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Contents (1993 - 30)
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Local Government Act 1993 No 30
Current version for 5 December 2019 to date (accessed 28 January 2020 at 21:19)
Schedule 7
Schedule 7 Savings, transitional and other provisions consequent on the enactment of this Act
(Section 749)
Part 1 Preliminary
1   Definition
In this Schedule—
old Act means the Local Government Act 1919.
2   Regulations—general
(1)  The Governor may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act and the following Acts—
(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later day.
(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as—
(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
3   General saving
(1)  If anything done or commenced under a provision of an instrument repealed by the Local Government (Consequential Provisions) Act 1993 has effect or is not completed immediately before the repeal of the provision and could have been done or commenced under a provision of an Act specified in clause 2(1) if the provisions of the Act had been in force when the thing was done or commenced—
(a)  the thing done continues to have effect, or
(b)  the thing commenced may be completed.
(2)  This clause is subject to any express provision of this Act or the regulations on the matter.
4   Construction of references to the old Act and its provisions
(1)  Except as provided by this clause, a reference in any instrument to the old Act (or a provision of the old Act) is to be read as a reference to that instrument or the following instruments (or that provision of such an instrument) that, having regard to the reference and the context in which the reference occurs, most nearly corresponds to the old Act (or the provision of the old Act)—
  this Act
  the Roads Act 1993
  the Traffic Act 1909
  the regulations made under those Acts.
(2)  The regulations may provide that a reference in any instrument or a specified instrument to the old Act (or a specified provision of the old Act) is to be read as a reference to another specified instrument (or a specified provision of such an instrument).
5   Saving of certain proclamations
Any proclamation in force under the old Act immediately before 1 July 1993 is taken to be a proclamation under this Act.
Part 2 Provisions arising out of Chapter 6 (What are the service functions of councils?)
6   Classification of existing public land
(1)  This clause applies to all public land within a council’s area as at the commencement of Part 2 of Chapter 6 (the relevant commencement).
(2)  On the relevant commencement, the following land that is vested in or under the control of a council is taken to have been classified as community land—
(a)  land comprising a public reserve,
(b)  land subject to a trust for a public purpose,
(c)  land dedicated as a condition of a development consent under section 94 of the Environmental Planning and Assessment Act 1979,
(d)  land reserved, zoned or otherwise designated for use under an environmental planning instrument as open space,
(e)  land controlled by a council that is vested in the corporation constituted by section 8(1) of the Environmental Planning and Assessment Act 1979.
(3)  Within 1 year after the relevant commencement, a council may, by resolution, classify, as community land or operational land, any public land that is vested in it or under its control and that is not classified by subclause (2).
(4)  A resolution under subclause (3) to classify public land that is not owned by the council must not be made without the consent of the owner.
(5)  On the making of a resolution under subclause (3) that classifies public land as operational land, the land is discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, subject to the terms of the resolution, but is not discharged from—
(a)  any reservations that except land out of a Crown grant relating to the land, and
(b)  reservations of minerals (within the meaning of the Crown Lands Act 1989).
(6)  The classification of public land by resolution under subclause (3) may be changed only by a local environmental plan or, in the case of land that has been classified as operational land, by a resolution under section 33.
(7)  Any public land that may be classified by resolution under subclause (3) and that is not classified within 1 year after the relevant commencement is taken to have been classified as community land.
(8)  The provisions of this clause are in addition to, and do not limit the operation of, the other provisions of this Act with respect to the classification of land.
7   Land to which sec 32 applies
Section 32 applies to land whether acquired before or after the commencement of Part 2 of Chapter 6.
8–11   (Repealed)
12   Water, sewerage and drainage works
The Minister or the Governor may charge a council with the care and management of any water, sewerage or drainage works constructed or commenced by the Minister or Governor before the commencement of Division 2 of Part 3 of Chapter 6, or vest any such works in a council, as if those works had been constructed after that commencement.
Part 3 Provisions arising out of Chapter 7 (What are the regulatory functions of councils?)
13   (Repealed)
14   Existing approvals
An approval given, or deemed to have been given, under the old Act or an ordinance under the old Act, and in force immediately before the commencement of Division 1 of Part 1 of Chapter 7, if it is an approval, or an approval of a kind, that may be given under this Act, continues in force and is taken to have been given, and may be revoked, modified, extended or renewed under this Act.
14A   Existing places of public entertainment
(1)  An approval given, or deemed to have been given, under the old Act to use a building as a place of public entertainment, and in force immediately before 1 July 1993, continues in force according to its tenor and may be revoked or modified as if it were an approval given under Division 1 of Part 1 of Chapter 7.
(2)  Such an approval lapses, or is taken to have lapsed when the building ceases, or ceased, to be used as a place of public entertainment.
