party is a party:(a) that has at least 100 members, and
(b) that is established on the basis of a written constitution
(however expressed) that sets out the platform or objectives of the
party.
321 Party endorsement on ballot-papers
(1) The registered officer for a political party may apply to the
returning officer to arrange for the name of the party as registered in the
Local Government Register of Political Parties, or the abbreviation of the
name as so registered, to be printed adjacent to the name of a candidate on
the ballot-papers for an election to civic office, but only if the candidate
has been endorsed for that election by the party.
(2) A candidate at an election is taken to have been endorsed for the
election by a political party registered in the Local Government Register of
Political Parties only if:(a) the candidate is stated by the registered officer for the party to
be so endorsed, or
(b) the name of the candidate is included in a statement that is
signed by the registered officer for the party, sets out the names of the
candidates endorsed by the party for the election and is given to the
returning officer before noon on the day for the nomination of candidates at
the election, or
(c) the returning officer is satisfied, after making such inquiries as
the returning officer thinks appropriate, that the candidate is so
endorsed.
(3) A candidate for an election who has been endorsed by two or more
political parties is taken to have been endorsed:(a) by the political party whose registered officer nominated the
candidate, if the candidate was nominated by the registered officer,
or
(b) by the political party whose registered officer applied for the
endorsement, if paragraph (a) does not apply, or
(c) in any other case, by the political party specified by the
candidate in a notice given to the returning
officer.
(4) An application under this section must be in writing signed by the
applicant and delivered to the returning officer before noon on the day for
the nomination of candidates at the election.
(5) An application under this section may be withdrawn by the
candidate by written notice to the returning officer before noon on the day
for nomination.
322 Independent candidate on ballot-papers
(1) A candidate for election to civic office may apply to the
returning officer to arrange for the word “Independent” to be
printed adjacent to the name of the candidate on the ballot-papers for the
election.
(2) The application is to be in writing signed by the applicant and
given to the returning officer before noon on the day for the nomination of
candidates at the election.
(3) If an application is made under both this section and section 321
in relation to the same candidate, the application under section 321 is void
and is to be disregarded.
(4) An application under this section may be withdrawn by the
candidate by written notice to the returning officer before noon on the day
for nomination.
323 Printing of political party name on
ballot-papers
(1) The name of a political party is to be printed adjacent to the
name of a candidate on the ballot-papers for an election to civic office
if:(a) the candidate has been endorsed by the party as a candidate at the
election, and
(b) an application for the name of the party to be printed on the
ballot-papers adjacent to the name of the candidate has been accepted by the
returning officer.
(2) The word “Independent” is to be printed adjacent to
the name of a candidate for election to civic office if an application made by
the candidate to have the word so printed has been accepted by the returning
officer.
324 Form of political party name on ballot-papers
(1) The name of a political party to be printed on ballot-papers under
this Part is the name entered for the party in the Local Government Register
of Political Parties or the abbreviated name so entered for the party if
application was made for the printing of the abbreviated
name.
(2) The names, or abbreviated names, of political parties printed on
ballot-papers adjacent to the names of candidates are to be in capital letters
in type that is uniform in size and style for all of the political
parties’ names or abbreviated names.
Part 8
325–328(Repealed)
Part 8A Political donations
328A General manager to keep register of political donation
disclosures
(1) The general manager is required to keep a register of copies of
current declarations of disclosures of political donations lodged with the
Election Funding Authority by or on behalf of councillors of the council
concerned (including in their capacity as candidates for election as
councillors).
(2) For the purposes of this section, current declarations of
disclosures of political donations are declarations lodged under Part 6 of the
Election Funding, Expenditure and
Disclosures Act 1981 in respect of the relevant disclosure
period that includes the date of the last election (other than a by-election)
and all subsequent relevant disclosure periods.
Note. Part 6 of the Election Funding,
Expenditure and Disclosures Act 1981 makes provision for
disclosure by councillors and candidates for civic office (and parties
registered in connection with local government elections) of political
donations and electoral expenditure.
328B Reference by general manager to Director-General of
political donation matters
(1) If the general manager reasonably suspects that a councillor has
not complied with the provisions of the code of conduct under section 440
relating to the disclosure of political donations or the manner of dealing
with any perceived conflict of interest in relation to political donations,
the general manager is to refer the matter to the
Director-General.
(2), (3) (Repealed)
Part 9 Dismissal from civic office
329 Can the holder of a civic office be dismissed?
(1) Any person may apply to the Administrative Decisions Tribunal for
an order that a person be dismissed from civic
office.
(2) On any such application, the Tribunal may order the dismissal of a
person from civic office:(a) if there has been any irregularity in the manner in which the
person has been elected or appointed to that office, or
(b) if the person is disqualified from holding civic
office.
(3) Proceedings based on the ground that there has been an
irregularity in the manner in which a person has been elected or appointed to
civic office may not be commenced more than 3 months after the date of the
person’s election or appointment to that
office.
(4) If the proceedings are based on the ground that a person is
disqualified from holding civic office, the Tribunal may refuse to order the
dismissal of the person from that office if it is satisfied:(a) that the facts and circumstances giving rise to the
disqualification are of a trifling character, and
(b) that the acts which gave rise to that disqualification were done
in good faith and without knowledge that the person would incur
disqualification by doing those acts.
(5) Subsection (4) does not apply to a person who is disqualified from
holding civic office by a decision of the Pecuniary Interest and Disciplinary
Tribunal under section 482 or by a decision of the Governor under section
440B.
(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act
1997 in respect of proceedings commenced by an application
made under this Part.
330 Appeals to Supreme Court against dismissal
order
(1) A person against whom an order of dismissal is made by the
Tribunal may appeal against the order, on a question of law, to the Supreme
Court.
(2) Such an appeal may not be made more than 28 days after the date on
which the order of dismissal is made.
331 When does an order of dismissal take effect?
An order of dismissal made by the Tribunal takes effect:(a) if no appeal to the Supreme Court is made against the order, at
the end of the period during which such an appeal may be made,
or
(b) if such an appeal is made within that period and the order is
confirmed on appeal, when the order is confirmed, or
(c) if, within that period, the person against whom the order is made
serves on the general manager of the council concerned written notice of
intention not to appeal against the order, when the notice is
lodged.
Chapter 11 How are councils staffed?
Introduction. The Chapter provides for the employment of staff to assist
councils to exercise their functions. A council should have sufficient and
appropriately qualified staff for the efficient and effective management of
its organisation.The Chapter includes provision for the appointment by each council
of a general manager and other senior staff and of a “public
officer”. Some requirements concerning employment of staff are contained
in other law (for example, industrial relations
legislation).
Part 1 Organisation structure
332 Determination of structure
(1) A council must determine:• an organisation structure
• those positions within the organisation structure that are senior
staff positions
• the resources to be allocated towards the employment of
staff.
(2) A council may not determine a position to be a senior staff
position unless:(a) the responsibilities, skills and accountabilities of the position
are generally equivalent to those applicable to the Executive Band of the
Local Government (State) Award, and
(b) the total remuneration package payable with respect to the
position is equal to or greater than the minimum remuneration package (within
the meaning of Part 3A of the Statutory and
Other Offices Remuneration Act 1975) payable with respect to
senior executive office holders whose positions are graded Level 1 (General
Management).
(3) For the purposes of subsection (2) (b), the total remuneration
package payable with respect to a position within a council’s
organisation structure includes:(a) the total value of the salary component of the package,
and
(b) the total amount payable by the council by way of the
employer’s contribution to any superannuation scheme to which the holder
of the position may be a contributor, and
(c) the total value of any non-cash benefits for which the holder of
the position may elect under the package, and
(d) the total amount payable by the council by way of fringe benefits
tax for any such non-cash benefits.
333 Re-determination of structure
The organisation structure may be re-determined by the council
from time to time. It must be re-determined within 12 months after any
ordinary election of the council.
Part 2 The general manager and other senior staff
334 Appointment of general manager
(1) A council must appoint a person to be its general manager. The
person must not be a body corporate.
(2) The position of general manager is a senior staff
position.
335 Functions of general manager
(1) The general manager is generally responsible for the efficient and
effective operation of the council’s organisation and for ensuring the
implementation, without undue delay, of decisions of the
council.
(2) The general manager has the following particular functions:• to assist the council in connection with the development and
implementation of the community strategic plan and the council’s
resourcing strategy, delivery program and operational plan and the preparation
of its annual report and state of the environment report
• the day-to-day management of the council
• to exercise such of the functions of the council as are delegated
by the council to the general manager
• to appoint staff in accordance with an organisation structure and
resources approved by the council
• to direct and dismiss staff
• to implement the council’s equal employment opportunity
management plan.
(3) The general manager has such other functions as may be conferred
or imposed on the general manager by or under this or any other
Act.
336 Filling of vacancy in position of general
manager
(1) If a vacancy occurs in the position of general manager, the
council must immediately appoint a person under section 334 to the vacant
position or appoint a person to act in the vacant
position.
(2) A vacancy occurs in the position of general manager if the general
manager:(a) dies, or
(b) completes the term of his or her contract and is not re-appointed,
or
(c) resigns from the position, or
(d) becomes a mentally incapacitated person and is removed from the
position by the council because of that mental incapacity,
or
(e) is sentenced to imprisonment, or
(f) is removed from the position for breach of or under the terms of
the general manager’s contract with the
council.
(3) A person may be removed from office under subsection (2) (d) only
if, taking into account the person’s past training, qualifications and
experience relevant to employment as a general manager, the person’s
performance as an employee, and all other relevant factors that it is
reasonable to take into account, the person because of his or her mental
incapacity:(a) would be unable to carry out the inherent requirements of the
position of general manager, or
(b) would, in order to carry out those requirements, require services
or facilities that are not required by persons who are not mentally
incapacitated persons and the provision of which would impose an unjustifiable
hardship (within the meaning of the Disability
Discrimination Act 1992 of the Commonwealth) on the
council.
337 Council to be consulted as to appointment and dismissal
of senior staff
The general manager may appoint or dismiss senior staff only after
consultation with the council.
338 Nature of contracts for senior staff
(1) The general manager and other senior staff of a council are to be
employed under contracts that are
performance-based.
(2) The term of a contract must not be less than 12 months or more
than 5 years (including any option for renewal). A term that is less than 12
months is taken to be for 12 months and a term for more than 5 years is taken
to be limited to 5 years.
(3) Contracts may be renewed from time to
time.
(4) The Director-General may, by order in writing, approve one or more
standard forms of contract for the employment of the general manager or other
senior staff of a council.
(5) A standard form of contract approved by the Director-General is
not to include provisions relating to the level of remuneration or salary
(including employment benefits) of the general manager or other senior staff
of a council, performance-based requirements or the duration of the
contract.
(6) A council is not to employ a person to a position to which one or
more standard forms of contract approved for the time being under this section
applies or apply except under such a standard form of
contract.
(7) The council may include in an employment contract for the general
manager or another member of the senior staff additional provisions to those
contained in the standard form of contract but only if those provisions relate
to any of the following:(a) the level of remuneration or salary (including employment
benefits) of the person employed under the contract,
(b) subject to subsections (1) and (2), performance-based requirements
or the duration of the contract.
(8) Despite subsection (6), the approval, amendment or substitution of
a standard form of contract under this section does not affect any employment
contract between a council and the general manager of the council or another
member of the senior staff of the council if the employment contract was
entered into before the approval, amendment or substitution of the standard
form of contract.
(9) However, subsection (6) does apply to the renewal of any such
employment contract occurring after the standard form of contract is approved,
amended or substituted and to all new contracts entered into after the
standard form of contract is approved, amended or
substituted.
339 Annual reporting of contracts for senior staff
The general manager must, at least once annually, report to the
council on the contractual conditions of senior staff.
340 Industrial arbitration excluded
(1) In this section, a reference to the employment of the general
manager or another senior staff member is a reference to:(a) the appointment of, or failure to appoint, a person to the vacant
position of general manager or to another vacant senior staff position,
or
(b) the removal, retirement, termination of employment or other
cessation of office of the general manager or another senior staff member,
or
(c) the remuneration or conditions of employment of the general
manager or another senior staff member.
(2) The employment of the general manager or another senior staff
member, or any matter, question or dispute relating to any such employment, is
not an industrial matter for the purposes of the Industrial Relations Act
1996.
(3) Subsection (2) applies whether or not any person has been
appointed to the vacant position of general manager or another vacant senior
staff position.
(4) No award, agreement, contract determination or order made or taken
to have been made or continued in force under the Industrial Relations Act 1996,
whether made before or after the commencement of this section, has effect in
relation to the employment of senior staff members.
(5) No proceedings for an order in the nature of prohibition,
certiorari or mandamus or for a declaration or injunction or for any other
relief, lie in respect of the appointment of or failure to appoint a person to
the position of general manager or to another senior staff position, the
entitlement or non-entitlement of a person to be so appointed or the validity
or invalidity of any such appointment.
341 Duty to report bankruptcy
(1) If a person who is a senior staff member becomes bankrupt or makes
a composition, arrangement or assignment for the benefit of the person’s
creditors, the person must:(a) immediately give notice of the bankruptcy, composition,
arrangement or assignment to the general manager, and
(b) provide the general manager, within the time specified by the
general manager, with any further information concerning the cause of the
bankruptcy or of the making of the composition, arrangement or assignment
required by the general manager.
(2) If the person is the general manager, subsection (1) applies as if
references to the general manager were references to the
council.
Part 3 The public officer
342 Appointment of the public officer
(1) The general manager is to designate a member of staff as the
public officer of the council.
(2) The position of public officer may, but need not be, a senior
staff position.
343 Functions of the public officer
(1) The public officer:• may deal with requests from the public concerning the
council’s affairs
• has the responsibility of assisting people to gain access to
public documents of the council
• may receive submissions made to the council
• may accept service of documents on behalf of the
council
• may represent the council in any legal or other
proceedings
• has such other functions as may be conferred or imposed on the
public officer by the general manager or by or under this
Act.
(2) The public officer is subject to the direction of the general
manager.
Part 4 Equal employment opportunity
344 Objects
(1) The objects of this Part are:(a) to eliminate and ensure the absence of discrimination in
employment on the grounds of race, sex, marital or domestic status and
disability in councils, and
(b) to promote equal employment opportunity for women, members of
racial minorities and persons with disabilities in
councils.
(2) In this section, disability has the same
meaning as in the Disability Discrimination Act
1992 of the Commonwealth.Note. The Disability Discrimination Act
1992 of the Commonwealth defines disability to include such
things as loss of bodily or mental function, loss of a part of the body,
malfunction, malformation or disfigurement of a part of the body and certain
other conditions, disorders, illnesses and diseases. That Act makes it
unlawful for an employer to discriminate against a person on the ground of the
other person’s disability in certain contexts. These include in
determining who should be offered employment (section 15 of that Act). Such
discrimination is unlawful unless the person, because of his or her
disability, would be unable to carry out the inherent requirements of the
particular employment or would, in order to carry out those requirements,
require services or facilities that are not required by persons without the
disability and the provision of which would impose an unjustifiable hardship
on the employer.
345 Preparation and implementation of EEO management
plans
(1) A council must prepare and implement an equal employment
opportunity management plan in order to achieve the objects of this
Part.
(2) The plan is to include provisions relating to:(a) the devising of policies and programs by which the objects of this
Part are to be achieved, and
(b) the communication of those policies and programs to persons within
the staff of the council, and
(c) the collection and recording of appropriate information,
and
(d) the review of personnel practices within the council (including
recruitment techniques, selection criteria, training and staff development
programs, promotion and transfer policies and patterns, and conditions of
service) with a view to the identification of any discriminatory practices,
and
(e) the setting of goals or targets, where these may reasonably be
determined, against which the success of the plan in achieving the objects of
this Part may be assessed, and
(f) the means, other than those referred to in paragraph (e), of
evaluating the policies and programs referred to in paragraph (a),
and
(g) the revision and amendment of the plan, and
(h) the appointment of persons within the council to implement the
provisions referred to in paragraphs (a)–(g).
(3) An equal employment opportunity management plan may include
provisions, other than those referred to in subsection (2), that are not
inconsistent with the objects of this Part.
(4) A council may, from time to time, amend its equal employment
opportunity management plan.
