Local Government Act 1993 No 30
What ancillary functions does a council have?
Acquisition of land
For what purposes may a council acquire land?
A council may acquire land (including an interest in land) for the purpose of exercising any of its functions.Without limiting subsection (1), a council may acquire—land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, orland which forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired under this Part.However, if the land acquired is, before its acquisition, community land vested in a council, the acquisition does not discharge the land from any trusts, estates, interests, dedications, conditions, restrictions or covenants that affected the land or any part of the land immediately before that acquisition.
How does a council acquire land?
Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.A council may not give a proposed acquisition notice under the
Restriction on compulsory acquisition of land for re-sale
A council may not acquire land under this Part by compulsory process without the approval of the owner of the land if it is being acquired for the purpose of re-sale.However, the owner’s approval is not required if—the land forms part of, or adjoins or lies in the vicinity of, other land acquired at the same time under this Part for a purpose other than the purpose of re-sale, orthe owner of the land cannot be identified after diligent inquiry has been made and at least 6 months has elapsed since that inquiry was made.For the purposes of subsection (2)(b), has the meaning given by the regulations, and includes the giving of notice of the proposed acquisition to the New South Wales Aboriginal Land Council and to the relevant Local Aboriginal Land Council.
No restriction as to area
Land may be acquired by a council under this Part even if it lies wholly or partly outside the council’s area.
Special provisions relating to land containing minerals
Division 4 of Part 8 of the Public Works Act 1912 applies to a council and land acquired by a council in the same way as that Division applies to a Constructing Authority and land acquired by a Constructing Authority.
Entry on to land and other powers
Power of entry
For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.
Power of entry—construction and maintenance of water supply, sewerage and stormwater drainage works
Without limiting section 191, a council employee (or other person) authorised by a council may enter any premises to carry out water supply work, sewerage work or stormwater drainage work on or under the premises (being work that the council is authorised by this or any other Act to carry out).Subsection (1) does not apply to premises that comprise a National Parks and Wildlife reserve.
Inspections and investigations
For the purpose of enabling a council to exercise its functions, a person authorised to enter premises under this Part may—inspect the premises and any food, vehicle, article, matter or thing on the premises, andfor the purpose of an inspection—open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, andrequire the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act or the regulations, andtake measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, andrequire any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, andexamine and test any meter, andmeasure a supply of water, andtake samples or photographs in connection with any inspection.
Notice of entry
Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises.The notice must specify the day on which the person intends to enter the premises and must be given before that day.This section does not require notice to be given—if entry to the premises is made with the consent of the owner or occupier of the premises, orif entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, orif entry is required urgently and the case is one in which the general manager has authorised in writing (either generally or in the particular case) entry without notice, orif entry is made solely for the purpose of reading a meter or other device for measuring—the supply of water to the premises from the council’s water mains, orthe discharge of sewage or other waste matter from the premises into the council’s sewer mains.
Use of force
Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Part, but only if authorised by the council in accordance with this section.The authority of the council—must be in writing, andmust be given in respect of the particular entry concerned, andmust specify the circumstances which are required to exist before force may be used.
Notification of use of force or urgent entry
A person authorised to enter premises under this Part who—uses force for the purpose of gaining entry to the premises, ormust promptly advise the council.enters the premises in an emergency without giving written notice to the owner or occupier,The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.
Care to be taken
In the exercise of a function under this Part, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.If, in the exercise of a function under this Part, any pit, trench, hole or bore is made, the council must, if the owner or occupier of the premises so requires—fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, andwithout unnecessary delay, fill it up or level it or sufficiently slope it down.
Recovery of cost of entry and inspection
If a person authorised by a council enters any premises under this Part for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.
A council must pay compensation for any damage caused by any person authorised by the council under this Part to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this or any other Act.Section 730 provides for the resolution of claims for compensation under this section in cases of dispute between the person claiming the compensation and the council.
Authority to enter premises
A power conferred by this Part to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.The authority must be a written authority which is issued by the council and which—states that it is issued under this Act, andgives the name of the person to whom it is issued, anddescribes the nature of the powers conferred and the source of the powers, andstates the date (if any) on which it expires, anddescribes the kind of premises to which the power extends, andbears the signature of the general manager.This section does not apply to a power conferred by a search warrant.
In what circumstances can entry be made to a residence?
The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except—with the permission of the occupier of that part of the premises, orif entry is necessary for the purpose of inspecting work being carried out under an approval, orunder the authority conferred by a search warrant.
An authorised person may apply to an authorised officer if the authorised person has reasonable grounds for believing that the provisions of this Act or the regulations or the terms of an approval or order under this Act have been or are being contravened in or on any premises.An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant—to enter the premises, andto search the premises for evidence of a contravention of this Act or the regulations or the terms of an approval or order.Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.Division 4 of Part 5 of theLaw Enforcement (Powers and Responsibilities) Act 2002, a police officer—Without limiting the generality of section 71 of themay accompany an authorised person executing a search warrant issued under this section, andmay take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.In this section—