15   Pending applications for approvals
(1)  An application for an approval made under the old Act or an ordinance under the old Act to a council, being an application that has not, immediately before the commencement of Division 3 of Part 1 of Chapter 7, been determined by the council, is to be dealt with as if the old Act and any relevant ordinances under the old Act were still in force.
(2)  A person may appeal against a decision made about any such application in accordance with this Act.
16   Notice of applications to erect buildings—validation
(1)  An approval to erect a building given by a council on or before 12 December 1990 is not invalid merely because written notice of the building application was not given to any one or more affected persons unless a court, in proceedings commenced on or before that date, determines or has determined that the approval is invalid for that reason.
(2)  For the purposes of any such proceedings, the council is taken to have given written notice of the building application to an affected person if it is established that the person knew, or could reasonably be expected to have known, of the existence of the building application within a reasonable time before the council gave its approval to the application.
(3)  An approval to erect a building given by a council after 12 December 1990 but before the commencement of Division 4 of Part 1 of Chapter 7 is not invalid merely because written notice of the building application was not given to any one or more affected persons, as long as the notice was given to the persons to whom the notice would have been required to be given had the provisions of that Division (section 115 excepted) been in force when the approval was given.
(4)  In this clause, affected person means a person who, when the building application was made, owned land—
(a)  that adjoined the land in respect of which the application was made, or
(b)  the enjoyment of which might have been detrimentally affected by the erection of a building on the land in respect of which the application was made.
17   (Repealed)
18   Orders
An order made by a council or council officer under the old Act or an ordinance under the old Act, and in force immediately before the commencement of Part 2 of Chapter 7, if it is an order, or an order of a kind, that may be given under this Act, continues in force, and is taken to have been given, and may be revoked, modified or appealed against, under this Act.
19   Catchment districts
A proclaimed Catchment District for the purposes of Part 8 of Ordinance No 45 made under the old Act is taken to be a catchment district proclaimed under section 128.
20   Building certificates
A building certificate, in relation to the whole or a part of a building, issued by a council under Part 11 of the old Act, and in force immediately before the commencement of Part 4 of Chapter 7, continues in force and is taken to have been issued under this Act.
Part 4 Provisions arising out of Chapter 9 (How are councils established?)
Division 1 General
21   Continuation of existing areas
(1)  An area constituted as a municipality or shire immediately before the commencement of Division 1 of Part 1 of Chapter 9 continues as an area under this Act and is taken to be constituted under this Act.
(2)  An area constituted as a city immediately before the commencement of Division 1 of Part 1 of Chapter 9 continues as that city and is taken to be constituted under this Act.
22   Continuation of existing councils
A council constituted immediately before the commencement of Division 1 of Part 2 of Chapter 9 continues as that council and is taken to be constituted under this Act.
23   (Repealed)
24   References to councils, areas and council members etc
(1)  On and from the commencement of the relevant provision of this Act, a reference (however expressed) in any other Act (whether assented to before, on or after that commencement), in any instrument made under an Act or in any other instrument of any kind—
(a)  to a municipality or a shire—is to be read as a reference to an area under this Act, or
(b)  to the council of a municipality or shire, or a municipal council or shire council, is to be read as a reference to the council of the area concerned, or
(c)  to a riding of a shire is to be read as a reference to a ward of an area, or
(d)  to the President of a council is to be read as a reference to the mayor of the council, or
(e)  to an alderman is to be read as a reference to a councillor, or
(f)  to a town clerk or shire clerk of a council is to be read as a reference to the general manager of a council.
(2)  Without limiting the operation of clauses 2 and 4, the regulations may contain provisions with respect to the interpretation of references to the old Act or any provision of that Act, councils constituted under that Act or any member or employee of a council.
24A   (Repealed)
25   Election of mayors
(1)  An area whose mayor or president was, immediately before the commencement of Division 2 of Part 2 of Chapter 9, elected by the electors is, for the purposes of this Act, taken to be an area for which there is a decision in force under this Act that the mayor is to be elected by the electors.
(1A)  If, before 1 July 1993—
(a)  a poll was taken under section 25A(6) of the old Act in relation to an area, and
(b)  the decision of the poll was in favour of applying section 25A of the old Act to the area,
the area is, for the purposes of this Act, taken to be an area for which there is a decision in force under this Act that the mayor is to be elected by the electors.
(2)  A decision referred to in this clause has effect, and may be changed by a constitutional referendum, in the same way as if the decision had been made under this Act.
Division 2 Alteration in number of councillors
26–30A   (Repealed)
30B   Validation
(1)  Any thing done before the commencement of an amendment made to this Division by the Local Government Legislation (Miscellaneous Amendments) Act 1994 that would, had the provision as so amended been in force when the thing was done or purported to be done, have been valid is validated.