346 Inconsistencies with the Anti-Discrimination Act
1977
(1) The provisions of an equal employment opportunity management plan,
to the extent of any inconsistency between those provisions and the provisions
of the Anti-Discrimination Act
1977, prevail.
(2) This section does not apply to or in respect of the provisions of
a plan which are the subject of a reference under section 347 to the
Anti-Discrimination Board or the Public Service
Commissioner.
Note. This section adopts the principles in section 122K of the Anti-Discrimination Act 1977. Those
principles are designed to ensure that full effect can be given to the objects
of this Part.
347 References
(1) Where the Minister is dissatisfied with any matter relating to the
preparation, amendment or implementation of an equal employment opportunity
management plan by a council or any failure or omission of a council with
respect to the preparation, amendment or implementation of any such plan, the
Minister may refer the matter to the Anti-Discrimination Board or the Public
Service Commissioner.
(2) The provisions of section 122N of the Anti-Discrimination Act 1977, and
the succeeding provisions of Part 9A of that Act, apply to and in respect of a
reference under this section to the Anti-Discrimination Board as if it were a
reference under section 122M of that Act and as if the council were an
authority within the meaning of that Part.
Part 5 Other provisions concerning staff
348 Advertising of staff positions
(1) When it is proposed to make an appointment to a position within
the organisation structure of the council, the position must be advertised in
a manner sufficient to enable suitably qualified persons to apply for the
position.
(2) If the position is a senior staff position, the requirement of
this section is satisfied if the position is advertised at least twice in a
daily newspaper circulating throughout the State.
(3) This section does not apply to:(a) the re-appointment, under a new contract, of a senior staff
member, or
(b) the appointment of an employee if the term of employment is
for:(i) not more than 12 months, or
(ii) two or more periods that together are not more than 12 months in
any period of 2 years.
349 Appointments to be on merit
(1) When the decision is being made to appoint a person to a
position:(a) only a person who has applied for appointment to the position may
be selected, and
(b) from among the applicants eligible for appointment, the applicant
who has the greatest merit is to be selected.
(2) The merit of the persons eligible for appointment to a position is
to be determined according to:(a) the nature of the duties of the position, and
(b) the abilities, qualifications, experience and standard of work
performance of those persons relevant to those
duties.
(3) In determining the merit of a person eligible for appointment to a
position, regard is to be had to the objects of Part 4 of this Chapter (see
section 344).
350 Appointments to which secs 348 and 349 do not
apply
Sections 348 and 349 do not apply to:(a) an appointment by way of demotion, or
(b) an appointment by way of lateral transfer, unless the council
decides that those sections are to apply to the
appointment.
351 Temporary appointments
(1) If a position (including a senior staff position) within the
organisation structure of the council is vacant or the holder of such a
position is suspended from duty, sick or absent:(a) the council, in the case of the general manager’s position,
or
(b) the general manager, in the case of any other
position,
may appoint a person to the position
temporarily.
(2) A person who is appointed to a position temporarily may not
continue in that position:(a) if the holder of the position is on parental leave—for a
period of more than 24 months, or
(b) in any other case—for a period of more than 12
months.
352 Independence of staff for certain purposes
(1) A member of staff of a council is not subject to direction by the
council or by a councillor as to the content of any advice or recommendation
made by the member.
(2) This section does not prevent the council or the mayor from
directing the general manager of the council to provide advice or a
recommendation.
353 Other work
(1) The general manager must not engage, for remuneration, in private
employment or contract work outside the service of the council without the
approval of the council.
(2) A member of staff must not engage, for remuneration, in private
employment or contract work outside the service of the council that relates to
the business of the council or that might conflict with the member’s
council duties unless he or she has notified the general manager in writing of
the employment or work.
(3) The general manager may prohibit a member of staff from engaging,
for remuneration, in private employment or contract work outside the service
of the council that relates to the business of the council or that might
conflict with the member’s council duties.
(4) A member of staff must not engage, for remuneration, in private
employment or contract work outside the service of the council if prohibited
from doing so under subsection (3).
354 Restriction on appointment of a former mayor or
councillor
(1) A person who has held civic office in relation to a council must
not be appointed to any paid position on the staff of the council within 6
months after ceasing to hold the office.
(2) A purported appointment in contravention of this section is
void.
354A Ministerial approval for certain termination payments to
senior staff
(1) A council must not make a payment to the general manager or other
senior staff member of the council in relation to his or her termination of
employment (including termination on the ground of redundancy) without first
obtaining the Minister’s approval to the
payment.
(2) The Minister may refuse to approve a payment under subsection (1)
if the Minister is not satisfied the payment is
appropriate.
(3) A payment referred to in subsection (1) that is made without the
Minister’s approval:(a) is to be repaid to the council, and
(b) is a debt due to the council recoverable by the council or the
Minister in any court of competent jurisdiction.
(4) Subsection (1) does not apply to payments of a kind exempted from
this section by the regulations.
(5) To remove doubt, this section extends to:(a) a termination payment made under a contract and to an ex gratia
termination payment, and
(b) a termination payment made under a contract entered into before
the commencement of this section.
Part 6 Arrangements for council staff affected by the
constitution, amalgamation or alteration of council areas
354B Definitions
(1) In this Part:boundary
alteration means an alteration of the boundaries of one or more
areas by or under a proclamation under Chapter 9.
existing staff
member of a transferee council means, in relation to a staff
transfer occurring in connection with a boundary alteration, a person who was
a member of the staff of the transferee council immediately before the
transfer day and who has not ceased to be a member of that staff.
Note. In the case of a staff transfer effected in connection with the
amalgamation of areas under Chapter 9, no members of staff continue in the
employment of the councils of the areas being amalgamated because all those
areas are dissolved. The members of staff would become employees of the newly
constituted council.
former
council, in relation to a transferred staff member, means the
council that employed the staff member immediately before the transfer
day.
proposal means:
(a) a proposal made under section 215 to constitute one or more areas,
or
(b) a proposal made under section 218E to amalgamate one or more
areas, or
(c) a proposal made under section 218E to alter the boundaries of one
of more areas.
proposal period
means (subject to subsection (2)) the period:
(a) starting on the day the proposal is made, and
(b) ending on the following day:(i) if the Minister decides not to proceed with the proposal—the
day that decision is made under section 215 or 218E,
(ii) if the Minister refers the proposal to the Boundaries Commission
or the Director-General but decides to decline to recommend to the Governor
that the proposal be implemented—the day that decision is
made,
(iii) if the Minister recommends to the Governor that the proposal be
implemented—immediately before the date specified in the proclamation
implementing the proposal.
remaining staff
member of a transferor council means, in relation to a staff
transfer occurring in connection with a boundary alteration, a person who was
a member of the staff of the transferor council immediately before the
transfer day and who has not ceased to be a member of that staff.
Note. In the case of a staff transfer effected in connection with the
amalgamation of areas under Chapter 9, no members of staff continue in the
employment of the councils of the areas being amalgamated because all those
areas are dissolved. The members of staff would become employees of the newly
constituted council.
rural
centre means a centre of population of 5,000 people or fewer, and
includes a geographical area that is prescribed, or is of a kind prescribed,
by regulations in force for the purposes of this definition as being a rural
centre.
staff
transfer means a transfer of staff from the employment of one
council to the employment of another council by or under a proclamation under
Chapter 9.
transfer
day, in relation to a staff transfer, means the day on which the
staff concerned were transferred from the employment of one council to the
employment of another council.
transferee
council, in relation to a staff transfer, means the council into
whose employment the staff concerned were transferred on the transfer
day.
transferor
council, in relation to a staff transfer, means the council from
whose employment the staff concerned were transferred on the transfer
day.
transferred staff
member means a member of the staff of a council who is transferred
to the employment of another council by or under a proclamation under Chapter
9.
work
base means the office, depot or other place of work at or from which
any staff work.
(2) The Minister may, by notice in writing to a council, extend the
proposal period in relation to that council by determining an earlier date for
the start of the period than the date the proposal is made under section 215
or 218E.
354C No forced redundancy of affected staff members during
proposal period
The employment of a member of staff of a council that is affected
by a proposal (other than of a senior staff member) must not be terminated,
without the staff member’s agreement, during the proposal period on the
ground of redundancy.
354D Preservation of entitlements of staff members
(1) If a staff transfer occurs, the employment of:(a) a transferred staff member, and
(b) in the case of a boundary alteration:(i) a remaining staff member of the transferor council,
and
(ii) an existing staff member of the transferee
council,
other than a senior staff member, continues on the same terms and
conditions that applied to the staff member immediately before the transfer
day, subject to section 354E.
(2) Subsection (1) applies until other provision is duly made under
any Act or law.
(3) Neither the contract of employment nor the period of employment of
a transferred staff member is taken to have been broken by the transfer for
the purposes of any law, award or agreement relating to the employment of that
staff member.
(4) A transferred staff member is not entitled to receive any payment
or other benefit merely because the staff member ceases to be a staff member
of the former council.
(5) The transfer of a transferred staff member does not affect any
accrued rights the staff member had immediately before the transfer, including
in relation to recreation leave, sick leave, long service leave and
superannuation, but does not entitle the staff member to claim dual benefits
of the same kind for the same period of service.
354E Certain increases or decreases in staff entitlements
during proposal period not binding on transferee council without
approval
(1) This section applies to a determination of the terms and
conditions of employment of staff members of a council that is made during the
proposal period, and extends to any such determination made in an industrial
agreement with or on behalf of the staff members, in an employment contract
with a staff member or in an employment policy of the
council.
(2) After the transfer day:(a) the transferee council is not bound by any such determination,
and
(b) any such determination is to be disregarded for the purposes of
section 354D (1),
unless the determination has been approved by the Minister under this
section or the approval of the Minister is not required under this
section.
(3) If an application is made to the Minister for approval of a
determination to which this section applies, the Minister may refuse to
approve the determination only if the Minister is satisfied that the
determination arises from or is in anticipation of the proposal and would
result in an unjustifiable increase or decrease in the obligations of the
transferee council in relation to transferred staff
members.
(4) A determination to which this section applies is not required to
be approved by the Minister if:(a) it complies with the requirements of regulations made for the
purposes of this section, or
(b) the Minister determines in writing that approval is not
required.
354F No forced redundancy of non-senior staff members for 3
years after transfer
If a staff transfer occurs, the employment of:(a) a transferred staff member, and
(b) in the case of a boundary alteration:(i) a remaining staff member of the transferor council,
and
(ii) an existing staff member of the transferee
council,
other than a senior staff member, must not be terminated, without the
staff member’s agreement, within 3 years after the transfer day on the
ground of redundancy arising from the staff transfer.
354G Lateral transfer of non-senior staff members
(1) This section applies if either:(a) the following subparagraphs apply:(i) a staff transfer occurs in connection with the constitution of a
new area, whether as a result of the amalgamation of two or more areas or
otherwise, and
(ii) within 3 years after the transfer day, the general manager
proposes to make an appointment to a position within the organisational
structure of the council (the
council), other than a senior staff position,
and
(iii) a transferred staff member (other than a senior staff member) was,
immediately before the transfer day, performing substantially the same duties
for the staff member’s former council as are required to be performed in
the position to be filled, or
(b) the following subparagraphs apply:(i) a staff transfer occurs in connection with a boundary alteration,
and
(ii) within 3 years after the transfer day, the general manager of a
council (the
council) affected by the boundary alteration proposes to make an
appointment to a position within the organisational structure of the council,
other than a senior staff position, and
(iii) a staff member (other than a senior staff member) of the council
was, immediately before the transfer day, performing substantially the same
duties for either or any of the affected councils as are required to be
performed in the position to be filled.
(2) The council:(a) must notify its staff members of the position and give its staff
members a reasonable opportunity to apply for the position,
and
(b) must not externally advertise the
position.
(3) A person who:(a) applies for appointment to a position referred to in this section,
and
(b) is employed by the council at the time of making the application,
and
(c) is a person referred to in subsection (1) (a) (iii) or (b) (iii),
as the case requires,
must be considered for appointment to the position in preference to any
other applicant for the position who is not such a
person.
(4) If there is more than one person referred to in subsection (3) who
is eligible for appointment to a position, the applicant who has the greatest
merit, determined in accordance with section 349 (2) and (3), is to be
selected.
(5) Subject to subsection (4), sections 348 and 349 do not apply to an
appointment to a position referred to in this section and the Council may not
decide, under section 350 (b), that those sections apply to the
appointment.
354H External advertising not required in certain
circumstances
(1) This section applies if either:(a) the following subparagraphs apply:(i) a staff transfer occurs in connection with the constitution of a
new area, whether as a result of the amalgamation of two or more areas or
otherwise, and
(ii) within 3 years after the transfer day, the general manager
proposes to make an appointment to a position within the organisational
structure of the council (the
council), other than a senior staff position,
and
(iii) the general manager is satisfied that one or more of the
transferred staff members (other than a senior staff member) are suitably
qualified for the position, and
(iv) section 354G does not apply with respect to the position,
or
(b) the following subparagraphs apply:(i) a staff transfer occurs in connection with a boundary alteration,
and
(ii) within 3 years after the transfer day, the general manager of a
council (the
council) affected by the boundary alteration proposes to make an
appointment to a position within the organisational structure of the council,
other than a senior staff position, and
(iii) the general manager is satisfied that one or more of the staff
members (other than a senior staff member) of the council who were,
immediately before the transfer day, members of the staff of either or any of
the affected councils are suitably qualified for the position,
and
(iv) section 354G does not apply with respect to the
position.
(2) The council:(a) must notify its staff members of the position and give its staff
members a reasonable opportunity to apply for the position,
and
(b) must not externally advertise the
position.
(3) Section 348 does not apply to an appointment to a position
referred to in this section.
354I Limitations on transfer of work base of non-senior
staff
(1) This section applies, where a staff transfer occurs, to:(a) a transferred staff member, and
(b) in the case of a boundary alteration:(i) a remaining staff member of the transferor council,
and
(ii) an existing staff member of the transferee
council,
other than a senior staff member.
(2) The staff member must not be required by the council employing the
staff member to be based within 3 years after the transfer day at a work base
located:(a) in a case where the staff member is a transferred staff
member—outside the boundaries of the area of his or her former council
as they existed immediately before the transfer day, or
(b) in a case where the staff member is a remaining staff member of
the transferor council—outside the boundaries of the area of the
transferor council as they existed immediately before the transfer day,
or
(c) in a case where the staff member is an existing staff member of
the transferee council—outside the boundaries of the area of the
transferee council as they existed immediately before the transfer
day,
unless the staff member gives his or her written consent to the change of
work base or such a requirement would not cause the staff member to suffer
unreasonable hardship because of the distance required to travel to the
proposed work base.
Chapter 12 How do councils operate?
Introduction. This Chapter describes the ways in which a council carries out its
functions and makes decisions.The Chapter enables each council to adopt a code of meeting
practice after giving public notice of a draft code. The Chapter provides for
the basic matters concerning council meetings (frequency of meetings, notice
of meetings, quorum, voting, rescission motions, committees
etc).
The Chapter enables a council to delegate its functions, other
than those functions the delegation of which is expressly prohibited.
Functions that may not be delegated include the making of a rate or charge,
the borrowing of money, the compulsory acquisition of land, the adoption of
financial statements and the classification of public land as operational
land. Functions may be delegated to the general manager and to specified
persons and bodies but may not be delegated directly by the council to council
employees other than the general manager.
The Chapter requires councils to have public liability and
professional liability insurance. The Chapter also makes provision for the
constitution, functions, operation and dissolution of county
councils.
Part 1 General
355 How does a council exercise its functions?
A function of a council may, subject to this Chapter, be
exercised:(a) by the council by means of the councillors or employees, by its
agents or contractors, by financial provision, by the provision of goods,
equipment, services, amenities or facilities or by any other means,
or
(b) by a committee of the council, or
(c) partly or jointly by the council and another person or persons,
or
(d) jointly by the council and another council or councils (including
by means of a Voluntary Regional Organisation of Councils of which the
councils concerned are members), or
(e) by a delegate of the council (which may, for example, be a
Voluntary Regional Organisation of Councils of which the council is a
member).
