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Contents (1993 - 30)
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Local Government Act 1993 No 30
Current version for 8 January 2019 to date (accessed 26 June 2019 at 06:20)
Chapter 7
Chapter 7 What are the regulatory functions of councils?
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2, 3   (Repealed)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 Departmental Chief Executive, 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 Departmental Chief Executive 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 Departmental Chief Executive—that filming protocol.
(2)  The Departmental Chief Executive 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 Departmental Chief Executive must not approve a filming protocol adopted by a council unless the Departmental Chief Executive is satisfied that it is comparable to the filming protocol issued by the Departmental Chief Executive.
(4)  Before issuing a filming protocol, or approving a filming protocol adopted by a council, the Departmental Chief Executive 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 Departmental Chief Executive 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 Departmental Chief Executive 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 Departmental Chief Executive considers appropriate.
(4)  The Departmental Chief Executive may refuse to consider an application but in that event must refund the fee paid.
121   Determination of application
(1)  The Departmental Chief Executive 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 Departmental Chief Executive thinks fit.
(3)  In determining an application for accreditation, the Departmental Chief Executive may have regard to sources of information published or otherwise made available by such persons or bodies as the Departmental Chief Executive considers appropriate.
(4)  In granting an accreditation, the Departmental Chief Executive 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 Departmental Chief Executive may at any time revoke an accreditation if the Departmental Chief Executive 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 Departmental Chief Executive determines to revoke an accreditation, the Departmental Chief Executive must notify the applicant for accreditation of the Departmental Chief Executive’s determination.
123   Councils to be informed of accreditation and revocation
The Departmental Chief Executive 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 Departmental Chief Executive 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 Departmental Chief Executive, and
(b)  may provide that an accreditation granted by a person or body other than the Departmental Chief Executive 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:
(by delegation) improvement notice or prohibition order
environment protection notices
direction concerning maintenance or use of certain regulated systems
order preventing the passage of traffic along a road or tollway
 
order for the removal of an obstruction or encroachment on a road
order requiring owner of swimming pool to bring it into compliance with the Act
A person who fails to comply with an order is guilty of an offence—see sec 628.
Table
Orders
Orders requiring or prohibiting the doing of things to or on premises
Column 1
Column 2
Column 3
To do what?
In what circumstances?
To whom?
1
To demolish or remove a building
(a)–(c)    (Repealed)
(d)  Building is erected in a catchment district and causes or is likely to cause pollution of the water supply
Owner of building
2
  (Repealed)  
3
To repair or make structural alterations to a building
(a), (b)    (Repealed)
(c)  Building is erected in a catchment district and causes or is likely to cause pollution of the water supply
Owner of building
4
  (Repealed)  
5
To take such action as is necessary to bring into compliance with relevant standards or requirements set or made by or under this Act or under the Local Government Act 1919:
(a)  a camping ground, caravan park or manufactured home estate
(b)  a moveable dwelling or manufactured home
(c)    (Repealed)
(d)  a place of shared accommodation
(e)  a hairdressers shop or beauty salon
(f)  a mortuary
(g)  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
Note.
 See also Part 4 of the Building Products (Safety) Act 2017.
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
•  Crown managed land
•  a common.
(2)  The Minister must not give consent in respect of vacant Crown land or Crown managed land until after the Minister has consulted the Minister administering the Crown Land Management Act 2016.
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   Departmental Chief Executive’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 Departmental Chief Executive’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)