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Contents (1993 - 30)
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Local Government Act 1993 No 30
Current version for 5 December 2019 to date (accessed 25 January 2020 at 14:13)
Chapter 17 Part 1
Part 1 General
Division 1 Legal proceedings
672   What constitutes a breach of this Act for the purposes of this Part?
In this Part—
(a)  a breach of this Act means—
(i)  a contravention of or failure to comply with this Act,
(ii)  a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and
(b)  this Act includes—
(i)  an approval under Part 1 of Chapter 7, and
(ii)  an order under Part 2 of Chapter 7, and
(iii)  the regulations.
673   Remedy or restraint of breaches of this Act—the Minister, the Departmental Chief Executive and councils
(1)  The Minister, the Departmental Chief Executive or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act.
(2)  Subsection (1) does not apply in relation to an alleged contravention of a pecuniary interests duty imposed under Chapter 14 (Honesty and disclosure of interests).
Note.
 Section 486A confers exclusive jurisdiction on the Civil and Administrative Tribunal to deal with such a matter at first instance.
674   Remedy or restraint of breaches of this Act—other persons
(1)  Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.
(2)  The proceedings may be brought by a person on the person’s own behalf or on behalf of the person and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3)  Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(4)    (Repealed)
(5)  Subsection (1) does not apply in relation to anything done or omitted to be done under Division 3 of Part 1 of Chapter 14.
674A   Provisions of Act that do not give rise to or affect legal proceedings
(1)  For the purposes of this section, the following are relevant provisions of this Act—
(a)  a provision of Chapter 3,
(b)  section 223,
(c)  section 226,
(d)  section 232,
(e)  section 439,
(f)  section 440.
(1A)  A provision is also a relevant provision to the extent that it applies a provision referred to in subsection (1).
(2)  The relevant provisions do not give rise to, and cannot be taken into account in, any civil cause of action and do not affect any rights or liabilities arising apart from the relevant provisions.
(3)  Without limiting subsection (2), a contravention of the relevant provisions is not a breach of this Act for which a remedy may be sought (whether under this Act or otherwise).
675   Time limit on proceedings questioning the validity of approvals
Proceedings questioning the validity of an approval under Part 1 of Chapter 7 may not, if the council has given public notice of the granting of the approval in the manner and form prescribed by the regulations, be commenced more than 3 months after the date on which the notice was given.
676   Functions of the Land and Environment Court
(1)  If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2)  If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may—
(a)  adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and
(b)  in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
(3)  The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.
677   Compensation may be awarded against vexatious litigants
(1)  The Land and Environment Court, on the hearing of proceedings brought under section 674, has a discretion to award compensation to the person against whom such proceedings are taken if the Court considers that—
(a)  the proceedings against the person are frivolous or vexatious, and
(b)  the person has incurred expense as a consequence of any delay to an activity that has occurred as a result of the proceedings, and
(c)  the activity is authorised by an approval held by the person.
(2)  A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision in the proceedings.
(3)  Compensation under this section is to be awarded against the person by whom the proceedings under section 674 were taken.
678   Failure to comply with order—carrying out of work by the council
(1)  If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.
(2)  If the council gives effect to an order by demolishing a building, the council—
(a)  may remove any materials concerned, and
(b)  may sell the materials, unless the expenses of the council in giving effect to the terms of the order are paid to it within 14 days after removal of the materials.
(3)  If the proceeds of such a sale exceed the expenses incurred by the council in relation to the demolition and the sale, the council—
(a)  may deduct out of the proceeds of the sale an amount equal to those expenses, and
(b)  must pay the surplus to the owner on demand.
(4)  If the proceeds of sale do not exceed those expenses, the council—
(a)  may retain the proceeds, and
(b)  may recover the deficiency (if any) together with its costs of recovery from the owner as a debt.
(5)  Materials removed that are not saleable may be destroyed or otherwise disposed of.
(6)  Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned.
(7)  Nothing in subsection (3), (4) or (6) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.
(8)  A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings.
(9)  A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628.
(10)  In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
Note.
 Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.
679   Penalty notices for certain offences
(1)  An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act (other than an offence under section 312, 650 or 651), being an offence prescribed by the regulations.
(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.
(3)  A penalty notice—
(a)  may be served personally or by post, or
(b)  if it relates to an offence involving the use of a vehicle, may be addressed to the owner (without naming the owner or stating the owner’s address) and may be served by leaving it on or attaching it to the vehicle.
(4)  If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.
(5)  Payment under this section is not regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(6)  The regulations may—
(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and
(b)  prescribe the amount of penalty payable for the offence if dealt with under this section, and
(c)  prescribe different amounts of penalties for different offences or classes of offences.