356 Can a council financially assist others?
(1) A council may, in accordance with a resolution of the council,
contribute money or otherwise grant financial assistance to persons for the
purpose of exercising its functions.
(2) A proposed recipient who acts for private gain is not ineligible
to be granted financial assistance but must not receive any benefit under this
section until at least 28 days’ public notice of the council’s
proposal to pass the necessary resolution has been
given.
(3) However, public notice is not required if:(a) the financial assistance is part of a specific program,
and
(b) the program’s details have been included in the
council’s draft operational plan for the year in which the financial
assistance is proposed to be given, and
(c) the program’s proposed budget for that year does not exceed
5 per cent of the council’s proposed income from the ordinary rates
levied for that year, and
(d) the program applies uniformly to all persons within the
council’s area or to a significant group of persons within the
area.
(4) Public notice is also not required if the financial assistance is
part of a program of graffiti removal work.Note. Part 4 of the Graffiti Control
Act 2008 deals with graffiti removal
work.
357 Can a council exercise its functions only within its
area?
A council may exercise its functions within its area or outside
its area, but may exercise its regulatory functions under Chapter 7 only
within its area.
358 Restrictions on formation of corporations and other
entities
(1) A council must not form or participate in the formation of a
corporation or other entity, or acquire a controlling interest in a
corporation or other entity, except:(a) with the consent of the Minister and subject to such conditions,
if any, as the Minister may specify, or
(b) as provided by this Act.
(2) This section does not prevent a council from being a member of a
co-operative society or a company limited by guarantee and licensed not to use
the word “Limited” in its name.
(3) In applying for the Minister’s consent under subsection (1)
(a), the council is required to demonstrate, to the Minister’s
satisfaction, that the formation of, or the acquisition of the controlling
interest in, the corporation or entity is in the public
interest.
(3A) The regulations may make provision for or with respect to the
matters to be taken into account by the Minister in deciding whether to grant
consent under this section and the conditions that may or must be specified by
the Minister under this section.
(4) In this section, entity means any
partnership, trust, joint venture, syndicate or other body (whether or not
incorporated), but does not include any such entity that is of a class
prescribed by the regulations as not being within this
definition.
359 Can a council act as an agent?
A council may act as the agent of another person or of the Crown,
subject to the regulations.
How can a
council exercise its functions?
Part 2 How are decisions made?
Division 1 Code of meeting practice
360 Conduct of meetings of councils and committees
(1) The regulations may make provision with respect to the conduct of
meetings of councils and committees of councils of which all the members are
councillors.
(2) A council may adopt a code of meeting practice that incorporates
the regulations made for the purposes of this section and supplements those
regulations with provisions that are not inconsistent with
them.
(3) A council and a committee of the council of which all the members
are councillors must conduct its meetings in accordance with the code of
meeting practice adopted by it.
361 Preparation, public notice and exhibition of draft
code
(1) Before adopting a code of meeting practice, a council must prepare
a draft code.
(2) The council must give public notice of the draft code after it is
prepared.
(3) The period of public exhibition must not be less than 28
days.
(4) The public notice must also specify a period of not less than 42
days after the date on which the draft code is placed on public exhibition
during which submissions may be made to the
council.
(5) The council must publicly exhibit the draft code in accordance
with its notice.
362 Adoption of draft code
(1) After considering all submissions received by it concerning the
draft code, the council may decide:(a) to amend those provisions of its draft code that supplement the
regulations made for the purposes of section 360, or
(b) to adopt the draft code as its code of meeting
practice.
(2) If the council decides to amend its draft code, it may publicly
exhibit the amended draft in accordance with this Division or, if the council
is of the opinion that the amendments are not substantial, it may adopt the
amended draft code without public exhibition as its code of meeting
practice.
363 Amendment of the code
A council may amend a code adopted under this Part by means only
of a code so adopted.
364 Public availability of the code
(1) The code of meeting practice adopted under this Division by a
council must be available for public inspection free of charge at the office
of the council during ordinary office hours.
(2) Copies of the code must be available free of charge or, if the
council determines, on payment of the approved fee.
Division 2 Other provisions concerning council
meetings
365 How often does the council meet?
The council is required to meet at least 10 times each year, each
time in a different month.
366 Calling of extraordinary meeting on request by
councillors
If the mayor receives a request in writing signed by at least 2
councillors, the mayor must call an extraordinary meeting of the council to be
held as soon as practicable but in any event within 14 days after receipt of
the request.
367 Notice of meetings
(1) The general manager of a council must send to each councillor, at
least 3 days before each meeting of the council, a notice specifying the time
and place at which and the date on which the meeting is to be held and the
business proposed to be transacted at the meeting.
(2) Notice of less than 3 days may be given of an extraordinary
meeting called in an emergency.
(3) A notice under this section and the agenda for, and the business
papers relating to, the meeting may be given to a councillor in electronic
form but only if all councillors have facilities to access the notice, agenda
and business papers in that form.
368 What is the quorum for a meeting?
The quorum for a meeting of the council is a majority of the
councillors of the council who hold office for the time being and are not
suspended from office.
369 Who presides at meetings of the council?
(1) The mayor or, at the request of or in the absence of the mayor,
the deputy mayor (if any) presides at meetings of the
council.
(2) If the mayor and the deputy mayor (if any) are absent, a
councillor elected to chair the meeting by the councillors present presides at
a meeting of the council.
370 What are the voting entitlements of
councillors?
(1) Each councillor is entitled to one
vote.
(2) However, the person presiding at a meeting of the council has, in
the event of an equality of votes, a second or casting
vote.
371 What constitutes a decision of the council?
A decision supported by a majority of the votes at a meeting of
the council at which a quorum is present is a decision of the
council.
372 Rescinding or altering resolutions
(1) A resolution passed by a council may not be altered or rescinded
except by a motion to that effect of which notice has been duly given in
accordance with regulations made under section 360 and, if applicable, the
council’s code of meeting practice.
(2) If notice of motion to rescind a resolution is given at the
meeting at which the resolution is carried, the resolution must not be carried
into effect until the motion of rescission has been dealt
with.
(3) If a motion has been negatived by a council, a motion having the
same effect must not be considered unless notice of it has been duly given in
accordance with the council’s code of meeting
practice.
(4) A notice of motion to alter or rescind a resolution, and a notice
of motion which has the same effect as a motion which has been negatived by
the council, must be signed by 3 councillors if less than 3 months has elapsed
since the resolution was passed, or the motion was negatived, as the case may
be.
(5) If a motion to alter or rescind a resolution has been negatived,
or if a motion which has the same effect as a previously negatived motion, is
negatived, no similar motion may be brought forward within 3 months. This
subsection may not be evaded by substituting a motion differently worded, but
in principle the same.
(6) A motion to which this section applies may be moved on the report
of a committee of the council and any such report must be recorded in the
minutes of the meeting of the council.
(7) The provisions of this section concerning negatived motions do not
apply to motions of adjournment.
373 Committee of council
A council may resolve itself into a committee to consider any
matter before the council.
374 Certain circumstances do not invalidate council
decisions
Proceedings at a meeting of a council or a council committee are
not invalidated because of:(a) a vacancy in a civic office, or
(b) a failure to give notice of the meeting to any councillor or
committee member, or
(c) any defect in the election or appointment of a councillor or
committee member, or
(d) a failure of a councillor or a committee member to disclose a
pecuniary interest, or to refrain from the consideration or discussion of, or
vote on, the relevant matter, at a council or committee meeting in accordance
with section 451, or
(e) a failure to comply with the code of meeting
practice.
375 Minutes
(1) The council must ensure that full and accurate minutes are kept of
the proceedings of a meeting of the council.
(2) The minutes must, when they have been confirmed at a subsequent
meeting of the council, be signed by the person presiding at that subsequent
meeting.
375A Recording of voting on planning matters
(1) In this section, planning
decision means a decision made in the exercise of a function of a
council under the Environmental Planning
and Assessment Act 1979:(a) including a decision relating to a development application, an
environmental planning instrument, a development control plan or a development
contribution plan under that Act, but
(b) not including the making of an order under Division 2A of Part 6
of that Act.
(2) The general manager is required to keep a register containing, for
each planning decision made at a meeting of the council or a council
committee, the names of the councillors who supported the decision and the
names of any councillors who opposed (or are taken to have opposed) the
decision.
(3) For the purpose of maintaining the register, a division is
required to be called whenever a motion for a planning decision is put at a
meeting of the council or a council committee.
(4) Each decision recorded in the register is to be described in the
register or identified in a manner that enables the description to be obtained
from another publicly available document, and is to include the information
required by the regulations.
(5) This section extends to a meeting that is closed to the
public.
376 Attendance of general manager at meetings
(1) The general manager is entitled to attend, but not to vote at, a
meeting of the council or a meeting of a committee of the council of which all
the members are councillors.
(2) The general manager is entitled to attend a meeting of any other
committee of the council and may, if a member of the committee, exercise a
vote.
(3) However, the general manager may be excluded from a meeting of the
council or a committee while the council or committee deals with a matter
relating to the standard of performance of the general manager or the terms of
the employment of the general manager.
Part 3 Delegation of functions
377 General power of the council to delegate
(1) A council may, by resolution, delegate to the general manager or
any other person or body (not including another employee of the council) any
of the functions of the council, other than the following:(a) the appointment of a general manager,
(b) the making of a rate,
(c) a determination under section 549 as to the levying of a
rate,
(d) the making of a charge,
(e) the fixing of a fee,
(f) the borrowing of money,
(g) the voting of money for expenditure on its works, services or
operations,
(h) the compulsory acquisition, purchase, sale, exchange or surrender
of any land or other property (but not including the sale of items of plant or
equipment),
(i) the acceptance of tenders which are required under this Act to be
invited by the council,
(j) the adoption of an operational plan under section
405,
(k) the adoption of a financial statement included in an annual
financial report,
(l) a decision to classify or reclassify public land under Division 1
of Part 2 of Chapter 6,
(m) the fixing of an amount or rate for the carrying out by the
council of work on private land,
(n) the decision to carry out work on private land for an amount that
is less than the amount or rate fixed by the council for the carrying out of
any such work,
(o) the review of a determination made by the council, and not by a
delegate of the council, of an application for approval or an application that
may be reviewed under section 82A of the Environmental Planning and Assessment Act
1979,
(p) the power of the council to authorise the use of reasonable force
for the purpose of gaining entry to premises under section
194,
(q) a decision under section 356 to contribute money or otherwise
grant financial assistance to persons,
(r) a decision under section 234 to grant leave of absence to the
holder of a civic office,
(s) the making of an application, or the giving of a notice, to the
Governor or Minister,
(t) this power of delegation,
(u) any function under this or any other Act that is expressly
required to be exercised by resolution of the
council.
(2) A council may, by resolution, sub-delegate to the general manager
or any other person or body (not including another employee of the council)
any function delegated to the council by the Director-General except as
provided by the instrument of delegation to the
council.
378 Delegations by the general manager
(1) The general manager may delegate any of the functions of the
general manager, other than this power of
delegation.
(2) The general manager may sub-delegate a function delegated to the
general manager by the council to any person or body (including another
employee of the council).
(3) Subsection (2) extends to a function sub-delegated to the general
manager by the council under section 377 (2).
379 Delegation of regulatory functions
(1) A regulatory function of a council under Chapter 7 must not be
delegated or sub-delegated to a person or body other than:(a) a committee of the council of which all the members are
councillors or of which all the members are either councillors or employees of
the council, or
(b) an employee of the council, or
(c) a county council.
(2) A regulatory function of a county council under Chapter 7 must not
be delegated or sub-delegated to a person or body other than:(a) a committee of the county council of which all the members are
members of the county council or of which all the members are either members
of the county council or employees of the county council,
or
(b) an employee of the county council, or
(c) a council.
(3) However, if:(a) a regulatory function is delegated to a county council, the
function may be delegated to the general manager and by the general manager to
an employee of the county council, or
(b) a regulatory function is delegated to a council, the function may
be delegated to the general manager and by the general manager to an employee
of the council.
380 Review of delegations
Each council must review all its delegations during the first 12
months of each term of office.
381 Exercise of functions conferred or imposed on council
employees under other Acts
(1) If, under any other Act, a function is conferred or imposed on an
employee of a council or on the mayor or a councillor of a council, otherwise
than by delegation in accordance with this section, the function is taken to
be conferred or imposed on the council.
(2) Such a function may be delegated by the council in accordance with
this Part.
(3) A person must not, under any other Act, delegate a function
to:• the general manager, except with the approval of the
council
• an employee of the council, except with the approval of the
council and the general manager.
Part 4 Insurance
382 Insurance against liability
(1) A council must make arrangements for its adequate insurance
against public liability and professional
liability.
(2) The regulations may make provision with respect to:• arrangements for insurance
• minimum amounts of insurance
• risk management
• claims management
• the keeping of records concerning insurance
• other matters concerning insurance.
Part 5 County councils
383 Proposal to establish or dissolve a county council or
amend its constitution
(1) A council, a county council, a public authority or the
Director-General may make a proposal to the Minister to establish or dissolve
a county council or to amend the constitution of a county
council.
(2) The Minister may propose to establish or dissolve a county council
or to amend the constitution of a county council.
384 Public notice to be given of a proposal
The Minister must give at least 28 days’ public notice of a
proposal made to the Minister that the Minister decides to proceed with or of
a proposal initiated by the Minister.
385 Making of representations
Within the period of public notice, representations concerning the
proposal may be made to the Minister by anyone affected by the
proposal.
386 Minister’s recommendation concerning the
proposal
After considering all representations received concerning the
proposal, the Minister may recommend to the Governor that the proposal be
implemented, with or without modifications, or may decline to recommend that
the proposal be implemented.
387 Formation of county councils
(1) The Governor may, by proclamation, establish county councils for
the purposes of this Act.
(2) A proclamation under this section must contain the following
particulars:(a) the name of the county council,
(b) a description of the county council’s area of
operations,
(b1) the name of each council (referred to in this Part as a constituent
council) whose area lies wholly or partly within the county
council’s area of operations,
(c) the number of persons to be elected by each constituent council to
the county council’s governing body,
(d) a description of the county council’s
functions.
(3) A proclamation under this section conferring functions on a county
council as to the control of noxious weeds on land is to be made only with the
concurrence of the Minister administering the Noxious Weeds Act
1993.
388 Legal status of county councils
(1) A proclamation establishing a county council operates to
constitute the county council as a body politic of the State with perpetual
succession and the legal capacity and powers of an individual, both in and
outside the State.
(2) A county council is not a body corporate (including a
corporation).
(3) A county council does not have the status, privileges and
immunities of the Crown (including the State and the Government of the
State).
(4) A law of the State applies to and in respect of a county council
in the same way as it applies to and in respect of a body corporate (including
a corporation).
389 What is a county council’s name?
The name of a county council is to be “X County
Council”, where “X” is the name specified by the
proclamation.
390 Who comprise the governing body?
(1) A county council must have a governing body elected by its
constituent councils.
(2) Provisions concerning the membership of a county council’s
governing body are to be as prescribed by the proclamation establishing the
county council.
(3) A member of a county council is to be elected from among the
councillors of the constituent councils in accordance with the
regulations.
(4) The governing body of a county council is responsible for managing
the affairs of the county council.
391 The chairperson
(1) The chairperson of a county council is the person elected to the
office of chairperson by the members of the county council from among their
number.
(2) The chairperson holds office for one year, subject to this
Act.
(3) The office of chairperson:(a) commences on the day the person elected to the office is declared
to be so elected, and
(b) becomes vacant when the person’s successor is declared to be
elected to the office, or on the occurrence of a casual vacancy in the
office.
391A What are the functions of the chairperson?
The role of the chairperson of a county council is:(a) to preside at meetings of the county council,
and
(b) to exercise such other functions of the county council as the
county council determines.
392 Vacancy in office of member
(1) A member of a county council vacates that office on ceasing to be
a councillor of a constituent council.
(2) This section does not limit the other circumstances in which a
member of a county council vacates that office.
393 Area of operations of county council
The area of operations of a county council may, in accordance with
a proclamation made for the purposes of this Part, comprise the whole or any
part of one or more local government areas.
394 Functions of county council
(1) The functions of a county council may, in accordance with a
proclamation made for the purposes of this Part, comprise any one or more of
the functions of a council under this or any other
Act.