(2)  Botany Council is taken to have validly prepared a draft resolution under this Division to reduce the number of its councillors to 7 (one of whom is the mayor), the Minister is taken to have approved the draft resolution under this Division without any amendments and no by-election is required to fill a vacancy that occurred before the commencement of this clause.
30C   Increase in councillors by certain councils
(1)  Despite section 224(3), any of the following councils may, before the ordinary elections due to be held in September 1995, resolve to increase the number of councillors by one—
Bellingen Shire Council
Canterbury City Council
Liverpool City Council
Newcastle City Council
Shoalhaven City Council.
(2)  On the passing of a resolution under subclause (1) by a council, a resolution of the council of the kind referred to in clause 28(3) ceases to have effect.
(3)  On the passing of a resolution under subclause (1) by the Newcastle City Council, the City of Newcastle is divided into wards as described in the proclamation published in Gazette No 102 of 21 August 1992 on pages 5959–5961.
30D   Constitution of the Sutherland Shire Council
Despite sections 210 and 224 and any resolution of the kind referred to in clause 28(3), for the ordinary election due to be held in September 1995—
(a)  the Sutherland local government area is to be divided into 5 wards with boundaries as determined by the Sutherland Shire Council that comply with section 211(4), and
(b)  the number of councillors of the Sutherland Shire Council is 15.
Part 5 Provisions arising out of Chapter 10 (How are people elected to civic office?)
31   Disqualification from civic office
The reference in section 275(1)(d) to an offence under the regulations made for the purposes of section 748(3) includes a reference to an electoral offence within the meaning of the old Act.
32   Electors under the City of Sydney Act 1988
Part 1 of Chapter 10 does not affect the right of a person to be an elector under the City of Sydney Act 1988.
33   Maitland City Council
The number of councillors for the Maitland City Council for the term of office commencing next after the ordinary election in September 1999 is 13 despite—
(a)  the result of the constitutional referendum held by that Council in 1995 in relation to the number of councillors, and
(b)  sections 17(1) and 224(2) and (3).
Part 6 Provisions arising out of Chapter 11 (How are councils staffed?)
34   Definitions
In this Part—
appointed day means the date of commencement of Chapter 11.
organisation structure of a council means its organisation structure determined under Part 1 of Chapter 11.
35   Time within which organisation structure to be determined
(1)  A council must determine its organisation structure within 2 years after the appointed day.
(2)  The Minister may extend the 2-year period in relation to a council specified by the Minister.
36   Time within which general manager to be appointed
(1)  A council must, under section 334, appoint a general manager within 2 years after the appointed day.
(2)  The Minister may extend the 2-year period in relation to a council specified by the Minister.
(3)  A council is taken to have complied with this clause if—
(a)  within 3 years before the appointed day, it appointed a person as general manager (or to a position having functions comparable with those of a general manager), being an appointment that, if this Act had been in force at the time of the appointment, would have complied with the provisions of this Act, and
(b)  within 12 months after the appointed day, it confirms that appointment by resolution.
(4)  For the purposes of subclause (3)(a), an appointment for a term exceeding 5 years is taken to satisfy section 338(2), but such a term (if it would, but for this subclause, expire more than 5 years after the appointed day) expires 5 years after the appointed day.
37   Time within which other senior staff to be appointed
(1)  If in the organisation structure of a council determined in accordance with clause 35 there are senior staff positions other than that of the general manager, the general manager of the council must make appointments to those positions within 2 years after the appointed day.
(2)  The Minister may extend the 2-year period in relation to a council specified by the Minister.
(3)  Any such appointment is to be made in accordance with Chapter 11 or this Part.
38   Who exercises the functions of general manager pending an appointment?
Until a council appoints a person to be its general manager, the employee of the council specified by resolution of the council has the functions of the general manager.
39, 40   (Repealed)
41   No contracting out of Part 2 of Chapter 11
The reference in section 338(2) to any contract is a reference to any contract made before, on or after the appointed day.
42, 43   (Repealed)
Part 7 Provisions arising out of Chapter 12 (How do councils operate?)
44   (Repealed)
45   Continuation of existing county councils
A county council constituted immediately before the commencement of Part 5 of Chapter 12 continues as that county council and is taken to be constituted under this Act.
46   Continuation of existing county districts
Any group of wholes and parts of areas constituted as a county district immediately before the commencement of Part 5 of Chapter 12 continues as the area of operations of a county council and is taken to be constituted under this Act.
47   Construction of references to county districts
On and from the commencement of Part 5 of Chapter 12, a reference (however expressed) in any other Act (whether assented to before, on or after that commencement), in any instrument made under an Act or in any other instrument of any kind to a county district is to be read as a reference to the area of operations of a county council.