(7)  The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.
(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences.
Division 2 Other remedies
680   Demanding name of offender
(1)  An authorised person who finds a person whom the authorised person reasonably suspects of committing an offence under this Act in a public place, or an offence in respect of which the authorised person may issue a penalty notice under section 224 of the Protection of the Environment Operations Act 1997, may—
(a)  demand from the person his or her name and residential address, and
(b)  report the offence and the name and residential address of the person to the council as soon as practicable.
(2)  The provisions of subsection (1)(b) do not apply to any police officer in respect of an offence under section 650 (use of council’s free parking areas).
(3)  A person who on demand made as referred to in this section—
(a)  refuses to state his or her name or residential address, or
(b)  states a name or residential address which in the opinion of the authorised person is false,
may without any other warrant than this Act be apprehended by the authorised person and taken before a Magistrate or authorised officer to be dealt with according to law.
(4)  A Magistrate or authorised officer before whom a person is taken under subsection (3) may make a bail decision under the Bail Act 2013 in respect of the person.
(4A)  If the person has not been charged with an offence, the Bail Act 2013 applies to the person as if the person were accused of an offence.
(5)  A person who on demand made as referred to in this section—
(a)  refuses to state his or her name or residential address, or
(b)  states a false name or residential address,
is guilty of an offence.
Maximum penalty—5 penalty units.
(6)  For the purpose of applying the Bail Act 2013, an authorised officer has the same functions as an authorised justice under that Act.
(7)  In this section—
authorised officer means an authorised officer under the Criminal Procedure Act 1986.
680A   Authorised person may give directions relating to public places
(1)  A council employee who is authorised in writing by the Commissioner of Police for the purposes of this section (enforcement officer) may give a direction to a person in a public place if the enforcement officer believes, on reasonable grounds, that the person’s behaviour or presence in the place is obstructing another person or persons or traffic.
(2)  A direction given by an enforcement officer under this section must be reasonable in the circumstances for the purpose of reducing or eliminating the obstruction.
(3)  A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this section.
Maximum penalty—2 penalty units.
(4)  A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct.
(5)  The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.
(6)  Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 (Safeguards relating to powers) applies to the exercise of a power under this section by an enforcement officer in the same way as that Part applies to a police officer.
(7)  This section does not authorise an enforcement officer to give directions in relation to—
(a)  an industrial dispute, or
(b)  an apparently genuine demonstration or protest, or
(c)  a procession, or
(d)  an organised assembly.
681   Removal of offenders from community land
(1)  A person committing an offence against this Act on community land may be removed from the land by an authorised person.
(2)  Reasonable force may be used to effect the person’s removal.
(3)  The removal of the person does not affect the person’s liability to be prosecuted for an offence.
681A   Confiscation of recreational equipment
(1)  This section applies to—
(a)  any item of skating equipment that is being used in contravention of the provisions of a notice referred to in section 632 or of the provisions of section 633A, or
(b)  any item of water-based recreational equipment that is being used in contravention of the provisions of a notice referred to in section 633.
(2)  An authorised person may take possession of equipment to which this section applies—
(a)  if the authorised person has directed the person using the equipment to stop using it in contravention of the provisions referred to in subsection (1), and
(b)  if, despite the direction, the person has continued to use the equipment in contravention of those provisions,
but may not use force to do so.
(3)  Equipment that an authorised person takes possession of under this section is referred to in this section as confiscated equipment.
(4)  On taking possession of confiscated equipment, the authorised person must give a receipt to the person from whom it has been taken, indicating the nature of the equipment and the date and time when the authorised person took possession of it.
(5)  The confiscated equipment—
(a)  must be returned to the person from whom it was taken, or be delivered to a public pound within the meaning of the Impounding Act 1993, within 24 hours after possession of it is taken, and
(b)  if it is delivered to a public pound, the person from whom it was taken must be notified in writing of the address of the pound.
(6)  The Impounding Act 1993 (sections 20 and 23(2)(b) and (c) excepted) applies to confiscated equipment that is delivered to a public pound as if the equipment had been impounded under that Act. Accordingly, it will become returnable on demand.
(7)  The deadline for release for confiscated equipment, as referred to in section 24 of the Impounding Act 1993, is taken to be 28 days from the day on which possession of it was taken.
(8)  In this section, a reference to an authorised person extends to a member of a surf life saving organisation who is authorised by the council concerned to exercise the functions conferred on an authorised person by this section, but so extends only with respect to an item of water-based recreational equipment that is being used in contravention of the provisions of a notice referred to in section 633.
(9)  A council is liable for the acts and omissions of a member of a surf life saving organisation who is an authorised person by virtue of subsection (8) as if the member were an employee of the council.