(2) A council may not undertake a function conferred on a county
council whose area of operations includes the whole or any part of the
council’s area, subject to the regulations or a proclamation made for
the purposes of this Part.
(3) Subsection (2) does not prevent a council from exercising a
function delegated to it by a county council.
395 General manager of county council
(1) A county council must employ a general
manager.
(2) The general manager of a county council has the same functions in
relation to the county council as the general manager of a council has in
relation to the council.
396 How often does a county council meet?
A county council is required to meet at least 4 times each
year.
397 Amendment and dissolution of county councils
(1) The Governor may, by proclamation, amend or revoke a proclamation
in force under section 387 for the purpose of amending the constitution of, or
of dissolving, a county council.
(2) A proclamation for the purpose of amending the constitution of a
county council:(a) may change the name of the county council, or
(b) may vary the county council’s area of operations,
or
(c) may vary the number of persons who comprise the county
council’s governing body, or
(c1) may vary the number of persons to be elected by each constituent
council to the county council’s governing body, or
(d) may vary the county council’s
functions.
398 Facilitating provisions of proclamations
A proclamation of the Governor for the purposes of this Part may
include provisions of the same kind as are referred to in section
213.
399 Making of financial contributions by constituent
councils
The regulations may make provision for or with respect to the
making of financial contributions to a county council by the constituent
councils, including the following:• the purposes for which contributions may be
made
• the circumstances in which contributions may be
required
• the assessment of contributions
• the payment of contributions
• the recovery of contributions.
400 Application of Act to county councils
(1) This Act (except Part 1 and Divisions 1 and 2 of Part 2 of Chapter
9, Chapter 10, section 365 and the provisions of Chapter 15 concerning the
making and levying of ordinary rates) applies:(a) to county councils in the same way as it applies to councils,
and
(b) to the members of county councils in the same way as it applies to
the councillors of councils,
with such exceptions and modifications (if any) as the regulations may
provide.
(2) In the application of this Act to county councils and members of
county councils:(a) a reference to the mayor of a council includes a reference to the
chairperson of a county council, and
(b) a reference to mayoral office includes a reference to the office
of the chairperson of a county council, and
(c) a reference to a councillor includes a reference to a member of a
county council.
400AA Special provisions relating to Cudgegong (Abattoir)
County Council
Schedule 9 has effect.
400A (Repealed)
Part 6 Public-private partnerships
Division 1 Preliminary
400B Definitions
(1) For the purposes of this Act, a public-private
partnership means an arrangement:(a) between a council and a private person to provide public
infrastructure or facilities (being infrastructure or facilities in respect of
which the council has an interest, liability or responsibility under the
arrangement), and
(b) in which the public infrastructure or facilities are provided in
part or in whole through private sector financing, ownership or
control,
but does not include any such arrangement if it is of a class that has
been excluded from the operation of this Part by the
regulations.
(1A) For the purposes of subsection (1), the provision of public
infrastructure or facilities includes the delivery of services during the
carrying out of any project under the public-private
partnership.
(2) In this Part:arrangement
includes a contract or understanding (whether or not involving the formation
of an entity).
entity means any
partnership, trust, corporation, joint venture, syndicate or other body
(whether or not incorporated).
PPP
guidelines means the guidelines in force from time to time under
section 400C.
private
person means any person other than:
(a) the Government (including the State, the Crown and a Minister of
the Crown), or
(b) a public or local authority (including a council or a State owned
corporation), or
(c) a public sector employee or other person or body acting in an
official capacity on behalf of the Government or a public or local
authority.
relevant
council, in relation to public-private partnership or proposed
public-private partnership, means the council that has entered into, or is
proposing to enter into, the partnership.
significant
project means:
(a) any project with an estimated total cost of more than $50 million
or such other amount as may be prescribed by the regulations,
or
(b) any project in respect of which the relevant council’s
financial contribution, or its equity position, amounts to 25% or more of the
council’s annual revenue that is lawfully available for spending on
facilities or services of the kind to which the project
relates.
(3) In determining a relevant council’s financial contribution
or equity position in relation to a project for the purposes of this Part, all
elements of the project that the council provides are to be taken into
account, including land value, the provision of non-monetary goods and
services and any costs associated with the council’s contractual
liability in the event of the council incurring a loss under the
project.
(4) For the purposes of this Part, a project under a public-private
partnership that is carried out in stages is to be treated as a single
project. The PPP guidelines may also specify other circumstances in which
related projects carried out under a public-private partnership are to be
treated as a single project for the purposes of this
Part.
400C Guidelines to be followed by councils in relation to
public-private partnerships
(1) The Director-General may from time to time issue guidelines
requiring specified procedures and processes to be followed by councils in
relation to entering into, and carrying out projects under, public-private
partnerships.
(2) Without limitation, the PPP guidelines may contain provisions
requiring:(a) feasibility and risk assessment, and
(b) the identification of appropriate governance and administrative
arrangements (including appropriate management structures and auditing
requirements), and
(c) the undertaking of on-going risk management measures,
and
(d) due diligence in the carrying out of projects under public-private
partnerships.
400D Ancillary provisions relating to PPP
guidelines
(1) The PPP guidelines are to be made available to councils in such
manner as the Director-General thinks appropriate.
(2) The Director-General may from time to time amend or replace the
PPP guidelines.
Division 2 Restrictions relating to public-private
partnerships
400E General requirements
(1) A council must not:(a) enter into a public-private partnership, or
(b) carry out any project under a public-private
partnership,
except in accordance with this Part.
(2) Without limiting subsection (1), a council is required to comply
with the PPP guidelines at all times while carrying out a project under a
public-private partnership.
400F Council to provide assessment of PPP project to
Director-General
(1) A council must not enter into a public-private partnership unless
the council has provided the Director-General with an assessment of the
project to be carried out under the partnership.
(2) In providing such an assessment, the general manager of the
council is required to certify that it has been prepared in accordance with
the PPP guidelines.
(3) If:(a) the project to be carried out under the public-private partnership
is a significant project, or
(b) the Director-General is of the opinion, having regard to the
criteria specified in the PPP guidelines, that the project has a high
risk,
the Director-General is to advise the council that the project is
required to be referred to the Project Review Committee for
review.
(4) If the Director-General advises the council that the project is
not required to be referred to the Project Review Committee, the council is
entitled:(a) subject to obtaining the Minister’s consent under section
358 (1) (a), to enter into the public-private partnership,
and
(b) subject to this Division, to carry out the project that is the
subject of the assessment.
400G Minister may require PPP project to be referred to
Project Review Committee
(1) The Minister may direct a council to refer any project that is to
be carried out, or is being carried out, under a public-private partnership to
the Project Review Committee for review.
(2) Any such direction:(a) may be given at any stage in the process of entering into the
public-private partnership or in the carrying out of the project under the
partnership, and
(b) must be complied with by the council.
(3) A direction may be given under this section only if the Minister
is of the opinion that the council concerned has not complied with the PPP
guidelines in relation to entering into the public-private partnership or
carrying out the project.
400H Director-General may require council to provide
assessment of varied PPP project
(1) If the Director-General is of the opinion that a project that is
to be carried out, or is being carried out, under a public-private partnership
has been, or is proposed to be, varied in a significant manner, the
Director-General may require the relevant council to provide the
Director-General with an assessment of the project as varied or proposed to be
varied. Section 400F (2) applies in relation to any such
assessment.
(2) If the Director-General is of the opinion that the project has or
will become:(a) a significant project, or
(b) a high risk project (having regard to the criteria specified in
the PPP guidelines),
the Director-General is to advise the council that the project is
required to be referred to the Project Review Committee for
review.
(3) The relevant council must comply with a direction under subsection
(1).
400I Review of PPP project by Project Review
Committee
(1) If a project is required or directed to be referred to the Project
Review Committee for review, the relevant council must not enter into a
public-private partnership to carry out the project, or proceed with the
carrying out of the project under a public-private partnership, unless:(a) the relevant council has provided the Project Review Committee
with an assessment of the project in accordance with the PPP guidelines,
and
(b) the Project Review Committee has reviewed the project and is
satisfied that the requirements of the PPP guidelines have been complied with
in relation to the project.
(2) The relevant council has the responsibility of demonstrating to
the Project Review Committee, in conducting its review of the project, that
the requirements of the PPP guidelines have been complied with in relation to
the project.
(3) If the Project Review Committee advises the council that the
Committee is satisfied that the requirements of the PPP guidelines have been
complied with in relation to the project, the council is entitled:(a) to enter into the public-private partnership (if it has not
already entered into it), or
(b) subject to this Division, to proceed with the carrying out of the
project.
(4) The Project Review Committee’s decision as to whether or not
the relevant council has complied with the requirements of the PPP guidelines
in relation to a project is final and cannot be reviewed by any court or
tribunal.
Division 3 Local Government Project Review
Committee
400J Establishment and constitution of Project Review
Committee
(1) A Local Government Project Review Committee is
established.
(2) The Project Review Committee is to consist of the following
members:(a) the Director-General (or an officer of the Department nominated by
the Director-General) who is to be the chairperson of the
Committee,
(b) the Secretary of the Treasury (or an officer of the Treasury
nominated by the Secretary),
(c) the Director-General of the Department of Premier and Cabinet (or
an officer of that Department nominated by that
Director-General),
(d) (Repealed)
(e) the Director-General of the Department of Planning (or an officer
of that Department nominated by the Director-General of that
Department),
(f) such other persons as may be appointed by the Director-General for
the purposes of enabling the Project Review Committee to exercise its
functions.
(3) The appointment by the Director-General of persons as members of
the Project Review Committee under subsection (2) (f) is to be made on the
basis of the nature, or subject-matter, of the project that is before the
Committee for review. In doing so, the Director-General is to ensure that any
person appointed as a member has the relevant expertise to enable the
Committee to properly exercise its functions in relation to the project
concerned.
(4) Without limiting subsection (3), the Director-General may appoint
persons from the private sector as members of the Project Review
Committee.
(5) The Project Review Committee has such functions as are conferred
or imposed on it by or under this or any other Act.
(6) Schedule 3 has effect with respect to the members and procedure of
the Project Review Committee.
Division 4 Miscellaneous provisions
400K Compensation not payable
(1) Compensation is not payable by or on behalf of the State arising
directly or indirectly from any of the following matters occurring before or
after the commencement of this Part:(a) the enactment of the Local
Government Amendment (Public-Private Partnerships) Act 2004 or
the operation of this Part,
(b) the exercise by the Minister, an officer of the Department or a
member of the Project Review Committee of any function under this Part
(including any failure or delay in exercising any such
function),
(c) any statement or conduct in connection with public-private
partnerships or this Part.
(2) Compensation is not payable by a council to any private person as
a consequence of the council being prevented, by the operation of this Part,
from entering into a public-private partnership or from carrying out a project
under a public-private partnership.
(3) However, subsection (2) does not apply in relation to a council if
the public-private partnership concerned is a partnership referred to in
section 400N (2).
(4) In this section:compensation
includes damages or any other form of monetary compensation.
conduct includes
any act or omission, whether unconscionable, misleading, deceptive or
otherwise.
statement
includes a representation of any kind, whether made verbally or in writing and
whether negligent, false or misleading or otherwise.
the
State means the Crown within the meaning of the Crown Proceedings Act 1988, and
includes an officer, employee or agent of the Crown or any member of the
Project Review Committee.
400L Decision by council to enter into public-private
partnership
Any decision by a council in relation to entering into a
public-private partnership may only be made by resolution of the
council.
400M No contracting out
This Part applies regardless of the terms of any arrangement
between a council and a private person.
400N Application of Part
(1) This Part does not apply to any public-private partnership that a
council resolved, before 28 June 2004, to enter
into.
(2) However, if a council resolved, on or after 28 June 2004 but
before the commencement of this Part, to enter into a public-private
partnership, this Part applies to and in respect of the
partnership.
Chapter 13 How are councils made accountable for their
actions?
Introduction. This Chapter sets out the mechanisms by which a council is made
accountable for its actions.Each local government area must have a community strategic plan
developed by the council for the future of the local community covering a
period of at least 10 years. To support the community strategic plan, a
council must have a long-term resourcing strategy that includes long-term
financial planning, workforce management planning and asset management
planning.
Councils have a custodial role in developing and monitoring the
community strategic plan for the local government area on behalf of their
communities. Achieving the strategic objectives in the community strategic
plan may involve other partners including State government agencies,
non-government organisations and other community groups and
individuals.
A council must have a delivery program that details the principal
activities to be undertaken by the council in order to achieve the objectives
established by the community strategic plan that it is responsible for. A
council must establish a new delivery program after each ordinary
election.
Before the beginning of each year a council must adopt an
operational plan that includes a statement of the council’s revenue
policy and the activities to be engaged in by the council during the year.
Public notice is to be given by the council of its operational
plan.
A council is required to have 2 funds (a consolidated fund and a
trust fund). It must keep proper accounts, which are to be audited
annually.
Each year a council is required to prepare an annual report to its
community on its work and activities.
Councils are directly accountable to the residents and ratepayers
in their local government area. The Minister has a supervisory role in
relation to councils. The Minister and the Director-General are able to
request further information from councils, and the Director-General is able to
authorise persons to investigate and report on matters connected with a
council’s work and activities and to direct a council to act on any
recommendations contained in such a report.
Members of the general public are entitled to inspect a wide range
of council documents (see section 12). Members of the general public are also
entitled, under the Government Information
(Public Access) Act 2009, to be given access to certain other
documents held by a council. They are also entitled, under the Privacy and Personal Information Protection Act
1998, to require the correction of certain kinds of
information in the event that the information is incomplete, incorrect, out of
date or misleading.
Part 1 Preliminary
401 Application of Chapter
This Chapter applies to the functions conferred or imposed on a
council by or under this or any other Act or law.Note. Examples of functions conferred or imposed on councils by or under
other Acts are set out in the Note to section 22.
Part 2 Strategic planning
402 Community strategic plan
(1) Each local government area must have a community strategic plan
that has been developed and endorsed by the council. A community strategic
plan is a plan that identifies the main priorities and aspirations for the
future of the local government area covering a period of at least 10 years
from when the plan is endorsed.
(2) A community strategic plan is to establish strategic objectives
together with strategies for achieving those
objectives.
(3) The council must ensure that the community strategic plan:(a) addresses civic leadership, social, environmental and economic
issues in an integrated manner, and
(b) is based on social justice principles of equity, access,
participation and rights, and
(c) is adequately informed by relevant information relating to civic
leadership, social, environmental and economic issues, and
(d) is developed having due regard to the State government’s
State Plan and other relevant State and regional plans of the State
government.
(4) The council must establish and implement a strategy (its community
engagement strategy), based on social justice principles, for
engagement with the local community when developing the community strategic
plan.
(5) Following an ordinary election of councillors, the council must
review the community strategic plan before 30 June following the election. The
council may endorse the existing plan, endorse amendments to the existing plan
or develop and endorse a new community strategic plan, as appropriate to
ensure that the area has a community strategic plan covering at least the next
10 years.
(6) A draft community strategic plan or amendment of a community
strategic plan must be placed on public exhibition for a period of at least 28
days and submissions received by the council must be considered by the council
before the plan or amendment is endorsed by the
council.
(7) Within 28 days after a community strategic plan is endorsed, the
council must post a copy of the plan on the council’s website and
provide a copy to the Director-General. A copy of a community strategic plan
may be provided to the Director-General by notifying the Minister of the
appropriate URL link to access the plan on the council’s
website.
403 Resourcing strategy
(1) A council must have a long-term strategy (called its resourcing
strategy) for the provision of the resources required to implement
the strategies established by the community strategic plan that the council is
responsible for.
(2) The resourcing strategy is to include long-term financial
planning, workforce management planning and asset management
planning.
404 Delivery program
(1) A council must have a program (its delivery program)
detailing the principal activities to be undertaken by the council to
implement the strategies established by the community strategic plan within
the resources available under the resourcing
strategy.
(2) The delivery program must include a method of assessment to
determine the effectiveness of each principal activity detailed in the
delivery program in implementing the strategies and achieving the strategic
objectives at which the principal activity is
directed.