48   (Repealed)
Part 8 Provisions arising out of Chapter 13 (How are councils made accountable for their actions?)
49   Auditors
(1)  Any person who was the auditor of a council immediately before the commencement of Division 3 of Part 3 of Chapter 13 continues to hold office, subject to the terms of his or her appointment.
(2)  If the term of the auditor’s appointment would, but for this subclause, expire more than 3 years after the commencement of Division 3 of Part 3 of Chapter 13, it expires 3 years after that commencement, except as provided by subclause (3).
(3)  A person appointed as auditor not more than 2 years before the commencement of Division 3 of Part 3 of Chapter 13 on a fixed term contract of not more than 6 years after tendering in accordance with the old Act may, with the Minister’s approval, continue as auditor for the balance of the term of the contract.
(4)  It does not matter that the auditor may not be qualified for an appointment under this Act.
(5)  However, a person does not continue to hold office as auditor if he or she is a disqualified person within the meaning of section 423.
50, 51   (Repealed)
Part 9 Provisions arising out of Chapter 14 (Honesty and disclosure of interests)
52, 53   (Repealed)
Part 10 Provisions arising out of Chapter 15 (How are councils financed?)
54   Initial categorisation of land for rating purposes
(1)  Before 1 July 1994, a council must—
(a)  declare, in accordance with Part 3 of Chapter 15, all rateable land in its area to be within one of the categories specified in section 514, and
(b)  give notice to each rateable person of the category so declared for the land for which the person is rateable.
(2)  A rateable person may request the council to review the categorisation.
(3)  A request for review must be made within 30 days after service of the notice.
(4)  The council must review a categorisation on receiving a request for review and may, after the review, confirm or change the categorisation.
(5)  The council must give notice to the rateable person of the decision made as a result of the review. The notice may be given in or with the rates and charges notice levying the ordinary rate for the year commencing on 1 July 1994.
(6)  If the council has not made a decision concerning a request for a review within 30 days after the request is made to it, the council is taken to have decided to confirm the categorisation on the date on which the 30-day period expires.
(7)  Nothing in subclause (6) prevents the council from making a decision concerning a request for a review after the expiration of the 30-day period.
(8)  A rateable person who is dissatisfied with a decision made by a council as a result of a request for a review may appeal to the Land and Environment Court.
(9)  An appeal must be made within 30 days after the council’s decision.
(10)  Such an appeal is to be heard and disposed of within Class 3 of the Land and Environment Court’s jurisdiction.
(11)  Without limiting the jurisdiction of the Land and Environment Court, the Court may, on an appeal, make any decision that could be made by the council on a request for a review.
(12)  The categorisation of rateable land in accordance with this clause has effect on and from 1 July 1994, subject to Part 3 of Chapter 15.
55   Regulations—new rating year
(1)  Without limiting clause 2, the Governor may make regulations containing provisions of a savings and transitional nature consequent on the change in the rating year on the commencement of the relevant provisions of this Act.
(2)  Any such regulations may provide for the levying of a rate or charge for a period other than the year specified under this Act and may adopt and modify the provisions of this Act, the old Act and the Valuation of Land Act 1916 for that purpose.
(3)  In particular, the regulations may provide that—
(a)  there is to be a transition period from 1 January 1994 to 30 June 1994 for the purpose of making and levying rates and annual charges, and
(b)  rates and annual charges for the transition period are to be made under the old Act (and the ordinances under the old Act) for the whole of the year commencing on 1 January 1994, and
(c)  a rate or annual charge levied for the transition period on a parcel of rateable land subject to the rate or charge is to be one-half of the amount that would otherwise be levied on the parcel under the old Act for the whole of the year, and
(d)  appropriate adjustments are to be made for—
(i)  the calculation of the maximum annual revenue that may be obtained from rates and charges, and
(ii)  the determination of rebates for eligible pensioners, and
(iii)  the payment of rates by instalments or otherwise, and
(iv)  other matters consequent on rating during the transition period.
(4)  Nothing in this clause prevents a regulation that relates to rates or charges or associated matters from being made under clause 2.
55A   (Repealed)
56   Existing investments
Section 625 does not affect an investment lawfully made before the commencement of that section by a council.
Part 11 Provisions arising out of Chapter 17 (Enforcement)
57   Exemption from liability—flood liable land and land in coastal zone
Section 733 applies to advice furnished before the commencement of that section as well as to advice furnished after that commencement.
58   Manuals for flood liable land and land in coastal zone
A manual notified under section 582A of the old Act before the commencement of section 733 is taken to be notified for the purposes of section 733.