(3) The council must establish a new delivery program after each
ordinary election of councillors to cover the principal activities of the
council for the 4-year period commencing on 1 July following the
election.
(4) A draft delivery program must be placed on public exhibition for a
period of at least 28 days and submissions received by the council must be
considered by the council before the delivery program is adopted by the
council.
(5) The general manager must ensure that regular progress reports are
provided to the council reporting as to its progress with respect to the
principal activities detailed in its delivery program. Progress reports must
be provided at least every 6 months.
405 Operational plan
(1) A council must have a plan (its operational plan)
that is adopted before the beginning of each year and details the activities
to be engaged in by the council during the year as part of the delivery
program covering that year.
(2) An operational plan must include a statement of the
council’s revenue policy for the year covered by the operational plan.
The statement of revenue policy must include the statements and particulars
required by the regulations.
(3) A council must prepare a draft operational plan and give public
notice of the draft indicating that submissions may be made to the council at
any time during the period (not less than 28 days) that the draft is to be on
public exhibition. The council must publicly exhibit the draft operational
plan in accordance with the notice.
(4) During the period of public exhibition, the council must have for
inspection at its office (and at such other places as it may determine) a map
that shows those parts of its area to which each category and sub-category of
the ordinary rate and each special rate included in the draft operational plan
applies.
(5) In deciding on the final operational plan to be adopted, a council
must consider any submissions that have been made concerning the draft
plan.
(6) The council must post a copy of its operational plan on the
council’s website within 28 days after the plan is
adopted.
406 Integrated planning and reporting guidelines
(1) The Director-General is to establish integrated planning and
reporting guidelines (referred to in this Chapter as the guidelines) for
the purposes of this Chapter.
(2) The guidelines can impose requirements in connection with the
preparation, development and review of, and the contents of, the community
strategic plan, resourcing strategy, delivery program, operational plan,
community engagement strategy, annual report and state of the environment
report of a council.
(3) In particular (but without limiting subsection (2)), the
guidelines can impose requirements in relation to any of the following:(a) the procedures to be followed in the preparation, development or
review of plans, strategies, programs and reports,
(b) the matters to be addressed or provided for by plans, strategies,
programs and reports,
(c) requirements for consultation in connection with the preparation,
development or review of plans, strategies and programs,
(d) the matters to be taken into account or to which regard is to be
had in connection with the preparation, development or review of plans,
strategies, programs and reports.
(4) A council must ensure that the requirements of the guidelines are
complied with.
(5) The guidelines can include other material for the guidance of
councils in connection with the plans, strategies, programs and reports to
which this section applies.
(6) The Director-General may review and amend the guidelines from time
to time.
(7) The guidelines and any amendment of the guidelines must be posted
on the Department’s website and notified in writing to each council by
the Director-General.
407 (Repealed)
Part 3 Financial management
Division 1 Funds
408 The council’s funds
A council must have 2 separate funds:• a consolidated fund
• a trust fund.
409 The consolidated fund
(1) All money and property received by a council must be held in the
council’s consolidated fund unless it is required to be held in the
council’s trust fund.
(2) Money and property held in the council’s consolidated fund
may be applied towards any purpose allowed by this or any other
Act.
(3) However:(a) money that has been received as a result of the levying of a
special rate or charge may not be used otherwise than for the purpose for
which the rate or charge was levied, and
(b) money that is subject to the provisions of this or any other Act
(being provisions that state that the money may be used only for a specific
purpose) may be used only for that purpose, and
(c) money that has been received from the Government or from a public
authority by way of a specific purpose advance or grant may not, except with
the consent of the Government or public authority, be used otherwise than for
that specific purpose.
(d) (Repealed)
(4) Pending its expenditure for the purpose for which it is held,
money of the kind referred to in subsection (3) (a), (b) or (c) may not be
held otherwise than in an account with a bank, building society or credit
union or in an investment in which such money is, by or under this or any
other Act, authorised to be invested.
(5) Despite subsections (3) and (4), a council may:(a) deduct, from the money required by subsection (3) to be used only
for the specific purpose of water supply or sewerage services, an amount in
the nature of a return on capital invested payment (dividend),
and
(b) apply that amount towards any purpose allowed for the expenditure
of money by councils by this Act or any other Act.
(6) The Minister for Energy and Utilities, with the concurrence of the
Minister administering this Act:(a) is to cause guidelines to be prepared and published in the Gazette
relating to the management of the provision of water supply and sewerage
services by councils, and
(b) may, if of the opinion that a council has not substantially
complied with the guidelines, direct the council to comply with any particular
aspect of the guidelines before making any further deduction under subsection
(5).
(7) Before making a deduction under subsection (5), a council
must:(a) comply with the guidelines published under subsection (6) and any
direction given under that subsection, and
(b) indicate in an open meeting of the council that the guidelines and
any such direction have been complied with in relation to the making of the
deduction.
(8) Subsections (5)–(7) extend to a council that is a water
supply authority within the meaning of the Water Management Act
2000.
410 Alternative use of money raised by special rates or
charges
(1) This section applies to money that has been received by a council
as a result of the levying of a special rate or a
charge.
(2) If the special rate or charge has been discontinued and the
purpose for which the money was received has been achieved, or is no longer
required to be achieved, any remaining money may be used by the council for
any other purpose if, and only if:(a) a proposal to that effect has been included in a draft operational
plan for the current year or for a previous year, and
(b) public notice of the fact that the proposal was included in the
operational plan adopted by the council for that year has been published in a
newspaper.
(3) Money that is not yet required for the purpose for which it was
received may be lent (by way of internal loan) for use by the council for any
other purpose if, and only if, its use for that other purpose is approved by
the Minister.
(4) In granting such an approval, the Minister must impose conditions
as to the time within which the internal loan must be repaid and as to any
additional amount, in the nature of interest, that is to be paid in connection
with that loan.
411 The trust fund
(1) All money and property received by a council in trust must be held
in the council’s trust fund.
(2) Money or property held in the council’s trust fund must be
applied for the purposes, or in accordance with the trusts, relating to
it.
Division 2 Accounting records, financial reports and
auditing
412 Accounting records
(1) A council must keep such accounting records as are necessary to
correctly record and explain its financial transactions and its financial
position.
(2) In particular, a council must keep its accounting records in a
manner and form that facilitate:(a) the preparation of financial reports that present fairly its
financial position and the results of its operations, and
(b) the convenient and proper auditing of those
reports.
413 Preparation of financial reports
(1) A council must prepare financial reports for each year, and must
refer them for audit as soon as practicable (having regard to the requirements
of section 416 (1)) after the end of that year.Note. Under section 416 (1), a council’s financial reports for a
year must be prepared and audited within 4 months after the end of the year
concerned, and under section 428 (2) (a) the audited financial reports must be
included in the council’s annual report.
(2) A council’s financial reports must include:(a) a general purpose financial report, and
(b) any other matter prescribed by the regulations,
and
(c) a statement in the approved form by the council as to its opinion
on the general purpose financial report.
(3) The general purpose financial report must be prepared in
accordance with this Act and the regulations and the requirements of:(a) the publications issued by the Australian Accounting Standards
Board, as in force for the time being, subject to the regulations,
and
(b) such other standards as may be prescribed by the
regulations.
(4) (Repealed)
414 (Repealed)
415 Auditing of financial reports
(1) A council’s auditor must audit the council’s financial
reports as soon as practicable (having regard to the requirements of section
416 (1)) after they are referred for audit.
(2) A council’s financial reports must be audited in accordance
with the requirements of:(a) the publications issued by the Australian Accounting Research
Foundation, on behalf of the Australian Society of Certified Practising
Accountants and the Institute of Chartered Accountants in Australia, under the
titles Statements of Auditing
Standards and Statements of
Auditing Practice, as in force for the time being, subject to
the regulations, and
(b) such other standards as may be prescribed by the
regulations.
(3) The regulations may prescribe matters that an auditor must
consider and provide comment on in auditing a council’s financial
reports.
416 Time for preparation and auditing of financial
reports
(1) A council’s financial reports for a year must be prepared
and audited within the period of 4 months after the end of that
year.
(2) A council may from time to time apply to the Director-General for
an extension of that period.
(3) A council must make such an application if requested to do so by
its auditor.
(4) Before deciding whether or not to grant an extension, the
Director-General may require the council to give reasons, additional to those
set out in the application, as to why the extension should be
granted.
(5) The Director-General may grant an extension of such period as, in
the opinion of the Director-General, is necessary in the particular
circumstances of the case.
(6) A council must notify its auditor of any application for an
extension made under this section and of the outcome of the
application.
417 Auditor’s reports
(1) A council’s auditor must prepare 2 reports:• a report on the general purpose financial
report
• a report on the conduct of the audit.
(2) The report on the council’s financial reports must include
the following:(a) a statement as to whether, in the opinion of the auditor, the
council’s accounting records have been kept in accordance with the
requirements of this Division,
(b) a statement as to whether, in the opinion of the auditor, the
council’s financial reports:(i) have been prepared in accordance with the requirements of this
Division, and
(ii) are consistent with the council’s accounting records,
and
(iii) present fairly the council’s financial position and the
results of its operations,
(c) a statement as to whether, in the opinion of the auditor, any
information relevant to the conduct of the audit has been unobtainable by the
auditor,
(d) a statement setting out particulars of any material deficiency in
the accounting records or financial reports that has come to light in the
course of the audit.
(3) The report on the conduct of the audit may contain such
statements, comments and recommendations as to the conduct of the audit of the
council’s financial reports as the auditor considers appropriate to
include in the report.
(4) As soon as practicable after completing the audit, the auditor
must send a copy of the auditor’s reports to the Director-General and to
the council.
(5) As soon as practicable after receiving the auditor’s
reports, the council must send a copy of the auditor’s report on the
council’s financial reports, together with a copy of the council’s
audited financial reports, to the Director-General and to the Australian
Bureau of Statistics.
418 Public notice to be given of presentation of financial
reports
(1) As soon as practicable after a council receives a copy of the
auditor’s reports:(a) it must fix a date for the meeting at which it proposes to present
its audited financial reports, together with the auditor’s reports, to
the public, and
(b) it must give public notice of the date so
fixed.
(2) The date fixed for the meeting must be at least 7 days after the
date on which the notice is given, but not more than 5 weeks after the
auditor’s reports are given to the council.Note. Unless an extension is granted under section 416, the meeting must
be held on or before 5 December after the end of the year to which the reports
relate.
(3) The public notice must include:(a) a statement that the business of the meeting will include the
presentation of the audited financial reports and the auditor’s reports,
and
(b) a summary, in the approved form, of the financial reports,
and
(c) a statement to the effect that any person may, in accordance with
section 420, make submissions (within the time provided by that section and
specified in the statement) to the council with respect to the council’s
audited financial reports or with respect to the auditor’s
reports.
(4) Copies of the council’s audited financial reports, together
with the auditor’s reports, must be kept available at the office of the
council for inspection by members of the public on and from the date on which
public notice of the holding of the meeting is given and until the day after
the meeting (or any postponement of the meeting).
419 Presentation of the council’s financial
reports
(1) A council must present its audited financial reports, together
with the auditor’s reports, at a meeting of the council held on the date
fixed for the meeting.
(2) The council’s auditor may, and if so required in writing by
the council must, attend the meeting at which the financial reports are
presented.
420 Submissions on financial reports and auditor’s
reports
(1) Any person may make submissions to the council with respect to the
council’s audited financial reports or with respect to the
auditor’s reports.
(2) A submission must be in writing and must be lodged with the
council within 7 days after the date on which those reports are presented to
the public.
(3) The council must ensure that copies of all submissions received by
it are referred to the auditor.
(4) The council may take such action as it considers appropriate with
respect to any such submission, including the giving of notice to the
Director-General of any matter that appears to require amendment of the
council’s financial reports.
421 Interim reports
(1) A council’s auditor may, at any time during the audit of a
council’s financial reports, report to the Minister on any matter
relating to those reports or to the conduct of the
audit.
(2) The auditor must give the council a copy of any report made to the
Minister under this section.
Division 3 Auditors
422 Appointment of auditors
(1) A council must appoint a person as its
auditor.
(2) A council’s auditor may be:(a) an individual who is a registered company auditor,
or
(b) a partnership whose members or employees include a registered
company auditor, or
(c) a corporation whose employees include a registered company
auditor.
(3) If the council’s auditor is a partnership, any member or
employee of the partnership may act as the council’s auditor as long as
he or she is a registered company auditor.
(4) If the council’s auditor is a corporation, any employee of
the corporation may act as the council’s auditor as long as he or she is
a registered company auditor.
(5) An auditor may not be appointed or reappointed unless tenders for
the appointment or reappointment have been called.
(6) In this section, registered
company auditor has the same meaning as it has in the Corporations Act 2001 of the Commonwealth
and includes the Auditor-General.
423 Disqualified persons
(1) A person may not be appointed as a council’s auditor:(a) in the case of an individual, if he or she is a disqualified
person, or
(b) in the case of a partnership, if any member or employee of the
partnership is a disqualified person, or
(c) in the case of a corporation, if the corporation or any employee
of the corporation is a disqualified person.
(2) In this section, disqualified
person means a person:(a) who is a councillor or an employee of the council,
or
(b) who is in debt to the council otherwise than for rates or charges
owed by the person as a ratepayer, or
(c) who has a contractual arrangement with the council that (if the
person were the council’s auditor) might reasonably be seen to give rise
to a conflict between the person’s duties as an auditor and the
person’s interests under the arrangement.
424 Auditor’s term of office
(1) A council’s auditor holds office for 6 years and, if
otherwise qualified, is eligible for re-appointment subject to this
section.
(2) The office of auditor becomes vacant if the auditor:(a) dies, or
(b) completes a term of office and is not re-appointed,
or
(c) ceases to be qualified to hold office as auditor or becomes a
disqualified person within the meaning of section 423, or
(d) resigns office by notice in writing addressed to the council,
or
(e) becomes a mentally incapacitated person, or
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her creditors
or makes an assignment of his or her remuneration for their benefit,
or
(g) is convicted in New South Wales of an offence that is punishable
by imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be an
offence so punishable, or
(h) is removed by the council in accordance with this
section.
(3) The council may remove an auditor from office only with the
consent of the Minister.
(4) If the office of auditor becomes vacant, the council must appoint
a qualified person to fill the vacancy.
425 Auditor-General to be auditor in certain
instances
(1) The Auditor-General is authorised to audit a council’s
financial reports if the council fails to appoint an auditor or during any
vacancy in the office of auditor.
(2) The costs certified by the Auditor-General as having been incurred
by the Auditor-General in auditing a council’s financial reports in
accordance with the authorisation given by this section must be paid by the
council.
426 Auditor may exercise general power of inspecting
accounting records
(1) A council’s auditor:(a) may inspect the council’s accounting records and other
records necessary in order to carry out the auditor’s functions at any
time, and
(b) must inspect those records at such periods as may be prescribed by
the regulations,
for the purpose of forming an opinion as to whether the requirements of
this Act and the regulations are being complied
with.
(2) The auditor may report to the council or to the Minister on the
results of the inspection.
(3) Such a report may deal with such matters concerning the
council’s accounting and other records as, in the auditor’s
opinion, should be dealt with by the report.
(4) The auditor must give the council a copy of any report made under
this section to the Minister.
427 Powers of auditor
(1) When exercising the functions conferred on a council’s
auditor by this Part, a council’s auditor is entitled at all reasonable
times to full and free access to the council’s accounting records and
other records necessary in order to carry out the auditor’s functions
and may direct a councillor, the general manager or any other member of staff
of the council:(a) to produce to the auditor any document relating to those records
that is in that person’s custody or under that person’s control,
or
(b) to grant to the auditor such authorities as may be necessary to
enable the auditor to gain access to any document relating to those records
that is in the custody or control of any bank, building society, credit union
or other person, or
(c) to answer any question,
being a document or question that, in the opinion of the auditor, is
relevant to the carrying out of the auditor’s
functions.
(2) An auditor may make copies of or take extracts from any document
to which the auditor gains access under this
section.
Part 4 Annual reports
428 Annual reports
(1) Within 5 months after the end of each year, a council must prepare
a report (its annual
report) for that year reporting as to its achievements in
implementing its delivery program and the effectiveness of the principal
activities undertaken in achieving the objectives at which those principal
activities are directed.
(2) The annual report in the year in which an ordinary election of
councillors is to be held must also report as to the council’s
achievements in implementing the community strategic plan over the previous 4
years.
(3) An annual report must be prepared in accordance with the
guidelines under section 406.
(4) An annual report must contain the following:(a) a copy of the council’s audited financial reports prepared
in accordance with the Local Government Code of
Accounting Practice and Financial Reporting published by the
Department, as in force from time to time,
(b) such other information as the regulations or the guidelines under
section 406 may require.
(5) A copy of the council’s annual report must be posted on the
council’s website and provided to the Minister and such other persons
and bodies as the regulations may require. A copy of a council’s annual
report may be provided to the Minister by notifying the Minister of the
appropriate URL link to access the report on the council’s
website.
428A State of the environment reports
(1) The annual report of a council in the year in which an ordinary
election of councillors is to be held must include a report (a state of the
environment report) as to the state of the environment in the local
government area in relation to such environmental issues as may be relevant to
the objectives for the environment established by the community strategic plan
(the environmental
objectives).
(2) A state of the environment report must be prepared in accordance
with the guidelines under section 406.
(3) The state of the environment report is to:(a) establish relevant environmental indicators for each environmental
objective, and
(b) report on, and update trends in, each such environmental
indicator, and
(c) identify all major environmental impacts (being events and
activities that have a major impact on environmental
objectives).
(4) A state of the environment report for a council’s area may
be prepared as part of and for the purposes of a state of the environment
report for a larger area (such as a region or a catchment management area) and
a report for the larger area that includes the required information in respect
of the council’s area may be included in the council’s annual
report as the council’s state of the environment
report.
Part 5 Inquiries, reviews and surcharging
Division 1 Inquiries and reviews
429 Minister or Director-General may require councils to
provide information
(1) The Minister or the Director-General may at any time require a
council to provide such information concerning the council or its work and
activities as the Minister or the Director-General may
determine.
(2) A council must provide the information within such period as is
specified by the Minister or Director-General.
(3) The information that a council may be required to provide under
this section includes:(a) information concerning any auditor’s report,
and
(b) information concerning any other report provided to the council
with respect to the council or its work and activities,
and
(c) information as to any factors (of the kind referred to in section
263 (3)) that are relevant to a proposal referred to in Division 2 or 2B of
Part 1 of Chapter 9.
429A Complaints about councils, councillors, delegates and
staff
(1) A public official within the meaning of the Public Interest Disclosures Act
1994 may complain to the Director-General about the conduct of
any one or more of the following:(a) a council,
(b) a delegate of a council,
(c) a councillor,
(d) a member of staff of a council.
(2) A complaint may be made orally or in
writing.
(3) The Director-General may deal with a complaint made under this
section:(a) by means of an investigation authorised under section 430,
or
(b) in such other manner as the Director-General considers
appropriate.
430 Director-General may authorise investigation of councils
etc
(1) The Director-General may, at the request of the Minister or on the
Director-General’s own initiative, authorise any person (referred to in
this Part as a Departmental
representative) to investigate any aspect of a council or of its
work and activities.
(2) An authority may be given generally or in respect of a particular
matter.
(3) The functions of a Departmental representative are as set out in
the authority.
(4) The Director-General is, by virtue of holding office as
Director-General, a Departmental representative with power to investigate all
matters.
431 Powers of Departmental
representatives—generally
(1) For the purpose of exercising his or her functions, a Departmental
representative may direct a person to do any one or more of the
following:(a) to appear personally before the Departmental representative at a
time and place specified in the direction,
(b) to give evidence (including evidence on oath),
(c) to produce to the Departmental representative any document that is
in that person’s custody or under that person’s
control,
(d) to grant to the Departmental representative such authorities as
may be necessary to enable the Departmental representative to gain access to
any document that is in the custody or under the control of any bank, building
society, credit union or other person.
(2) For the purposes of this section, a Departmental representative
may administer an oath.
(3) A Departmental representative may take copies of or extracts from
any document to which the Departmental representative gains access under this
section.
432 Entry on to premises
Part 2 of Chapter 8 applies, in relation to the functions of a
Departmental representative, to the Director-General and a Departmental
representative in the same way as it applies to a council and a council
employee (or other person) authorised by the council.
433 Report of investigation
(1) A Departmental representative must report to the Minister and the
Director-General on the results of the investigation and must send a copy of
the report to the council.
(2) The report may comment on any matter which, in the Departmental
representative’s opinion, warrants special mention and may contain such
recommendations as the Departmental representative considers
appropriate.
(3) A report furnished to the council under this section must be
presented at the next meeting of the council after the report is
received.
(4) Section 14B of the Royal
Commissions Act 1923 applies in relation to any report that
the Minister wishes to lay before both Houses of Parliament in the same way as
it applies to a report made by a commission under that
Act.
434 Council’s response to report
(1) A council must, within 40 days after presentation to it of a
Departmental representative’s report, give written notice to the
Minister of the things done or proposed to be done to give effect to any
recommendations contained in the report.
(2) The Minister may:(a) after receiving the council’s notice, or
(b) after the 40-day period,
whichever is the earlier, order the council to do such things or to
refrain from doing such things arising from the recommendations contained in
the report as are specified in the order.
(3) A council must comply with the Minister’s
order.
(4) An order under this section may state that a failure to comply
with the order may lead to legal proceedings being taken to enforce
compliance.
434A Council’s response to Ombudsman’s
report
(1) The Minister may order a council to present a copy of a report
made by the Ombudsman under section 26 of the Ombudsman Act 1974 concerning the
conduct of the council (together with a copy of the Minister’s order) at
the next meeting of the council occurring after the order is
made.
(2) The council must, within 40 days after the presentation of the
Ombudsman’s report and the Minister’s order, give written notice
to the Minister of the things done or proposed to be done to give effect to
any recommendations contained in the report.
(3) At any time after receiving the council’s notice or the
expiration of the 40-day period (whichever is the earlier) the Minister may
order the council to do such things or to refrain from doing such things
arising from the recommendations contained in the Ombudsman’s report as
are specified in the order.
(4) The council must comply with any order made by the Minister under
this section.
(5) An order under this section may state that a failure to comply
with the order may lead to legal proceedings being taken to enforce
compliance.
(6) Nothing in this section affects any other obligation of the
council in respect of the Ombudsman’s report under the Ombudsman Act
1974.
434B Expenses to be borne by council
(1) The Director-General may recover the reasonable expenses incurred
by the Director-General in, or in respect of, the preparation of a
Departmental representative’s report under this Division that relates to
the administration of an election by a general manager, including
investigation expenses of the Director-General or the Departmental
representative.
(2) The Director-General may make a determination of the amount of the
expenses referred to in subsection (1) and serve a notice on the council
requiring the amount so determined be paid in recovery of the
expenses.
(3) An amount equal to the expenses as so determined is payable to the
Director-General as a debt by the council concerned, except as determined by
the Director-General.
(4) The council may apply to the Administrative Decisions Tribunal for
a review of whether any part of the expenses so determined are not reasonable
expenses.
(5) The Director-General must give effect to any decision of the
Tribunal on a review of the determination of the amount of the
expenses.
(6) A reference in this section to expenses incurred includes a
reference to remuneration paid to departmental
staff.
Division 2 Surcharging
435 Surcharging by Departmental representative
(1) If satisfied that any expenditure or transfer, or any entry in a
council’s accounts, has been incurred or made in contravention of this
or any other Act or of any regulation in force under this or any other Act, a
Departmental representative may:(a) disallow the expenditure, transfer or entry,
and
(b) surcharge the amount of the disallowance on the councillor, the
general manager or any other member of staff of the council by whom the
expenditure, transfer or entry was incurred or made or ordered to be incurred
or made.
(2) A Departmental representative may also surcharge on a councillor,
the general manager or any other member of staff of the council the amount
of:(a) any deficiency or loss incurred by the council as a consequence of
the negligence or misconduct of the councillor, general manager or member of
staff, or
(b) any money which ought to have been, but has not been, brought into
account by the councillor, general manager or member of
staff.
(3) A Departmental representative may not exercise the powers
conferred by this section unless expressly authorised to do so by the
Director-General.
436 Procedure for surcharging
(1) Before surcharging a person, the Departmental
representative:(a) must cause notice of the proposed surcharge, and of the reasons
for the proposed surcharge, to be given to the person, and
(b) must allow the person a reasonable opportunity to make submissions
to the Departmental representative with respect to the proposed surcharge,
and
(c) must take into consideration any submissions duly made by the
person with respect to the proposed surcharge.
(2) The Departmental representative must certify in the
council’s accounts the amount by which the Departmental representative
has surcharged any person.
(3) Immediately on surcharging an amount on any person, the
Departmental representative must give notice of that fact to the
person.
437 Applications for review by Administrative Decisions
Tribunal
(1) A person who is surcharged under this Division may apply to the
Administrative Decisions Tribunal for a review of the decision to
surcharge.
(2) The council must give effect to any decision of the Tribunal on a
review of the decision to surcharge.
438 Recovery of amount surcharged
(1) The amount of a surcharge becomes payable to the council as a debt
when the time within which an appeal may be made against the surcharge expires
or, if such an appeal is made and the surcharge is not annulled, when that
appeal is finally determined.
(2) Any money recovered in connection with a surcharge relating to a
particular account is to be paid into the fund in which money in that account
is held.
Chapter 14 Honesty and disclosure of interests
Introduction. This Chapter places obligations on councillors, council delegates,
staff of councils and administrators of councils to act honestly and
responsibly in carrying out their functions.The Chapter also provides for the adoption of codes of conduct for
councillors, staff and other persons associated with the functions of councils
and enables the Director-General to investigate and take action against
councillors who engage in misconduct. However, the Chapter does not affect any
other duties imposed by other laws or any offences created by other
laws.
It also requires that pecuniary interests of councillors, council
delegates and other persons involved in making decisions or giving advice on
council matters be publicly recorded and requires councillors and staff to
refrain from taking part in decisions on council matters in which they have a
pecuniary interest.
The Chapter enables any person to make a complaint concerning a
failure to disclose a pecuniary interest and provides for the investigation of
complaints.
The Chapter also establishes the Local Government Pecuniary
Interest and Disciplinary Tribunal.
The Tribunal is empowered to conduct hearings into complaints and
to take disciplinary action against a person if a complaint against the person
is found to be proved.
Part 1 Conduct
Division 1 Conduct generally
439 Conduct of councillors, staff, delegates and
administrators
(1) Every councillor, member of staff of a council and delegate of a
council must act honestly and exercise a reasonable degree of care and
diligence in carrying out his or her functions under this or any other
Act.
(2) Although this section places certain duties on councillors,
members of staff of a council and delegates of a council, nothing in this
section gives rise to, or can be taken into account in, any civil cause of
action.
(3) This section applies to an administrator of a council (other than
an administrator appointed by the Minister for Primary Industries under
section 66) in the same way as it applies to a
councillor.
440 Codes of conduct
(1) The regulations may prescribe a model code of conduct (the
model
code) applicable to councillors, members of staff of councils and
delegates of councils.
(2) Without limiting what may be included in the model code, the model
code may:(a) relate to any conduct (whether by way of act or omission) of a
councillor, member of staff or delegate in carrying out his or her functions
that is likely to bring the council or holders of civic office into disrepute,
and
(b) in particular, contain provisions for or with respect to conduct
specified in Schedule 6A.
(3) A council must adopt a code of conduct (the adopted code)
that incorporates the provisions of the model code. The adopted code may
include provisions that supplement the model code.
(4) A council’s adopted code has no effect to the extent that it
is inconsistent with the model code as in force for the time
being.
(5) Councillors, members of staff and delegates of a council must
comply with the applicable provisions of:(a) the council’s adopted code, except to the extent of any
inconsistency with the model code as in force for the time being,
and
(b) the model code as in force for the time being, to the extent
that:(i) the council has not adopted a code of conduct,
or
(ii) the adopted code is inconsistent with the model code,
or
(iii) the model code contains provisions or requirements not included in
the adopted code.
(6) A provision of a council’s adopted code is not inconsistent
with the model code merely because the provision makes a requirement of the
model code more onerous for persons required to observe the
requirement.
(7) A council must, within 12 months after each ordinary election,
review its adopted code and make such adjustments as it considers appropriate
and as are consistent with this section.
(8) Nothing in this section or such a code gives rise to, or can be
taken into account in, any civil cause of action, but nothing in this section
affects rights or liabilities arising apart from this
section.
(9) This section applies to an administrator of a council (other than
an administrator appointed by the Minister for Primary Industries under
section 66) in the same way as it applies to a
councillor.
440AA Administration of code of conduct
(1) The regulations may prescribe a procedure (the model
procedure) for administering the model code referred to in section
440.
(2) The model procedure is to set out the procedures for dealing with
alleged contraventions of the model code.
(3) A council must adopt a procedure (the adopted
procedure) that incorporates the provisions of the model procedure.
The adopted procedure may include provisions that supplement the model
procedure.
(4) A council’s adopted procedure has no effect to the extent
that it is inconsistent with the model procedure as in force for the time
being.
(5) Councillors, members of staff and delegates of a council must
comply with the applicable provisions of:(a) the council’s adopted procedure, except to the extent of any
inconsistency with the model procedure as in force for the time being,
and
(b) the model procedure as in force for the time being, to the extent
that:(i) the council has not adopted the model procedure,
or
(ii) the adopted procedure is inconsistent with the model procedure,
or
(iii) the model procedure contains provisions or requirements not
included in the adopted procedure.
(6) This section applies to an administrator of a council (other than
an administrator appointed by the Minister for Primary Industries under
section 66) in the same way as it applies to a
councillor.
Division 2 Serious corrupt conduct
440A Definition of “serious corrupt
conduct”
In this Division:serious corrupt
conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act
1988) that may constitute a serious indictable offence,
being:
(a) in the case of conduct of the holder of a civic
office—conduct in connection with the exercise or purported exercise of
the functions of the civic office, or
(b) in the case of conduct of a member of staff of a
council—conduct in connection with exercise or purported exercise of the
duties of the member of staff.
440B Dismissal from civic office for serious corrupt
conduct
(1) The Governor may dismiss a person from civic office and disqualify
the person from holding civic office for a period not exceeding 5 years
if:(a) the Independent Commission Against Corruption, in a report
referred to in section 74C of the Independent Commission Against Corruption Act
1988, recommends that consideration be given to the suspension
of the person from office with a view to his or her dismissal for serious
corrupt conduct, and
(b) the person is suspended from the civic office by the Minister
under this Division, and
(c) the Minister advises the Governor that the dismissal of the person
is necessary in order to protect the public standing of the council concerned
and the proper exercise of its functions.
(2) Before advising the Governor on a dismissal, the Minister is to
give the person a reasonable opportunity to show cause why he or she should
not be dismissed from civic office.
440C Temporary suspension from civic office for serious
corrupt conduct
(1) The Minister may, without notice or inquiry, suspend a person from
civic office:(a) if the Independent Commission Against Corruption, in a report
referred to in section 74C of the Independent Commission Against Corruption Act
1988, recommends that consideration be given to the suspension
of the person from office with a view to his or her dismissal for serious
corrupt conduct, or
(b) if criminal proceedings for serious corrupt conduct are instituted
against the person, or
(c) if the person makes an admission of serious corrupt
conduct.
(2) A person, while suspended from civic office under this
section:(a) is not entitled to exercise any of the functions of the civic
office, and
(b) is not entitled to any fee or other remuneration to which the
person would otherwise be entitled as the holder of the civic
office.
(3) A suspension under this section may be removed by the Minister at
any time.
(4) A suspension under this section is removed in the following
circumstances:(a) if the person is not dismissed from civic office, or criminal
proceedings in connection with the serious corrupt conduct are not instituted,
within 6 months after the suspension,
(b) in the case of a person against whom criminal proceedings are
instituted in connection with the serious corrupt conduct—if the
proceedings are withdrawn or dismissed.
(5) If a suspension is removed, any fee or other remuneration withheld
may (if the Minister so directs) be subsequently paid to the person
concerned.
440D Temporary suspension of staff in connection with serious
corrupt conduct
(1) The general manager may suspend a member of staff of a council
from duty:(a) if the Independent Commission Against Corruption, in a report
referred to in section 74C of the Independent Commission Against Corruption Act
1988, recommends that consideration be given to the suspension
of the member of staff from duty with a view to the institution of
disciplinary or other proceedings against the member of staff for serious
corrupt conduct, or
(b) if criminal proceedings for serious corrupt conduct are instituted
against the member of staff, or
(c) if the member of staff makes an admission of serious corrupt
conduct.
(2) If the general manager so directs, a member of staff, while
suspended from duty under this section, is not entitled to any salary or other
remuneration to which the person would otherwise be entitled as a member of
staff.
(3) A suspension under this section may be removed by the general
manager at any time.
(4) A suspension under this section is removed in the following
circumstances:(a) if disciplinary or criminal proceedings in connection with the
serious corrupt conduct are not instituted within 6 months after the
suspension,
(b) in the case of a member of staff against whom disciplinary or
criminal proceedings are instituted in connection with the serious corrupt
conduct—if the proceedings are withdrawn or
dismissed.
(5) If a suspension is removed, any salary or other remuneration
withheld may (if the general manager so directs) be subsequently paid to the
member of staff.
(6) The Minister may exercise the functions of the general manager
under this section in connection with:(a) conduct of a general manager, or
(b) conduct of any other member of staff (but only if the Minister is
satisfied that the general manager has failed to act under this section
without reasonable cause).
(7) This section does not limit any other power to suspend a member of
staff from duty.
440E Application of Division
This Division applies to serious corrupt conduct, and to criminal
proceedings instituted or admissions made in respect of serious corrupt
conduct, before or after the commencement of this
Division.
Division 3 Misconduct
440F Definitions
(1) In this Division:misconduct of a
councillor means any of the following:
(a) a contravention by the councillor of this Act or the
regulations,
(b) a failure by the councillor to comply with an applicable
requirement of a code of conduct under section 440,
(c) a failure by a councillor to comply with an order issued by the
Director-General under this Division,
(d) an act of disorder committed by the councillor at a meeting of the
council or a committee of the council.
(2) However, a contravention of the disclosure requirements of Part 2
is not misconduct.Note. A contravention of the disclosure requirements of Part 2 is dealt
with under other provisions of this Chapter.
(3) A reference in this Division to misconduct includes a reference to
misconduct that consists of an omission or failure to do
something.
440G Formal censure of councillor for misconduct
(1) A council may by resolution at a meeting formally censure a
councillor for misconduct.
(2) A formal censure resolution may not be passed except by a motion
to that effect of which notice has been duly given in accordance with
regulations made under section 360 and, if applicable, the council’s
code of meeting practice.
(3) A council may pass a formal censure resolution only if it is
satisfied that the councillor has engaged in misconduct on one or more
occasions.
(4) The council must specify in the formal censure resolution the
grounds on which it is satisfied that the councillor should be
censured.
(5) A motion for a formal censure resolution may, without limitation,
be moved on the report of a committee of the council and any such report must
be recorded in the minutes of the meeting of the
council.
440H Director-General may investigate misconduct by a
councillor
(1) The Director-General may conduct an investigation for the purpose
of determining whether a councillor has engaged in
misconduct.
(2) The Director-General may conduct such an investigation:(a) on his or her own initiative, or
(b) if the general manager of a council refers an allegation of
misconduct by a councillor to the Director-General, or
(c) if a council, by resolution, refers an allegation of misconduct by
a councillor to the Director-General, or
(d) if the Ombudsman states in a report that the Ombudsman is
satisfied that a councillor has or may have engaged in misconduct,
or
(e) if the Independent Commission Against Corruption states in a
report that the Commission is satisfied that a councillor has or may have
engaged in misconduct.
(3) For the purpose of an investigation, the Director-General may, by
order in writing served on any relevant person, direct the person to do any
one or more of the following:(a) provide written information, by the date specified in the order,
and to verify the information by statutory declaration,
(b) produce, at a time and place specified in the order, any document
specified in the order that is in the person’s custody or
control.
Note. Failure to comply with the direction is an offence under section
661.
(4) The Director-General may take copies of or extracts from any
document to which the Director-General gains access under this
section.
(5) The Director-General may arrange for a departmental report to be
prepared in relation to an investigation conducted under this
section.
(6) The preparation of a departmental report is a prerequisite to a
decision by the Director-General to take disciplinary action against a
councillor, unless the disciplinary action is taken on the basis of a report
by the Ombudsman or Independent Commission Against
Corruption.
(7) This section authorises reports relating to misconduct to be made
by the Ombudsman or Independent Commission Against Corruption and a reference
to a report of the Ombudsman or Independent Commission Against Corruption is a
reference to a report made to the Director-General under the authority of this
subsection or under any other provision of this or any other
Act.
(8) The powers conferred on the Director-General by this section may
also be exercised for the purposes of determining if an administrator has
engaged in conduct that would be misconduct if the administrator were a
councillor.
(9) In this section:administrator
means an administrator of a council (other than an administrator appointed by
the Minister for Primary Industries under section 66).
relevant
person means a councillor, a member of staff of a council, a
delegate of a council or an administrator.
440I Director-General may take disciplinary action for
misconduct
(1) The Director-General may take disciplinary action against a
councillor if the Director-General is satisfied that:(a) the councillor has engaged in misconduct (whether on the basis of
a departmental report or a report by the Ombudsman or Independent Commission
Against Corruption), and
(b) disciplinary action is warranted.
(2) The Director-General may take one or more of the following actions
(and any such action is disciplinary action):(a) counsel the councillor,
(b) reprimand the councillor,
(c) by order, direct the councillor to cease engaging in the
misconduct,
(d) by order, direct the councillor to apologise for the misconduct in
the manner specified in the order,
(e) by order, direct the councillor to undertake
training,
(f) by order, direct the councillor to participate in
mediation,
(g) by order, suspend the councillor from civic office for a period
not exceeding 3 months,
(h) by order, suspend the councillor’s right to be paid any fee
or other remuneration, to which the councillor would otherwise be entitled as
the holder of the civic office, in respect of a period not exceeding 3 months
(without suspending the councillor from civic office for that
period).
(3) In determining which disciplinary action, if any, to take against
a councillor who has engaged in misconduct, the Director-General may take into
account any previous incidents of misconduct by the councillor, any
disciplinary action previously taken against the councillor and any other
relevant matters.
(4) The Director-General is to notify the councillor of any decision
to take disciplinary action under this section and the reasons for the
decision.
(5) A copy of the decision and the statement of reasons for the
decision are to be provided to the council.
(6) The Director-General is to make any decision to suspend a
councillor from civic office or to suspend a councillor’s right to be
paid any fee or other remuneration under this section, and the statement of
reasons for the decision, publicly available.
(7) The Director-General may make any other decision to take
disciplinary action against a councillor, and the statement of reasons for the
decision, publicly available.
(8) No liability (including liability in defamation) is incurred for
making a decision publicly available as permitted or required by this section
or for publishing in good faith a fair report or summary of such a
decision.
440J Alternatives to disciplinary action by the
Director-General
(1) The Director-General may before, during or after an investigation
into an allegation of misconduct by a councillor decide to take no further
action against the councillor, if satisfied that no further action is
warranted.
(2) The Director-General may, instead of taking disciplinary action
against a councillor:(a) refer the matter to the council concerned with recommendations as
to how the council might resolve the matter, by alternative dispute resolution
or otherwise, or
(b) refer the matter to the Pecuniary Interest and Disciplinary
Tribunal for consideration.
(3) A matter is referred to the Tribunal under this section by means
of a report presented to the Tribunal by the Director-General. A report may
contain or be accompanied by such material and observations as the
Director-General thinks fit.
(4) The Director-General is to notify the councillor concerned of any
decision to refer the matter to the Tribunal.
(5) The regulations may make provision for or with respect to the
reference of matters to the Tribunal under this
section.
440K Suspension of a councillor
(1) A councillor, while suspended from civic office:(a) is not entitled to exercise any of the functions of the civic
office, and
(b) is not entitled to any fee or other remuneration to which he or
she would otherwise be entitled as the holder of the civic
office.
(2) The period of suspension under an order made by the
Director-General commences on the date 7 days after the service of the order
on the councillor or the date specified in the order for the commencement of
the period of suspension, whichever is the later.
440L Appeals against disciplinary action
(1) A councillor against whom disciplinary action is taken by the
Director-General may appeal to the Pecuniary Interest and Disciplinary
Tribunal against the decision of the Director-General to take disciplinary
action.
(2) An appeal must be made within 28 days after the day on which the
councillor is notified of the Director-General’s decision to take
disciplinary action against the councillor.
(3) The Tribunal may stay any decision made by the Director-General
until such time as the Tribunal determines the
appeal.
(4) On hearing the appeal, the Tribunal may:(a) confirm the decision, or
(b) amend the decision, or
(c) set aside the decision and substitute a new
decision.
(5) If a decision is amended or substituted, the decision as amended
or substituted has effect as if it had been made in that form by the
Director-General.
(6) If the Tribunal sets aside a decision to suspend a councillor, any
fee or other remuneration withheld under the suspension is payable to the
councillor.
(7) The regulations may make provision for or with respect to the
making, hearing and determination of appeals under this
section.
440M Expenses to be borne by council
(1) The Director-General may recover from a council the reasonable
expenses incurred by or in respect of the Department in the conduct of an
investigation into a councillor of the council under this
Division.
(2) The Director-General may make a determination of the amount of the
expenses referred to in subsection (1) and serve a notice on the council
requiring the amount so determined be paid in recovery of the
Department’s expenses.
(3) An amount equal to the expenses as so determined is payable to the
Department as a debt by the council concerned, except as determined by the
Director-General.
(4) The council may apply to the Administrative Decisions Tribunal for
a review of whether any part of the expenses so determined are not reasonable
expenses.
(5) The Director-General must give effect to any decision of the
Tribunal on a review of the determination of the amount of the
expenses.
(6) A reference in this section to expenses incurred includes a
reference to remuneration paid to departmental
staff.
440N Investigation of former councillors
(1) The Director-General may conduct an investigation for the purpose
of determining whether a former councillor engaged in misconduct during the
period in which the former councillor was a
councillor.
(2) For that purpose, sections 440H and 440M apply as if a reference
in those sections to a councillor includes a reference to a former
councillor.
(3) The Director-General may before, during or after an investigation
into an allegation of misconduct by a former councillor decide to refer the
matter to the Pecuniary Interest and Disciplinary Tribunal for
consideration.
(4) Section 440J applies to the referral of the matter to the Tribunal
in the same way as it applies to a referral of a matter relating to a
councillor to the Tribunal.
440O Self-incrimination
(1) This section applies where, under section 440H, the
Director-General directs a natural person to provide any information or
produce any document for the purposes of an
investigation.
(2) A person is not excused from complying with the direction on the
ground that the information or document might incriminate the person or make
the person liable to a penalty.
(3) If the information or document tends to incriminate the person and
the person objects to providing the information or producing the document at
the time, the fact of the direction or the information or document itself (if
produced) may not be used in any criminal proceedings against the person
(except in proceedings for an offence relating to the failure to produce a
document or information or the production of a document or information that is
false or misleading).
(4) Despite any such objection, the information or document may be
used in connection with an investigation and the taking of disciplinary action
against the person under this Division and is admissible in proceedings under
this Act relating to misconduct.
440P, 440Q (Repealed)
Part 2 Duties of disclosure
Division 1 Preliminary
441 Who are “designated persons”?
For the purposes of this Chapter, designated
persons are:• the general manager
• other senior staff of the council
• a person (other than a member of the senior staff of the council)
who is a member of staff of the council or a delegate of the council and who
holds a position identified by the council as the position of a designated
person because it involves the exercise of functions under this or any other
Act (such as regulatory functions or contractual functions) that, in their
exercise, could give rise to a conflict between the person’s duty as a
member of staff or delegate and the person’s private
interest
• a person (other than a member of the senior staff of the council)
who is a member of a committee of the council identified by the council as a
committee whose members are designated persons because the functions of the
committee involve the exercise of the council’s functions under this or
any other Act (such as regulatory functions or contractual functions) that, in
their exercise, could give rise to a conflict between the member’s duty
as a member of the committee and the member’s private
interest.
442 What is a “pecuniary interest”?
(1) For the purposes of this Chapter, a pecuniary
interest is an interest that a person has in a matter because of a
reasonable likelihood or expectation of appreciable financial gain or loss to
the person.
(2) A person does not have a pecuniary interest in a matter if the
interest is so remote or insignificant that it could not reasonably be
regarded as likely to influence any decision the person might make in relation
to the matter or if the interest is of a kind specified in section
448.
443 Who has a pecuniary interest?
(1) For the purposes of this Chapter, a person has a pecuniary
interest in a matter if the pecuniary interest is the interest of:(a) the person, or
(b) the person’s spouse or de facto partner or a relative of the
person, or a partner or employer of the person, or
(c) a company or other body of which the person, or a nominee, partner
or employer of the person, is a member.
Note. “De facto partner” is defined in section 21C of the
Interpretation Act
1987.
(2) (Repealed)
(3) However, a person is not taken to have a pecuniary interest in a
matter as referred to in subsection (1) (b) or (c):(a) if the person is unaware of the relevant pecuniary interest of the
spouse, de facto partner, relative, partner, employer or company or other
body, or
(b) just because the person is a member of, or is employed by, a
council or a statutory body or is employed by the Crown,
or
(c) just because the person is a member of, or a delegate of a council
to, a company or other body that has a pecuniary interest in the matter, so
long as the person has no beneficial interest in any shares of the company or
body.
444 What disclosures must be made by a councillor?
A councillor:(a) must prepare and submit written returns of interests in accordance
with section 449, and
(b) must disclose pecuniary interests in accordance with section
451.
445 What disclosures must be made by a designated
person?
A designated person:(a) must prepare and submit written returns of interests in accordance
with section 449, and
(b) must disclose pecuniary interests in accordance with section
459.
446 What disclosures must be made by a member of a council
committee?
A member of a council committee, other than a committee that is
wholly advisory, must disclose pecuniary interests in accordance with section
451.
447 What disclosures must be made by council
advisers?
A person giving advice to the council at a council or council
committee meeting must disclose pecuniary interests in accordance with section
456.
448 What interests do not have to be disclosed?
The following interests do not have to be disclosed for the
purposes of this Part:(a) an interest as an elector,
(b) an interest as a ratepayer or person liable to pay a
charge,
(c) an interest in any matter relating to the terms on which the
provision of a service or the supply of goods or commodities is offered to the
public generally, or to a section of the public that includes persons who are
not subject to this Part,
(d) an interest in any matter relating to the terms on which the
provision of a service or the supply of goods or commodities is offered to a
relative of the person by the council in the same manner and subject to the
same conditions as apply to persons who are not subject to this
Part,
(e) an interest as a member of a club or other organisation or
association, unless the interest is as the holder of an office in the club or
organisation (whether remunerated or not),
(f) an interest of a member of a council committee as a person chosen
to represent the community or as a member of a non-profit organisation or
other community or special interest group if the committee member has been
appointed to represent the organisation or group on the
committee,
(g) an interest in a proposal relating to the making, amending,
altering or repeal of an environmental planning instrument other than an
instrument that effects a change of the permissible uses of:(i) land in which the person or a person, company or body referred to
in section 443 (1) (b) or (c) has a proprietary interest (which, for the
purposes of this paragraph, includes any entitlement to the land at law or in
equity and any other interest or potential interest in the land arising out of
any mortgage, lease, trust, option or contract, or otherwise),
or
(ii) land adjoining, adjacent to or in proximity to land referred to in
subparagraph (i),
if the person or the person, company or body referred to in section 443
(1) (b) or (c) would by reason of the proprietary interest have a pecuniary
interest in the proposal,
(h) an interest relating to a contract, proposed contract or other
matter if the interest arises only because of a beneficial interest in shares
in a company that does not exceed 10 per cent of the voting rights in the
company,
(i) an interest of a person arising from the proposed making by the
council of an agreement between the council and a corporation, association or
partnership, being a corporation, association or partnership that has more
than 25 members, if the interest arises because a relative of the person is a
shareholder (but not a director) of the corporation or is a member (but not a
member of the committee) of the association or is a partner of the
partnership,
(j) an interest of a person arising from the making by the council of
a contract or agreement with a relative of the person for or in relation to
any of the following, but only if the proposed contract or agreement is
similar in terms and conditions to such contracts and agreements as have been
made, or as are proposed to be made, by the council in respect of similar
matters with other residents of the area:(i) the performance by the council at the expense of the relative of
any work or service in connection with roads or
sanitation,
(ii) security for damage to footpaths or roads,
(iii) any other service to be rendered, or act to be done, by the
council by or under any Act conferring functions on the council or by or under
any contract,
(k) an interest relating to the payment of fees to councillors
(including the mayor and deputy mayor),
(l) an interest relating to the payment of expenses and the provision
of facilities to councillors (including the mayor and deputy mayor) in
accordance with a policy under section 252,
(m) an interest relating to an election to the office of mayor arising
from the fact that a fee for the following 12 months has been determined for
the office of mayor,
(n) an interest of a person arising from the passing for payment of a
regular account for wages or salary of an employee who is a relative of the
person,
(o) an interest arising from being covered by, or a proposal to be
covered by, indemnity insurance as a councillor or member of a council
committee,
(p) an interest arising from appointment of a councillor to a body as
representative or delegate of the council, whether or not a fee or other
recompense is payable to the representative or
delegate.
DISCLOSURE OF INTERESTS |
How and when disclosed and nature of interests
disclosed | Councillor | Member of council committee | Council advisor | General manager | Senior staff member | Staff member, delegate or committee member, holding
“designated person” position (s 441) |
• At meetings:
Pecuniary interests (ss 451, 456) | ✓ | ✓ | ✓ | × | × | × |
• In dealings with council matters:
Pecuniary interests (s 459) | × | × | × | ✓ | ✓ | ✓ |
PENALTIES FOR BREACH OF DISCLOSURE REQUIREMENTS (S
482) |
Councillor | Committee member | Council adviser | Council
employee |
• Counselling
• Reprimand
• Suspension from civic office for up to 6
months
• Disqualification from civic office for up to 5
years
| • Counselling
• Reprimand
• Suspension from the committee for up to 6
months
• Disqualification from membership of any council committee for up
to 5 years
| • Counselling
• Reprimand
• Suspension as council advisor for up to 6
months
• Disqualification as council advisor for up to 5
years
| • Counselling
• Reprimand
• Recommend taking of disciplinary action by the
council
• Recommend dismissal
|
Division 2 Disclosure of interests in written
returns
449 Returns disclosing interests of councillors and
designated persons
(1) A councillor or designated person must complete and lodge with the
general manager, within 3 months after becoming a councillor or designated
person, a return in the form prescribed by the
regulations.
(1A) A person must not lodge a return that the person knows or ought
reasonably to know is false or misleading in a material
particular.
(2) A person need not lodge a return within the 3-month period after
becoming a councillor or designated person if the person lodged a return in
that year or the previous year or if the person ceases to be a councillor or
designated person within the 3-month period.
(3) A councillor or designated person holding that position at 30 June
in any year must complete and lodge with the general manager within 3 months
after that date a return in the form prescribed by the
regulations.
(4) A person need not lodge a return within the 3-month period after
30 June in a year if the person lodged a return under subsection (1) within 3
months of 30 June in that year.
(5) Nothing in this section prevents a councillor or designated person
from lodging more than one return in any year.
(6) Nothing in this section or the regulations requires a person to
disclose in a return lodged under this section an interest of the
person’s spouse or de facto partner or a relative of the
person.
450 (Repealed)
450A Register and tabling of returns
(1) The general manager must keep a register of returns required to be
lodged with the general manager under section 449.
(2) Returns required to be lodged with the general manager under
section 449 must be tabled at a meeting of the council, being:(a) in the case of a return lodged in accordance with section 449
(1)—the first meeting held after the last day for lodgement under that
subsection, or
(b) in the case of a return lodged in accordance with section 449
(3)—the first meeting held after the last day for lodgement under that
subsection, or
(c) in the case of a return otherwise lodged with the general
manager—the first meeting after lodgement.
Division 3 Disclosure of pecuniary interests at
meetings
451 Disclosure and presence in meetings
(1) A councillor or a member of a council committee who has a
pecuniary interest in any matter with which the council is concerned and who
is present at a meeting of the council or committee at which the matter is
being considered must disclose the nature of the interest to the meeting as
soon as practicable.
(2) The councillor or member must not be present at, or in sight of,
the meeting of the council or committee:(a) at any time during which the matter is being considered or
discussed by the council or committee, or
(b) at any time during which the council or committee is voting on any
question in relation to the matter.
(3) For the removal of doubt, a councillor or a member of a council
committee is not prevented by this section from being present at and taking
part in a meeting at which a matter is being considered, or from voting on the
matter, merely because the councillor or member has an interest in the matter
of a kind referred to in section 448.
(4) Subsections (1) and (2) do not apply to a councillor who has a
pecuniary interest in a matter that is being considered at a meeting,
if:(a) the matter is a proposal relating to:(i) the making of a principal environmental planning instrument
applying to the whole or a significant part of the council’s area,
or
(ii) the amendment, alteration or repeal of an environmental planning
instrument where the amendment, alteration or repeal applies to the whole or a
significant part of the council’s area, and
(b) the councillor made a special disclosure under this section in
relation to the interest before the commencement of the
meeting.
(5) The special disclosure of the pecuniary interest must, as soon as
practicable after the disclosure is made, be laid on the table at a meeting of
the council and must:(a) be in the form prescribed by the regulations,
and
(b) contain the information required by the
regulations.
Note. The code of conduct adopted by a council for the purposes of
section 440 may also impose obligations on councillors, members of staff of
councils and delegates of councils.
452 (Repealed)
453 Disclosures to be recorded
A disclosure made at a meeting of a council or council committee
must be recorded in the minutes of the meeting.
454 General disclosure
A general notice given to the general manager in writing by a
councillor or a member of a council committee to the effect that the
councillor or member, or the councillor’s or member’s spouse, de
facto partner or relative, is:(a) a member, or in the employment, of a specified company or other
body, or
(b) a partner, or in the employment, of a specified
person,
is, unless and until the notice is withdrawn, sufficient disclosure of
the councillor’s or member’s interest in a matter relating to the
specified company, body or person that may be the subject of consideration by
the council or council committee after the date of the
notice.
455 (Repealed)
456 Disclosure by adviser
(1) A person who, at the request or with the consent of the council or
a council committee, gives advice on any matter at any meeting of the council
or committee must disclose the nature of any pecuniary interest the person has
in the matter to the meeting at the time the advice is
given.
(2) The person is not required to disclose the person’s interest
as an adviser.
457 Circumstances in which secs 451 and 456 are not
breached
A person does not breach section 451 or 456 if the person did not
know and could not reasonably be expected to have known that the matter under
consideration at the meeting was a matter in which he or she had a pecuniary
interest.
458 Powers of Minister in relation to meetings
The Minister may, conditionally or unconditionally, allow a
councillor or a member of a council committee who has a pecuniary interest in
a matter with which the council is concerned to be present at a meeting of the
council or committee, to take part in the consideration or discussion of the
matter and to vote on the matter if the Minister is of the opinion:(a) that the number of councillors prevented from voting would be so
great a proportion of the whole as to impede the transaction of business,
or
(b) that it is in the interests of the electors for the area to do
so.
Division 4 Disclosure of pecuniary interests in council
dealings
459 Disclosure of pecuniary interests when dealing with
council matters
(1) A designated person must disclose in writing to the general
manager (or if the person is the general manager, to the council) the nature
of any pecuniary interest the person has in any council matter with which the
person is dealing.
(1A) However, subsection (1) does not require a designated person who
is a member of staff of the council to disclose such a pecuniary interest if
the interest relates only to the person’s salary as such a member of
staff or to his or her other conditions of employment or the
like.
(2) The general manager must, on receiving a disclosure from a
designated person, deal with the matter to which the disclosure relates or
refer it to another person to deal with.
(3) A disclosure by the general manager must, as soon as practicable
after the disclosure is made, be laid on the table at a meeting of the council
and the council must deal with the matter to which the disclosure relates or
refer it to another person to deal with.
Part 3 Complaints concerning non-disclosure
Management of
pecuniary interest complaints
Division 1 Making and investigation of complaints
460 Complaints concerning failure to disclose pecuniary
interests
(1) A person may make a complaint to the Director-General, or the
Director-General may make a complaint, that a person has or may have
contravened Part 2.
(2) A complaint:(a) must be in writing, and
(b) must identify the complainant and the person against whom the
complaint is made, and
(c) must give particulars of the grounds of the complaint,
and
(d) must be verified by statutory declaration, and
(e) must be lodged with the
Director-General.
(3) The provisions of subsection (2) (b), in so far as they require a
complaint to identify the complainant, (d) and (e) do not apply to a complaint
made by the Director-General.
461 Director-General may require further
information
The Director-General may require the complainant to provide
further particulars of the complaint within the time specified by the
Director-General.
462 Investigation of complaints
(1) The Director-General may investigate a
complaint.
(2) The Director-General may refer a complaint for investigation to an
authority, being the Ombudsman, the Independent Commission Against Corruption,
the Commissioner of Police or the Director of Public Prosecutions, if the
authority agrees to the referral. Such a referral may be made whether or not
the Director-General has begun to investigate the
complaint.
(3) The Director-General may decide not to investigate a complaint but
to authorise an investigation under section 430 in respect of a matter to
which the complaint relates.
463 Decision not to investigate a complaint
(1) The Director-General may decide to take no action concerning a
complaint (including a complaint referred to in section 464 (2)) if the
Director-General considers that the complaint falls into any of the following
categories:(a) the complaint is frivolous, vexatious or not made in good
faith,
(b) the subject-matter of the complaint is trivial or does not warrant
investigation,
(c) the subject-matter of the complaint has been or is under
investigation by some other competent person or body or has been or is the
subject of legal proceedings,
(d) the complaint raises issues that require investigation by another
person or body,
(e) there is or was, in relation to the matter complained of, a
satisfactory alternative means of dealing with the matter by the
complainant,
(f) the complaint relates to a matter that occurred more than 2 years
before the complaint was made and the complainant does not have a sufficient
reason for having delayed the making of the complaint,
(g) the complainant has failed to provide further particulars of the
complaint within the time specified by the
Director-General.
(2) If the Director-General decides to take no action concerning a
complaint (including a complaint referred to in section 464 (2)), the
Director-General must notify the complainant and give the reasons for the
decision.
464 Referral and investigation of complaints by other
authorities
(1) An authority who receives a matter (otherwise than from the
Director-General) for the purpose of investigation is authorised by this Act
to refer the matter to the Director-General if the matter involves a possible
contravention of Part 2.
(2) A matter referred to the Director-General under this section is
taken to be a complaint made by the
Director-General.
465 Pecuniary Interest and Disciplinary Tribunal to be
notified of investigations
The Director-General must notify the Pecuniary Interest and
Disciplinary Tribunal of a decision to investigate a complaint or to refer a
complaint for investigation to an authority.
466 Persons to be notified of complaint
(1) The Director-General must, within 3 months after receiving a
complaint, making a complaint or having a matter referred to the
Director-General under section 464, give the person against whom the complaint
is made notice of the nature of the complaint and whether any action has been,
or is intended to be, taken concerning the
complaint.
(2) At the same time as notice is given to the person against whom the
complaint is made, the Director-General must notify the complainant whether
any action has been, or is intended to be, taken concerning the complaint.
However, at the time the notice is given to the person against whom the
complaint is made, the Director-General is not obliged to notify the
complainant of the decision not to investigate a complaint if notice of that
decision has already been given under section 463
(2).
467 Reports of investigation of complaints by
authorities
An authority who has investigated an allegation that a person has
or may have contravened Part 2 (whether or not the allegation was referred for
investigation by the Director-General), is authorised by this Act to send any
report prepared by the authority concerning the investigation to the
Director-General.
468 Presentation of reports to Pecuniary Interest and
Disciplinary Tribunal
(1) The Director-General must present a report to the Pecuniary
Interest and Disciplinary Tribunal of an investigation into a complaint
carried out by the Director-General.
(2) The Director-General must present to the Pecuniary Interest and
Disciplinary Tribunal any report received under section 467 from an
authority.
Division 2 Proceedings before the Pecuniary Interest and
Disciplinary Tribunal—pecuniary interest matters
469 Pecuniary Interest and Disciplinary Tribunal to decide
whether or not to conduct proceedings into a complaint
(1) After considering a report presented to it in relation to a
complaint, the Pecuniary Interest and Disciplinary Tribunal may decide to
conduct proceedings into the complaint.
(2) If the Pecuniary Interest and Disciplinary Tribunal decides not to
conduct proceedings into a complaint, it must provide a written statement of
its decision, and the reasons for its decision:(a) to the person against whom the complaint was made,
and
(b) to the person who made the complaint, and
(c) to the Director-General.
(3) To avoid doubt, a decision by the Pecuniary Interest and
Disciplinary Tribunal not to conduct proceedings into a complaint is not a
decision to which section 484 (Pecuniary Interest and Disciplinary Tribunal to
provide details of its decisions) or 485 (Appeals to Supreme Court)
applies.
470 Circumstances in which Pecuniary Interest and
Disciplinary Tribunal may dispense with hearing
(1) After considering the report of the Director-General and any other
document or other material lodged with or provided to the Tribunal, the
Pecuniary Interest and Disciplinary Tribunal may determine the proceedings
without a hearing if:(a) the person who made the complaint and the person against whom the
complaint is made have agreed that the proceedings may be determined without a
hearing, and
(b) there are no material facts in dispute between the person who made
the complaint and the person against whom the complaint is made,
and
(c) in the opinion of the Tribunal, public interest considerations do
not require a hearing.
(2) To avoid doubt, a decision by the Pecuniary Interest and
Disciplinary Tribunal to determine proceedings into a complaint without a
hearing is a decision to which sections 484 (Pecuniary Interest and
Disciplinary Tribunal to provide details of its decisions) and 485 (Appeals to
Supreme Court) apply.
Note. Section 484 requires the Pecuniary Interest and Disciplinary
Tribunal to inform certain parties of decisions in proceedings before
it.
Division 3 Proceedings before the Pecuniary Interest and
Disciplinary Tribunal—misconduct matters
470A Pecuniary Interest and Disciplinary Tribunal to decide
whether or not to conduct proceedings into a misconduct matter
(1) After considering a report presented to it under section 440J in
relation to a referred matter, the Pecuniary Interest and Disciplinary
Tribunal may decide to conduct proceedings into the
matter.
(2) If the Pecuniary Interest and Disciplinary Tribunal decides not to
conduct proceedings into a referred matter, it must provide a written
statement of its decision, and the reasons for its decision:(a) to the councillor to whom the report relates,
and
(b) to the council concerned, and
(c) to the Director-General.
(3) To avoid doubt, a decision by the Pecuniary Interest and
Disciplinary Tribunal not to conduct proceedings into a referred matter is not
a decision to which section 484 or 485 applies.
470B Circumstances in which Pecuniary Interest and
Disciplinary Tribunal may dispense with hearing
(1) After considering a report presented to it under section 440J and
any other document or other material lodged with or provided to the Tribunal
in relation to the report, the Pecuniary Interest and Disciplinary Tribunal
may determine the proceedings without a hearing if:(a) the Director-General and the councillor to whom the report relates
have agreed that the proceedings may be determined without a hearing,
and
(b) there are no material facts in dispute between the
Director-General and the councillor, and
(c) in the opinion of the Tribunal, public interest considerations do
not require a hearing.
(2) To avoid doubt, a decision by the Pecuniary Interest and
Disciplinary Tribunal to determine proceedings in a referred matter without a
hearing is a decision to which sections 484 and 485
apply.
Division 4 Proceedings before the Pecuniary Interest and
Disciplinary Tribunal—general provisions
471 General conduct of proceedings
(1) The Pecuniary Interest and Disciplinary Tribunal may determine its
own procedure, subject to this Act.
(2) In the conduct of any proceedings, the Pecuniary Interest and
Disciplinary Tribunal:
