An Act to provide for local government in New South Wales.
Chapter 1 Preliminary
ch 1, introduction: Rep 2016 No 55, Sch 3.17 [2].
1 Name of Act
This Act may be cited as the Local Government Act 1993.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
Expressions used in this Act (or in a particular provision of this Act) which are defined in the dictionary at the end of this Act have the meanings set out in the dictionary.
4 Does this Act bind the Crown?
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities, except to the extent to which this Act otherwise provides.Note—Particular provisions relating to the Crown are found in the following sections—• sections 72–74—concerning determination of Crown applications for approvals• section 111—concerning revocation or modification of approvals given to the Crown• section 126—concerning the giving of orders affecting Crown land (including Crown managed land) and commons• sections 555 and 561—concerning rates and charges on land owned by the Crown• section 560—concerning the liability to pay rates in respect of land owned by the Crown• section 611—concerning the imposition of an annual charge for certain things on, under or over public places• section 708—service of notices on the Crown• section 714—prohibition on sale of Crown lands for unpaid rates and chargess 4: Am 1997 No 152, Sch 3 [1]; 2001 No 93, Sch 1 [1]; 2017 No 17, Sch 2.10 [1].
5 To what parts of the State does this Act apply?
This Act applies to those parts of the State that are constituted as areas for the purposes of this Act, except as provided by or under this Act.Note—This Act does not apply to the whole of New South Wales. Some parts of the State do not come within a local government area. For example, parts of the Western Division of the State (to which the Crown Land Management Act 2016 applies) and Lord Howe Island (to which the Lord Howe Island Act 1953 applies) are not subject to this Act.Some local government areas or parts may not be subject to this Act (or to all of its provisions) because of special statutory exceptions. Other exceptions may be provided by regulations made under this Act.s 5: Am 2017 No 17, Sch 2.10 [2].
6 Notes in the text
Notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding.s 6: Am 2016 No 55, Sch 3.17 [1].
Chapter 2 What are the purposes of this Act?
ch 2, introduction: Rep 2016 No 55, Sch 3.17 [2].
7 Purposes of Act
The purposes of this Act are as follows—(a) to provide the legal framework for the system of local government for New South Wales,(b) to set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government,(c) to provide for governing bodies of councils that are democratically elected,(d) to facilitate engagement with the local community by councils, councillors and other persons and bodies that constitute the system of local government,(e) to provide for a system of local government that is accountable to the community and that is sustainable, flexible and effective.s 7: Am 1997 No 94, Sch 1 [1]. Subst 2016 No 38, Sch 1 [1].
The system of local government in New South Wales
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Chapter 3 Principles for local government
ch 3: Subst 2016 No 38, Sch 1 [2].
8 Object of principles
The object of the principles for councils set out in this Chapter is to provide guidance to enable councils to carry out their functions in a way that facilitates local communities that are strong, healthy and prosperous.s 8: Am 1996 No 69, Sch 3 [1]; 1997 No 94, Sch 1 [2]; 1998 No 16, Sch 1 [1]; 2000 No 77, Sch 3.4 [1]; 2009 No 67, Sch 1 [1]; 2014 No 64, Sch 2.9 [1]. Subst 2016 No 38, Sch 1 [2].
8A Guiding principles for councils
(1) Exercise of functions generally The following general principles apply to the exercise of functions by councils—(a) Councils should provide strong and effective representation, leadership, planning and decision-making.(b) Councils should carry out functions in a way that provides the best possible value for residents and ratepayers.(c) Councils should plan strategically, using the integrated planning and reporting framework, for the provision of effective and efficient services and regulation to meet the diverse needs of the local community.(d) Councils should apply the integrated planning and reporting framework in carrying out their functions so as to achieve desired outcomes and continuous improvements.(e) Councils should work co-operatively with other councils and the State government to achieve desired outcomes for the local community.(f) Councils should manage lands and other assets so that current and future local community needs can be met in an affordable way.(g) Councils should work with others to secure appropriate services for local community needs.(h) Councils should act fairly, ethically and without bias in the interests of the local community.(i) Councils should be responsible employers and provide a consultative and supportive working environment for staff.(2) Decision-making The following principles apply to decision-making by councils (subject to any other applicable law)—(a) Councils should recognise diverse local community needs and interests.(b) Councils should consider social justice principles.(c) Councils should consider the long term and cumulative effects of actions on future generations.(d) Councils should consider the principles of ecologically sustainable development.(e) Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions.(3) Community participation Councils should actively engage with their local communities, through the use of the integrated planning and reporting framework and other measures.ss 8A–8C: Ins 2016 No 38, Sch 1 [2].
8B Principles of sound financial management
The following principles of sound financial management apply to councils—(a) Council spending should be responsible and sustainable, aligning general revenue and expenses.(b) Councils should invest in responsible and sustainable infrastructure for the benefit of the local community.(c) Councils should have effective financial and asset management, including sound policies and processes for the following—(i) performance management and reporting,(ii) asset maintenance and enhancement,(iii) funding decisions,(iv) risk management practices.(d) Councils should have regard to achieving intergenerational equity, including ensuring the following—(i) policy decisions are made after considering their financial effects on future generations,(ii) the current generation funds the cost of its services.ss 8A–8C: Ins 2016 No 38, Sch 1 [2].
8C Integrated planning and reporting principles that apply to councils
The following principles for strategic planning apply to the development of the integrated planning and reporting framework by councils—(a) Councils should identify and prioritise key local community needs and aspirations and consider regional priorities.(b) Councils should identify strategic goals to meet those needs and aspirations.(c) Councils should develop activities, and prioritise actions, to work towards the strategic goals.(d) Councils should ensure that the strategic goals and activities to work towards them may be achieved within council resources.(e) Councils should regularly review and evaluate progress towards achieving strategic goals.(f) Councils should maintain an integrated approach to planning, delivering, monitoring and reporting on strategic goals.(g) Councils should collaborate with others to maximise achievement of strategic goals.(h) Councils should manage risks to the local community or area or to the council effectively and proactively.(i) Councils should make appropriate evidence-based adaptations to meet changing needs and circumstances.ss 8A–8C: Ins 2016 No 38, Sch 1 [2].
Chapter 4 How can the community influence what a council does?
ch 4, introduction: Am 1997 No 152, Sch 3 [2]; 2009 No 67, Sch 1 [2]. Rep 2016 No 55, Sch 3.17 [2].
Part 1 Open meetings
9 Public notice of meetings
(1) A council must give notice to the public of the times and places of its meetings and meetings of those of its committees of which all the members are councillors.(2) A council and each such committee must have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting.(2A) In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public—(a) the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item), and(b) the requirements of subsection (2) with respect to the availability of business papers do not apply to the business papers for that item of business.(3) The copies are to be available to the public as nearly as possible to the time they are available to councillors.(4) The copies are to be available free of charge.(5) A notice given under this section or a copy of an agenda or of a business paper made available under this section may in addition be given or made available in electronic form.s 9: Am 1995 No 12, Sch 1 [1]; 1997 No 61, Sch 1 [1]; 1997 No 145, Sch 1 [1] [2].
10 Who is entitled to attend meetings?
(1) Except as provided by this Part—(a) everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and(b) a council must ensure that all meetings of the council and of such committees are open to the public.(2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting—(a) by a resolution of the meeting, or(b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.(3) A person may be expelled from a meeting only on the grounds specified in, or in the circumstances prescribed by, the regulations.s 10: Am 1994 No 44, Sch 1 (1). Subst 1997 No 145, Sch 1 [3].
10A Which parts of a meeting can be closed to the public?
(1) A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises—(a) the discussion of any of the matters listed in subclause (2), or(b) the receipt or discussion of any of the information so listed.(2) The matters and information are the following—(a) personnel matters concerning particular individuals (other than councillors),(b) the personal hardship of any resident or ratepayer,(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,(d) commercial information of a confidential nature that would, if disclosed—(i) prejudice the commercial position of the person who supplied it, or(ii) confer a commercial advantage on a competitor of the council, or(iii) reveal a trade secret,(e) information that would, if disclosed, prejudice the maintenance of law,(f) matters affecting the security of the council, councillors, council staff or council property,(g) advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege,(h) information concerning the nature and location of a place or an item of Aboriginal significance on community land,(i) alleged contraventions of any code of conduct requirements applicable under section 440.(3) A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public.(4) A council, or a committee of a council, may allow members of the public to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed.(5), (6) (Repealed)s 10A: Ins 1997 No 145, Sch 1 [3]. Am 1998 No 39, Sch 1 [1] [2]; 2002 No 40, Sch 1 [1] [2]; 2012 No 94, Sch 1 [1].
10B Further limitations relating to closure of parts of meetings to public
(1) A meeting is not to remain closed during the discussion of anything referred to in section 10A(2)—(a) except for so much of the discussion as is necessary to preserve the relevant confidentiality, privilege or security, and(b) if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret—unless the council or committee concerned is satisfied that discussion of the matter in an open meeting would, on balance, be contrary to the public interest.(2) A meeting is not to be closed during the receipt and consideration of information or advice referred to in section 10A(2)(g) unless the advice concerns legal matters that—(a) are substantial issues relating to a matter in which the council or committee is involved, and(b) are clearly identified in the advice, and(c) are fully discussed in that advice.(3) If a meeting is closed during the discussion of a motion to close another part of the meeting to the public (as referred to in section 10A(3)), the consideration of the motion must not include any consideration of the matter or information to be discussed in that other part of the meeting (other than consideration of whether the matter concerned is a matter referred to in section 10A(2)).(4) For the purpose of determining whether the discussion of a matter in an open meeting would be contrary to the public interest, it is irrelevant that—(a) a person may misinterpret or misunderstand the discussion, or(b) the discussion of the matter may—(i) cause embarrassment to the council or committee concerned, or to councillors or to employees of the council, or(ii) cause a loss of confidence in the council or committee.(5) In deciding whether part of a meeting is to be closed to the public, the council or committee concerned must have regard to any relevant guidelines issued by the Departmental Chief Executive.s 10B: Ins 1997 No 145, Sch 1 [3]. Am 2009 No 54, Sch 2.28 [1].
10C Notice of likelihood of closure not required in urgent cases
Part of a meeting of a council, or of a committee of the council of which all the members are councillors, may be closed to the public while the council or committee considers a matter that has not been identified in the agenda for the meeting as a matter that is likely to be considered when the meeting is closed, but only if—(a) it becomes apparent during the discussion of a particular matter that the matter is a matter referred to in section 10A(2), and(b) the council or committee, after considering any representations made under section 10A(4), resolves that further discussion of the matter—(i) should not be deferred (because of the urgency of the matter), and(ii) should take place in a part of the meeting that is closed to the public.s 10C: Ins 1997 No 145, Sch 1 [3].
10D Grounds for closing part of meeting to be specified
(1) The grounds on which part of a meeting is closed must be stated in the decision to close that part of the meeting and must be recorded in the minutes of the meeting.(2) The grounds must specify the following—(a) the relevant provision of section 10A(2),(b) the matter that is to be discussed during the closed part of the meeting,(c) the reasons why the part of the meeting is being closed, including (if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret) an explanation of the way in which discussion of the matter in an open meeting would be, on balance, contrary to the public interest.s 10D: Ins 1997 No 145, Sch 1 [3].
10E (Repealed)
s 10E: Ins 1997 No 145, Sch 1 [3]. Rep 1998 No 39, Sch 1 [3].
11 Public access to correspondence and reports
(1) A council and a committee of which all the members are councillors must, during or at the close of a meeting, or during the business day following the meeting, give reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, the meeting.(2) This section does not apply if the correspondence or reports—(a) relate to a matter that was received or discussed, orwhen the meeting was closed to the public.(b) were laid on the table at, or submitted to, the meeting,(3) This section does not apply if the council or committee resolves at the meeting, when open to the public, that the correspondence or reports, because they relate to a matter specified in section 10A(2), are to be treated as confidential.s 11: Am 1995 No 12, Sch 1 [2]; 1997 No 145, Sch 1 [4].
Part 2
12–13 (Repealed)
ch 4, pt 2: Rep 2009 No 54, Sch 2.28 [2].
s 12: Am 1994 No 44, Sch 1 (2); 1997 No 61, Sch 1 [2]; 1997 No 145, Sch 1 [5]–[9]; 1997 No 152, Sch 3 [3]; 1998 No 39, Sch 1 [4]; 2001 No 19, Sch 1 [1]; 2001 No 93, Sch 1 [2] [3]; 2002 No 20, Sch 1 [1]; 2002 No 40, Sch 1 [3] [4]; 2004 No 73, Sch 3 [1]; 2005 No 19, Sch 2.2; 2008 No 44, Sch 1 [1]; 2008 No 100, Sch 2.3 [1]; 2009 No 67, Sch 1 [3]. Rep 2009 No 54, Sch 2.28 [2].
s 12A: Ins 1997 No 145, Sch 1 [10]. Rep 2009 No 54, Sch 2.28 [2].
s 12B: Ins 1997 No 145, Sch 1 [10]. Am 2000 No 53, Sch 1.15 [1]. Rep 2009 No 54, Sch 2.28 [2].
s 13: Rep 2009 No 54, Sch 2.28 [2].
Part 3 Expressions of community opinion
Division 1 Council polls
14 Council polls
A council may take a poll of electors for its information and guidance on any matter.
Division 2 Constitutional referendums
15 What is a constitutional referendum?
A constitutional referendum is a poll initiated by a council in order to give effect to a matter referred to in section 16.
16 What matters must be dealt with at a constitutional referendum?
A council may not do any of the following unless approval to do so has been given at a constitutional referendum—(a) divide its area into wards or abolish all wards in its area,(b) change the basis on which the mayor attains office (that is, by election by the councillors or by election by the electors),(c) increase or decrease the number of councillors in accordance with the limits under section 224,(d) change the method of ordinary election of councillors for an area divided into wards.(e) (Repealed)s 16: Am 1994 No 44, Sch 1 (3).
17 What is the effect of a constitutional referendum?
(1) The decision made at a constitutional referendum binds the council until changed by a subsequent constitutional referendum.(2) However, such a decision does not apply to a by-election held after the constitutional referendum and before the next ordinary election.
Division 3 General provisions concerning a council poll or constitutional referendum
18 What provisions apply to the conduct of a council poll or constitutional referendum?
Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How are people elected to civic office?) apply to a council poll, and Part 1 and Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional referendum, with such modifications as may be necessary, in the same way as they apply to an election.Note—Part 1 of Chapter 10 identifies the people who are entitled to vote in council elections, and Part 6 governs the conduct of those elections.Division 3 of Part 6 of that Chapter deals with nominations for election, Division 4 with failure to vote and Division 5 with miscellaneous matters such as irregularities of form or procedure in elections, overdue elections and those declared void.
19 Day for taking council poll or constitutional referendum
A council poll or constitutional referendum may be taken on any Saturday, including the Saturday of an ordinary election.
20 When is a question at a council poll or constitutional referendum carried?
(1) The question at a council poll or constitutional referendum is carried if it is supported by a majority of the votes cast.(2) The reference to votes in subsection (1) does not include a reference to any vote that, pursuant to the regulations, is found to be informal.s 20: Am 2006 No 31, Sch 1 [1].
Expressions of community opinion
Types of expression | |||
Council Poll | Constitutional Referendum | ||
Question to be determined | |||
Any question | • Creation or abolition of all wards • Change in the way in which the mayor is chosen • Change in number of councillors • Change in the way councillors are elected for an area divided into wards | ||
Result of Poll | |||
If Yes | If No | If Yes | If No |
Council chooses whether or not to proceed | Change must proceed | Change cannot proceed until passed by a later constitutional referendum | |
Chapter 5 What are a council’s functions?
ch 5, introduction: Rep 2016 No 55, Sch 3.17 [2].
ch 5, note: Am 2016 No 55, Sch 3.17 [3].
21 Functions under this Act
A council has the functions conferred or imposed on it by or under this Act.Note—This Act classifies certain of a council’s functions as service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or ancillary (Chapter 8). Ancillary functions are those functions that assist the carrying out of a council’s service and regulatory functions.A council also has revenue functions (Chapter 15), administrative functions (Chapters 11, 12 and 13) and functions relating to the enforcement of this Act (Chapters 16 and 17).
22 Other functions
A council has the functions conferred or imposed on it by or under any other Act or law.Note—While the main functions of councils are provided for under this Act, councils also have functions under other Acts. An important general provision is contained in section 50 of the Interpretation Act 1987 which provides, in part—(1) A statutory corporation—(a) has perpetual succession,(b) shall have a seal,(c) may take proceedings and be proceeded against in its corporate name,(d) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and(e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions …(4) This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.Some other Acts and some of the functions they confer include—
23 Supplementary, incidental and consequential functions
A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.
23A Departmental Chief Executive’s guidelines
(1) For the purposes of this Act, the Departmental Chief Executive may from time to time prepare, adopt or vary guidelines relating to the exercise by a council of any of its functions.(2) The Departmental Chief Executive may only prepare, adopt or vary guidelines relating to the exercise by a council of functions conferred or imposed on the council by or under any Act or law that is not administered by or the responsibility of the Department of Local Government if the Departmental Chief Executive has first obtained the concurrence of the Minister administering or responsible for the administration of the other Act or law.(3) A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions.(4) The guidelines for the time being in force are to be made available to councils on request and, on payment of such fee (if any) as the Departmental Chief Executive may determine, to any interested person.s 23A: Ins 2000 No 112, Sch 3 [1].
WHAT ARE A COUNCIL’S FUNCTIONS?
A COUNCIL EXERCISES FUNCTIONS UNDER | ||||||
THIS ACT | OTHER ACTS | |||||
SERVICE FUNCTIONS | REGULATORY FUNCTIONS | ANCILLARY FUNCTIONS | REVENUE FUNCTIONS | ADMINISTRATIVE FUNCTIONS | ENFORCEMENT FUNCTIONS | VARIOUS FUNCTIONS |
For example—
|
|
|
| For example
| For example
| See the Note to section 22 |
Chapter 6 What are the service functions of councils?
ch 6, introduction: Rep 2016 No 55, Sch 3.17 [2].
Part 1 General
24 Provision of goods, services and facilities and carrying out of activities
A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.
Part 2 Public land
Note—
This Part requires all land vested in a council (except a road or land to which the Crown Land Management Act 2016 applies) to be classified as either “community” or “operational”.
The classification will generally be achieved by a local environmental plan but may, in some circumstances, be achieved by resolution of the council (see sections 31, 32 and 33).
The purpose of classification is to identify clearly that land which should be kept for use by the general public (community) and that land which need not (operational). The major consequence of classification is that it determines the ease or difficulty with which land may be alienated by sale, leasing or some other means.
Community land must not be sold (except in the limited circumstances referred to in section 45(4)). Community land must not be leased or licensed for more than 21 years and may only be leased or licensed for more than 5 years if public notice of the proposed lease or licence is given and, in the event that an objection is made to the proposed lease or licence, the Minister’s consent is obtained. No such restrictions apply to operational land.
Classification or reclassification of land does not affect any estate or interest a council has in the land.
Community land would ordinarily comprise land such as a public park. Operational land would ordinarily comprise land held as a temporary asset or as an investment, land which facilitates the carrying out by a council of its functions or land which may not be open to the general public, such as a works depot or a council garage.
The use and management of community land is to be regulated by a plan of management. Until a plan of management is adopted, the nature and use of the land must not change.
ch 6, pt 2, note: Am 2017 No 17, Sch 2.10 [3].
Division 1 Classification and reclassification of public land
25 All public land must be classified
All public land must be classified in accordance with this Part.
26 What are the classifications?
There are 2 classifications for public land—“community” and “operational”.Note—On the commencement of this Part, certain land that is vested in or under the control of a council is taken to have been classified as community land by the operation of clause 6 of Schedule 7.
27 How are the classifications made?
(1) The classification or reclassification of public land may be made by a local environmental plan.(2) The classification or reclassification of public land may also be made by a resolution of the council under section 31, 32 or 33.
28 Forwarding of planning proposals to Minister for Planning
(1) A council may not forward a planning proposal to the Minister for Planning under section 56 of the Environmental Planning and Assessment Act 1979 which includes a proposal to classify or reclassify public land that is not owned by the council unless the council has obtained the consent of the owner to the proposed classification or reclassification of public land.(2) A local environmental plan that classifies or reclassifies public land may apply to one or more areas of public land.s 28: Am 2008 No 114, Sch 1.12 [1].
29 Public hearing into reclassification
(1) A council must arrange a public hearing under section 57 of the Environmental Planning and Assessment Act 1979 in respect of a planning proposal under Part 3 of that Act to reclassify community land as operational land, unless a public hearing has already been held in respect of the same matter as a result of a determination under section 56(2)(e) of that Act.(2) A council must, before making any resolution under section 32, arrange a public hearing in respect of any proposal to reclassify land as operational land by such a resolution.s 29: Am 1998 No 140, Sch 1 [1]; 2008 No 114, Sch 1.12 [2].
30 Reclassification of community land as operational
(1) A local environmental plan that reclassifies community land as operational land may make provision to the effect that, on commencement of the plan, the land, if it is a public reserve, ceases to be a public reserve, and that the land is by operation of the plan discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, except for—(a) any reservations that except land out of a Crown grant relating to the land, and(b) reservations of minerals (within the meaning of the Crown Land Management Act 2016).(2) A provision referred to in subsection (1) has effect according to its tenor, but only if the Governor has, before the making of the local environmental plan, approved of the provision.s 30: Am 1998 No 140, Sch 1 [2]–[4]; 2017 No 17, Sch 2.10 [4].
31 Classification of land acquired after 1 July 1993
(1) This section applies to land that is acquired by a council after the commencement of this Division, other than—(a) land to which the Crown Lands Act 1989 or the Crown Land Management Act 2016 applied before the acquisition and continues to apply after the acquisition, and(b) land that is acquired for the purpose of a road.(2) Before a council acquires land, or within 3 months after it acquires land, a council may resolve (in accordance with this Part) that the land be classified as community land or operational land.(2A) Any land acquired by a council that is not classified under subsection (2) is, at the end of the period of 3 months referred to in that subsection, taken to have been classified under a local environmental plan as community land.(2B) While the land remains unclassified—(a) the land may not be used for any purpose other than that for which it was being used immediately before it was acquired, and(b) the council may not dispose of any interest in the land.(3) A council must not resolve under this section that land be classified as operational land if—(a) the land is classified as community land immediately before its acquisition, or(b) the resolution would be inconsistent with any other Act, the terms of any trust applying to the land or the terms of any instrument executed by the donor or transferor of the land.s 31: Am 1994 No 45, Sch 1; 2000 No 112, Sch 3 [2]; 2017 No 17, Sch 2.10 [5].
32 Reclassification of land dedicated under sec 94 of the Environmental Planning and Assessment Act 1979
(1) A council may resolve that land dedicated in accordance with a condition imposed under section 94 of the Environmental Planning and Assessment Act 1979 is to be reclassified as operational land.(2) A council may make such a resolution only if it is satisfied that the land has been found to be unsuitable for the provision, extension or augmentation of public amenities and public services because of any one or more of the following—• the size of the land• the shape of the land• the topography of the land• the location of the land• the difficulty of providing public access to the land.(3) The council must specify in the resolution the grounds on which it is satisfied the land is unsuitable.(4) Before making the resolution, the council must give public notice of the resolution. The public notice must specify a period of not less than 28 days during which submissions may be made to the council.(5) The net proceeds of sale by a council of any land dedicated in accordance with a condition imposed under section 94 of the Environmental Planning and Assessment Act 1979 must be dealt with under that section as if those net proceeds were a monetary contribution paid instead of the dedication.
33 Reclassification of operational land as community land
(1) A council may resolve that public land classified as operational land is to be reclassified as community land.(2) (Repealed)s 33: Am 1994 No 44, Sch 2 (1).
34 Public notice to be given of classification or reclassification by council resolution
(1) A council must give public notice of a proposed resolution to classify or reclassify public land.(2) The public notice must include the terms of the proposed resolution and a description of the public land concerned.(3) The public notice must specify a period of not less than 28 days during which submissions may be made to the council.(4) (Repealed)s 34: Am 1994 No 44, Sch 2 (2); 2000 No 112, Sch 3 [3].
Division 2 Use and management of community land
35 What governs the use and management of community land?
Community land is required to be used and managed in accordance with the following—• the plan of management applying to the land• any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land• this Division.
36 Preparation of draft plans of management for community land
(1) A council must prepare a draft plan of management for community land.(2) A draft plan of management may apply to one or more areas of community land, except as provided by this Division.(3) A plan of management for community land must identify the following—(a) the category of the land,(b) the objectives and performance targets of the plan with respect to the land,(c) the means by which the council proposes to achieve the plan’s objectives and performance targets,and may require the prior approval of the council to the carrying out of any specified activity on the land.(d) the manner in which the council proposes to assess its performance with respect to the plan’s objectives and performance targets,(3A) A plan of management that applies to just one area of community land—(a) must include a description of—(i) the condition of the land, and of any buildings or other improvements on the land, as at the date of adoption of the plan of management, and(ii) the use of the land and any such buildings or improvements as at that date, and(b) must—(i) specify the purposes for which the land, and any such buildings or improvements, will be permitted to be used, and(ii) specify the purposes for which any further development of the land will be permitted, whether under lease or licence or otherwise, and(iii) describe the scale and intensity of any such permitted use or development.(4) For the purposes of this section, land is to be categorised as one or more of the following—(a) a natural area,(b) a sportsground,(c) a park,(d) an area of cultural significance,(e) general community use.(5) Land that is categorised as a natural area is to be further categorised as one or more of the following—(a) bushland,(b) wetland,(c) escarpment,(d) watercourse,(e) foreshore,(f) a category prescribed by the regulations.(6) The regulations may make provision for or with respect to the categorisation of community land under this section, including—(a) defining any expression used in subsection (4) or (5), and(b) prescribing guidelines for the categorisation of community land and the effect of any guidelines so prescribed.s 36: Am 1998 No 140, Sch 1 [5]–[8].
36A Community land comprising the habitat of endangered species
(1) In this section—critical habitat means—(a) an area declared to be critical habitat under the Threatened Species Conservation Act 1995, or(b) an area declared to be critical habitat under Part 7A of the Fisheries Management Act 1994.relevant Director means—(a) in relation to critical habitat being an area declared to be critical habitat under the Threatened Species Conservation Act 1995, the Chief Executive of the Office of Environment and Heritage, and(b) in relation to critical habitat being an area declared to be critical habitat under Part 7A of the Fisheries Management Act 1994, the Secretary of the Department of Industry, Skills and Regional Development.(2) A plan of management adopted in respect of an area of community land, all or part of which consists of critical habitat, is to apply to that area only, and not to other areas of land.(3) A plan of management to be adopted for an area of community land, all or part of which consists of critical habitat—(a) must, subject to any decision of the Chief Executive of the Office of Environment and Heritage under section 146 of the Threatened Species Conservation Act 1995 or any decision of the Secretary of the Department of Industry, Skills and Regional Development under section 220Y of the Fisheries Management Act 1994, state that the land, or the relevant part, is critical habitat, and(b) must, in complying with section 36(3)(a), categorise the land, or the relevant part, as a natural area, and(c) must, in complying with section 36(3)(b), (c) and (d), identify objectives, performance targets and other matters that—(i) take account of the existence of the critical habitat, and(ii) are consistent with the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, and(iii) incorporate the core objectives prescribed under section 36 in respect of community land categorised as a natural area, and(d) must—(i) when public notice is given of the draft plan under section 38, be sent (or a copy must be sent) by the council to the relevant Director, and(ii) incorporate any matter specified by the relevant Director in relation to the land, or the relevant part.(4) If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes critical habitat—(a) the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as a natural area, and(b) the council must amend the plan of management (and, in doing so, the provisions of subsection (3)(a), (c) and (d) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and(c) until the plan of management has been amended as required by paragraph (b)—(i) the use of the land must not be varied, except to the extent necessary to further the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as a natural area, or to terminate the use, and(ii) no lease, licence or other estate may be granted in respect of the land.(5) If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes critical habitat—(a) the plan of management ceases, as from the date the declaration took effect, to apply to that area, and(b) a plan of management must be prepared and adopted by the council for that area, and(c) the plan of management so prepared and adopted must comply with subsection (3).s 36A: Ins 1998 No 140, Sch 1 [9]. Am 2015 No 37, Sch 2 [2]–[4].
36B Community land comprising the habitat of threatened species
(1) In this section—recovery plan means a recovery plan under Part 4 of the Threatened Species Conservation Act 1995 or Division 5 of Part 7A of the Fisheries Management Act 1994.relevant Director means—(a) in relation to a recovery plan under Part 4 of the Threatened Species Conservation Act 1995 or a threat abatement plan under Part 5 of that Act, the Chief Executive of the Office of Environment and Heritage, and(b) in relation to a recovery plan or a threat abatement plan under Division 5 of Part 7A of the Fisheries Management Act 1994, the Secretary of the Department of Industry, Skills and Regional Development.threat abatement plan means a threat abatement plan under Part 5 of the Threatened Species Conservation Act 1995 or Division 5 of Part 7A of the Fisheries Management Act 1994.(2) For the purposes of this section, land is directly affected by a recovery plan or threat abatement plan only if the plan concerned requires measures specified in the plan to be taken by a specified council on or in respect of the land.(3) A plan of management adopted in respect of an area of community land, all or part of which is directly affected by a recovery plan or threat abatement plan, is to apply to that area only, and not to other areas of land.(4) A plan of management to be adopted for an area of community land, all or part of which is directly affected by a recovery plan or threat abatement plan—(a) must state that the land, or the relevant part, is so affected, and(b) must, in complying with section 36(3)(a), categorise the land, or the relevant part, as a natural area, and(c) must, in complying with section 36(3)(b), (c) and (d), identify objectives, performance targets and other matters that—(i) take account of the council’s obligations under the recovery plan or threat abatement plan in relation to the land, and(ii) are otherwise consistent with the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, and(iii) incorporate the core objectives prescribed under section 36 in respect of community land categorised as a natural area, and(d) must—(i) when public notice is given of the draft plan under section 38, be sent (or a copy must be sent) by the council to the relevant Director, and(ii) incorporate any matter specified by the relevant Director in relation to the land, or the relevant part.(5) If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes directly affected by a recovery plan or threat abatement plan—(a) the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as a natural area, and(b) the council must amend the plan of management (and, in doing so, the provisions of subsection (4)(a), (c) and (d) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and(c) until the plan of management has been amended as required by paragraph (b)—(i) the use of the land must not be varied, except to the extent necessary to further the objects of the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994, as the case requires, or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as a natural area, or to terminate the use, and(ii) no lease, licence or other estate may be granted in respect of the land.(6) If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes directly affected by a recovery plan or threat abatement plan—(a) the plan of management ceases, as from the date the declaration took effect, to apply to that area, and(b) a plan of management must be prepared and adopted by the council for that area, and(c) the plan of management so prepared and adopted must comply with subsection (4).s 36B: Ins 1998 No 140, Sch 1 [9]. Am 2015 No 37, Sch 2 [2] [3]
36C Community land containing significant natural features
(1) This section applies to community land that is the subject of a resolution by the council that declares that the land, being the site of—(a) a known natural, geological, geomorphological, scenic or other feature that is considered by the council to warrant protection or special management considerations, oris land to which this section applies.(b) a wildlife corridor,(2) A plan of management adopted in respect of an area of community land, all or part of which is land to which this section applies, is to apply to that area only, and not to other areas of land.(3) A plan of management to be adopted for an area of community land, all or part of which is land to which this section applies—(a) must state that the land, or the relevant part, is land to which this section applies, and the reason why, and(b) must, in complying with section 36(3)(a), categorise the land, or the relevant part, as a natural area, and(c) must, in complying with section 36(3)(b), (c) and (d), identify objectives, performance targets and other matters that—(i) are designed to protect the area, and(ii) take account of the existence of the features of the site identified by the council’s resolution, and(iii) incorporate the core objectives prescribed under section 36 in respect of community land categorised as a natural area.(4) If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes the subject of a resolution of the kind described in subsection (1)—(a) the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as a natural area, and(b) the council must amend the plan of management (and in doing so, the provisions of subsection (3)(a) and (c) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and(c) until the plan of management has been amended as required by paragraph (b)—(i) the use of the land must not be varied, except to the extent necessary to protect the features of the site identified in the council’s resolution or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as a natural area, or to terminate the use, and(ii) no lease, licence or other estate may be granted in respect of the land.(5) If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes the subject of a resolution of the kind described in subsection (1)—(a) the plan of management ceases, as from the date the declaration took effect, to apply to that area, and(b) a plan of management must be prepared and adopted by the council for that area, and(c) the plan of management so prepared and adopted must comply with subsection (3).s 36C: Ins 1998 No 140, Sch 1 [9].
36D Community land comprising area of cultural significance
(1) This section applies to community land that is the subject of a resolution by the council that declares that, because of the presence on the land of any item that the council considers to be of Aboriginal, historical or cultural significance, the land is an area of cultural significance for the purposes of this Part.(2) A plan of management adopted in respect of an area of land, all or part of which is land to which this section applies, is to apply to that land only, and not to other areas.(3) A plan of management to be adopted for an area of community land, all or part of which consists of land to which this section applies—(a) must state that the land, or the relevant part, is an area of cultural significance, and(b) must, in complying with section 36(3)(a), categorise the land, or the relevant part, as an area of cultural significance, and(c) must, in complying with section 36(3)(b), (c) and (d), identify objectives, performance targets and other matters that—(i) are designed to protect the area, and(ii) take account of the existence of the features of the site identified by the council’s resolution, and(iii) incorporate the core objectives prescribed under section 36 in respect of community land categorised as an area of cultural significance, and(d) must—(i) when public notice is given of it under section 38, be sent (or a copy must be sent) by the council to the Chief Executive of the Office of Environment and Heritage, and(ii) incorporate any matter specified by the Chief Executive of the Office of Environment and Heritage in relation to the land, or the relevant part.(4) If, after the adoption of a plan of management applying to just one area of community land, all or part of that area becomes the subject of a resolution of the kind described in subsection (1)—(a) the plan of management is taken to be amended, as from the date the declaration took effect, to categorise the land or the relevant part as an area of cultural significance, and(b) the council must amend the plan of management (and in doing so, the provisions of subsection (3)(a), (c) and (d) apply to the amendment of the plan of management in the same way as they apply to the adoption of a plan of management), and(c) until the plan of management has been amended as required by paragraph (b)—(i) the use of the land must not be varied, except to the extent necessary to protect any item identified in the council’s resolution or in order to give effect to the core objectives prescribed under section 36 in respect of community land categorised as an area of cultural significance, or to terminate the use, and(ii) no lease, licence or other estate may be granted in respect of the land.(5) If, after the adoption of a plan of management applying to several areas of community land, all or part of one of those areas becomes the subject of a resolution of the kind described in subsection (1)—(a) the plan of management ceases, as from the date the declaration took effect, to apply to that area, and(b) a plan of management must be prepared and adopted by the council for that area, and(c) the plan of management so prepared and adopted must comply with subsection (3).s 36D: Ins 1998 No 140, Sch 1 [9]. Am 2015 No 37, Sch 2 [2].
36DA Location of places and items of Aboriginal significance may be kept confidential
(1) This section applies to draft and adopted plans of management for areas of community land, all or part of which consist of land to which section 36D applies.(2) A council may resolve (at the request of any Aboriginal person traditionally associated with the land concerned or on the council’s own initiative) to keep confidential such parts of a draft or adopted plan of management to which this section applies as would disclose the nature and location of a place or an item of Aboriginal significance.(3) Despite any other provision of this Act (including sections 38, 39 and 43) or any other law, councillors and council employees are not to disclose that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under subsection (2), except with the consent of the council.(4) A draft or adopted plan of management that is the subject of a resolution of confidentiality under subsection (2) must contain a note stating that the whole of the plan is affected by the resolution or identifying the parts that are so affected.(5) A council proposing to prepare a draft plan of management to which this section applies must (in accordance with the regulations) consult with the appropriate Aboriginal communities regarding public access to, and use of, information concerning any places or items of Aboriginal significance on the land concerned.s 36DA: Ins 2002 No 40, Sch 1 [5].
36E Core objectives for management of community land categorised as a natural area
The core objectives for management of community land categorised as a natural area are—(a) to conserve biodiversity and maintain ecosystem function in respect of the land, or the feature or habitat in respect of which the land is categorised as a natural area, and(b) to maintain the land, or that feature or habitat, in its natural state and setting, and(c) to provide for the restoration and regeneration of the land, and(d) to provide for community use of and access to the land in such a manner as will minimise and mitigate any disturbance caused by human intrusion, and(e) to assist in and facilitate the implementation of any provisions restricting the use and management of the land that are set out in a recovery plan or threat abatement plan prepared under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36F Core objectives for management of community land categorised as a sportsground
The core objectives for management of community land categorised as a sportsground are—(a) to encourage, promote and facilitate recreational pursuits in the community involving organised and informal sporting activities and games, and(b) to ensure that such activities are managed having regard to any adverse impact on nearby residences.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36G Core objectives for management of community land categorised as a park
The core objectives for management of community land categorised as a park are—(a) to encourage, promote and facilitate recreational, cultural, social and educational pastimes and activities, and(b) to provide for passive recreational activities or pastimes and for the casual playing of games, and(c) to improve the land in such a way as to promote and facilitate its use to achieve the other core objectives for its management.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36H Core objectives for management of community land categorised as an area of cultural significance
(1) The core objectives for management of community land categorised as an area of cultural significance are to retain and enhance the cultural significance of the area (namely its Aboriginal, aesthetic, archaeological, historical, technical or research or social significance) for past, present or future generations by the active use of conservation methods.(2) Those conservation methods may include any or all of the following methods—(a) the continuous protective care and maintenance of the physical material of the land or of the context and setting of the area of cultural significance,(b) the restoration of the land, that is, the returning of the existing physical material of the land to a known earlier state by removing accretions or by reassembling existing components without the introduction of new material,(c) the reconstruction of the land, that is, the returning of the land as nearly as possible to a known earlier state,(d) the adaptive reuse of the land, that is, the enhancement or reinforcement of the cultural significance of the land by the introduction of sympathetic alterations or additions to allow compatible uses (that is, uses that involve no changes to the cultural significance of the physical material of the area, or uses that involve changes that are substantially reversible or changes that require a minimum impact),(e) the preservation of the land, that is, the maintenance of the physical material of the land in its existing state and the retardation of deterioration of the land.(3) A reference in subsection (2) to land includes a reference to any buildings erected on the land.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36I Core objectives for management of community land categorised as general community use
The core objectives for management of community land categorised as general community use are to promote, encourage and provide for the use of the land, and to provide facilities on the land, to meet the current and future needs of the local community and of the wider public—(a) in relation to public recreation and the physical, cultural, social and intellectual welfare or development of individual members of the public, and(b) in relation to purposes for which a lease, licence or other estate may be granted in respect of the land (other than the provision of public utilities and works associated with or ancillary to public utilities).ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36J Core objectives for management of community land categorised as bushland
The core objectives for management of community land categorised as bushland are—(a) to ensure the ongoing ecological viability of the land by protecting the ecological biodiversity and habitat values of the land, the flora and fauna (including invertebrates, fungi and micro-organisms) of the land and other ecological values of the land, and(b) to protect the aesthetic, heritage, recreational, educational and scientific values of the land, and(c) to promote the management of the land in a manner that protects and enhances the values and quality of the land and facilitates public enjoyment of the land, and to implement measures directed to minimising or mitigating any disturbance caused by human intrusion, and(d) to restore degraded bushland, and(e) to protect existing landforms such as natural drainage lines, watercourses and foreshores, and(f) to retain bushland in parcels of a size and configuration that will enable the existing plant and animal communities to survive in the long term, and(g) to protect bushland as a natural stabiliser of the soil surface.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36K Core objectives for management of community land categorised as wetland
The core objectives for management of community land categorised as wetland are—(a) to protect the biodiversity and ecological values of wetlands, with particular reference to their hydrological environment (including water quality and water flow), and to the flora, fauna and habitat values of the wetlands, and(b) to restore and regenerate degraded wetlands, and(c) to facilitate community education in relation to wetlands, and the community use of wetlands, without compromising the ecological values of wetlands.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36L Core objectives for management of community land categorised as an escarpment
The core objectives for management of community land categorised as an escarpment are—(a) to protect any important geological, geomorphological or scenic features of the escarpment, and(b) to facilitate safe community use and enjoyment of the escarpment.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36M Core objectives for management of community land categorised as a watercourse
The core objectives for management of community land categorised as a watercourse are—(a) to manage watercourses so as to protect the biodiversity and ecological values of the instream environment, particularly in relation to water quality and water flows, and(b) to manage watercourses so as to protect the riparian environment, particularly in relation to riparian vegetation and habitats and bank stability, and(c) to restore degraded watercourses, and(d) to promote community education, and community access to and use of the watercourse, without compromising the other core objectives of the category.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
36N Core objectives for management of community land categorised as foreshore
The core objectives for management of community land categorised as foreshore are—(a) to maintain the foreshore as a transition area between the aquatic and the terrestrial environment, and to protect and enhance all functions associated with the foreshore’s role as a transition area, and(b) to facilitate the ecologically sustainable use of the foreshore, and to mitigate impact on the foreshore by community use.ss 36E–36N: Ins 1998 No 140, Sch 1 [9].
37 Requirements of plans of management for community land that is not owned by the council
A plan of management for community land that is not owned by the council—(a) must identify the owner of the land, and(b) must state whether the land is subject to any trust, estate, interest, dedication, condition, restriction or covenant, and(c) must state whether the use or management of the land is subject to any condition or restriction imposed by the owner, and(d) must not contain any provisions inconsistent with anything required to be stated by paragraph (a), (b) or (c).
38 Public notice of draft plans of management
(1) A council must give public notice of a draft plan of management.(2) The period of public exhibition of the draft plan must be not less than 28 days.(3) The public notice must also specify a period of not less than 42 days after the date on which the draft plan is placed on public exhibition during which submissions may be made to the council.(4) The council must, in accordance with its notice, publicly exhibit the draft plan together with any other matter which it considers appropriate or necessary to better enable the draft plan and its implications to be understood.
39 Notice to owner of draft plan of management
(1) Before giving public notice of a draft plan of management in accordance with section 38, the council must forward a copy of the draft plan to the person who owns or controls the land if the land is not owned by the council.(2) The council must include in the draft plan any provisions that may properly be required by the person who owns or controls the land.
40 Adoption of plans of management
(1) After considering all submissions received by it concerning the draft plan of management, the council may decide to amend the draft plan or to adopt it without amendment as the plan of management for the community land concerned.(2) If the council decides to amend the draft plan it must either—(a) publicly exhibit the amended draft plan in accordance with the provisions of this Division relating to the public exhibition of draft plans, or(b) if it is of the opinion that the amendments are not substantial, adopt the amended draft plan without public exhibition as the plan of management for the community land concerned.(2A) If a council adopts an amended plan without public exhibition of the amended draft plan, it must give public notice of that adoption, and of the terms of the amended plan of management, as soon as practicable after the adoption.(3) The council may not, however, proceed to adopt the plan until any public hearing required under section 40A has been held in accordance with section 40A.s 40: Am 1998 No 140, Sch 1 [10]; 2000 No 112, Sch 3 [4] [5].
40A Public hearing in relation to proposed plans of management
(1) The council must hold a public hearing in respect of a proposed plan of management (including a plan of management that amends another plan of management) if the proposed plan would have the effect of categorising, or altering the categorisation of, community land under section 36(4).(2) However, a public hearing is not required if the proposed plan would merely have the effect of altering the categorisation of the land under section 36(5).(3) A council must hold a further public hearing in respect of the proposed plan of management if—(a) the council decides to amend the proposed plan after a public hearing has been held in accordance with this section, and(b) the amendment of the plan would have the effect of altering the categorisation of community land under section 36(4) from the categorisation of that land in the proposed plan that was considered at the previous public hearing.s 40A: Ins 1998 No 140, Sch 1 [11]. Am 2000 No 112, Sch 3 [6]. Subst 2002 No 40, Sch 1 [6].
41 Amendment of plans of management
A council may amend a plan of management adopted under this Division by means only of a plan of management so adopted.
42 Revocation and cessation of plans of management
(1) A plan of management for community land may be revoked by a plan of management adopted under this Division by the council.(2) A plan of management ceases to apply to land if—(a) the land is reclassified as operational land, or(b) in the case of land that is not owned by the council—the land ceases to be controlled by the council.
43 Public availability of plans of management
A plan of management must be available for public inspection at, and purchase from, the office of the council during ordinary office hours.
44 Use of community land pending adoption of plan of management
Pending the adoption of a plan of management for community land, the nature and use of the land must not be changed.
45 What dealings can a council have in community land?
(1) A council has no power to sell, exchange or otherwise dispose of community land.(2) A council may grant a lease or licence of community land, but only in accordance with this Division.(3) A council may grant any other estate in community land to the extent permitted by this Division or under the provisions of another Act.Note—The word estate has a wide meaning. See the Interpretation Act 1987.(4) This section does not prevent a council from selling, exchanging or otherwise disposing of community land for the purpose of enabling that land to become, or be added to, Crown managed land or to become, or be added to, land that is reserved or dedicated under the National Parks and Wildlife Act 1974.s 45: Am 1994 No 44, Sch 2 (3); 1998 No 140, Sch 1 [12] [13]; 2017 No 17, Sch 2.10 [6]; 2023 No 7, Sch 3.19.
46 Leases, licences and other estates in respect of community land—generally
(1) A lease, licence or other estate in respect of community land—(a) may be granted for the provision of public utilities and works associated with or ancillary to public utilities, or(a1) may be granted for the purpose of providing pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider, or(b) may be granted, in accordance with an express authorisation in the plan of management and such provisions of the plan of management as apply to the granting of the lease, licence or other estate—(i) for a purpose prescribed by subsection (4), or for a purpose prescribed by any of sections 36E to 36N as a core objective of the categorisation of the land concerned, or(ii) for a purpose prescribed by the regulations, if the plan of management applies to several areas of community land, or(iii) for a short-term, casual purpose prescribed by the regulations, or(iv) for a residential purpose in relation to housing owned by the council, or(v) (Repealed)but may not otherwise be granted.(c) may be granted in order to allow a filming project to be carried out, whether or not the project is in accordance with the plan of management or is consistent with the core objectives of the categorisation of the land concerned,(2) Despite subsection (1), a lease, licence or other estate in respect of community land may be granted for a purpose mentioned in subsection (1)(b) only if the purpose for which it is granted is consistent with the core objectives, as prescribed in this Part, of its categorisation.(3) A council must not grant a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 30 years.(4) The following purposes are prescribed for the purposes of subsection (1)(b)(i)—(a) the provision of goods, services and facilities, and the carrying out of activities, appropriate to the current and future needs within the local community and of the wider public in relation to any of the following—(i) public recreation,(ii) the physical, cultural, social and intellectual welfare or development of persons,(b) the provision of public roads.(5) Purposes prescribed by subsection (4) in relation to the matters mentioned in subsection (4)(a)(ii) include, but are not limited to, maternity welfare centres, infant welfare centres, kindergartens, nurseries, child care centres, family day-care centres, surf life saving clubs, restaurants or refreshment kiosks.(5A) A council must grant an application under subsection (1)(c) for a lease, licence or other estate in respect of community land in order to allow a filming project to be carried out on the land unless—(a) the community land is land referred to in section 47AA(1), or(b) the plan of management for the land expressly prohibits use of the land for the purposes of filming projects, or(c) the council is satisfied that there are exceptional circumstances that warrant refusal of the application.(5B) Before refusing an application on a ground referred to in subsection (5A)(c), the council must consider whether any concerns it has could be addressed by imposing conditions on the grant.(5C) If the council refuses an application, it must—(a) inform the applicant in writing of its decision as soon as practicable after it is made, and(b) give the applicant reasons in writing for its decision within 3 business days after it is made.(6) A plan of management is void to the extent that it purports to authorise the grant of a lease, licence or other estate in contravention of this section.s 46: Subst 1998 No 140, Sch 1 [14]. Am 2000 No 6, Sch 1 [1]; 2002 No 40, Sch 1 [7]–[9]; 2008 No 39, Sch 1.3 [1]; 2012 No 15, Sch 1 [1].
46A Means of granting leases, licences and other estates
(1) A plan of management is to specify, in relation to the community land to which it applies, any purposes for which a lease, licence or other estate may be granted only by tender in accordance with Division 1 of Part 3.(2) Nothing in this section precludes a council from applying a tender process in respect of the grant of any particular lease, licence or estate.(3) A lease or licence for a term exceeding 5 years may be granted only by tender in accordance with Division 1 of Part 3, unless it is granted to a non-profit organisation.s 46A: Ins 1998 No 140, Sch 1 [14].
47 Leases, licences and other estates in respect of community land—terms greater than 5 years
(1) If a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must—(a) give public notice of the proposal (including on the council’s website), and(b) exhibit notice of the proposal on the land to which the proposal relates, and(c) give notice of the proposal to such persons as appear to it to own or occupy the land adjoining the community land, and(d) give notice of the proposal to any other person, appearing to the council to be the owner or occupier of land in the vicinity of the community land, if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person’s enjoyment of community land.(2) A notice of the proposal must include—• information sufficient to identify the community land concerned• the purpose for which the land will be used under the proposed lease, licence or other estate• the term of the proposed lease, licence or other estate (including particulars of any options for renewal)• the name of the person to whom it is proposed to grant the lease, licence or other estate (if known)• a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice.(3) Any person may make a submission in writing to the council during the period specified for the purpose in the notice.(4) Before granting the lease, licence or other estate, the council must consider all submissions duly made to it.(5) The council must not grant the lease, licence or other estate except with the Minister’s consent, if—(a) a person makes a submission by way of objection to the proposal, or(b) in the case of a lease or licence, the period (including any period for which the lease or licence could be renewed by the exercise of an option) of the lease or licence exceeds 21 years.(6) If the council applies for the Minister’s consent, it must forward with its application—• a copy of the plan of management for the land• details of all objections received and a statement setting out, for each objection, the council’s decision and the reasons for its decision• a statement setting out all the facts concerning the proposal to grant the lease, licence or other estate• a copy of the public notice of the proposal• a statement setting out the terms, conditions, restrictions and covenants proposed to be included in the lease, licence or other estate• if the application relates to a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 21 years, a statement outlining the special circumstances that justify the period of the lease or licence exceeding 21 years• a statement setting out the manner in which and the extent to which the public interest would, in the council’s opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council’s opinion, be adversely affected by the granting of the proposed lease, licence or other estate.(7) On receipt of the application, the Minister must request the Director of Planning to furnish a report concerning the application within such period as the Minister specifies.(8) After considering the application and any report of the Director of Planning, the Minister, if satisfied that—(a) subsections (1), (2) and (6) have been complied with, and(b) such consent would not contravene section 46, andmay consent to the granting of a lease, licence or other estate in respect of the whole or part of the land to which the application relates, subject to such terms and conditions as the Minister specifies.(c) in all the circumstances, it is desirable to grant consent,(8AA) The Minister may consent to a lease or licence referred to in subsection (5)(b) only if the Minister is satisfied that there are special circumstances that justify the period of the lease or licence exceeding 21 years.(8A) On request by any person, the Minister must provide that person, within 14 days of that request, with a written statement of reasons for consenting to, or refusing to consent to, the granting of a lease, licence or other estate in accordance with subsection (8).(9) The Minister’s consent is conclusive evidence that the council has complied with subsections (1), (2) and (6).(10) For the purposes of this section, any provision made by a lease or licence, or by an instrument granting any other estate, in respect of community land, according to which the council—(a) would suffer a disadvantage or penalty if the same or a similar lease, licence or estate were not to be granted, for a further term, after the expiry of the current lease, licence or other estate, oris taken to confer an option for renewal for a term equal to the further term.(b) would enjoy an advantage or benefit if the same or a similar lease, licence or estate were to be so granted,s 47: Am 1998 No 140, Sch 1 [15]–[21]; 1999 No 31, Sch 2.22 [2]; 2012 No 15, Sch 1 [2]–[4]; 2018 No 25, Sch 2.18 [1] [2].
47A Leases, licences and other estates in respect of community land—terms of 5 years or less
(1) This section applies to a lease, licence or other estate in respect of community land granted for a period that (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) does not exceed 5 years, other than a lease, licence or other estate exempted by the regulations.(2) If a council proposes to grant a lease, licence or other estate to which this section applies—(a) the proposal must be notified and exhibited in the manner prescribed by section 47, and(b) the provisions of section 47(3) and (4) apply to the proposal, and(c) on receipt by the council of a written request from the Minister, the proposal is to be referred to the Minister, who is to determine whether or not the provisions of section 47(5)–(9) are to apply to the proposal.(3) If the Minister, under subsection (2)(c), determines that the provisions of section 47(5)–(9) are to apply to the proposal—(a) the council, the Minister and the Director of Planning are to deal with the proposal in accordance with the provisions of section 47(1)–(8), and(b) section 47(9) has effect with respect to the Minister’s consent.s 47A: Ins 1998 No 140, Sch 1 [22].
47AA Special provisions for leases, licences and other estates granted for filming projects
(1) A council that proposes to grant a lease, licence or other estate in respect of community land under section 47A in order to allow a filming project to be carried out on community land—(a) that is critical habitat (as defined in section 36A(1)), or(b) that is directly affected by a recovery plan or threat abatement plan, as referred to in section 36B(2), ormust, in addition to complying with section 47A, notify or advertise the proposal in the manner prescribed by the regulations for the purposes of this section.(c) that is declared to be an area of cultural significance under section 36D(1) because of the presence on the land of any item that the council considers to be of Aboriginal significance,(2) Despite section 47A(2), a council that is of the opinion that a filming project proposed to be carried out under a lease, licence or other estate granted under section 47A will have a minor impact on the environment and on public amenity may state in the notice of the proposal required by section 47A(2) that submissions in writing may be made to the council concerning the proposal within a period, not less than 7 days, specified in the notice.(3) Regulations may be made for or with respect to guidelines that must be taken into consideration by councils in determining whether to grant a lease, licence or other estate in respect of community land in order to allow a filming project to be carried out on the land.s 47AA: Ins 2000 No 6, Sch 1 [2].
47B Lease or licence in respect of natural area
(1) A lease, licence or other estate must not be granted, in respect of community land categorised as a natural area—(a) to authorise the erection or use of a building or structure that is not a building or structure of a kind prescribed by this section or the regulations, or(b) to authorise the erection or use of a building or structure that is not for a purpose prescribed by this section or the regulations.(2) A lease, licence or instrument granting any other estate is void to the extent that its provisions are inconsistent with this section.(3) In this section, erection of a building or structure includes rebuilding or replacement of a building or structure.(4) The following buildings and structures are prescribed for the purposes of subsection (1)(a)—(a) walkways,(b) pathways,(c) bridges,(d) causeways,(e) observation platforms,(f) signs.(5) The following purposes are prescribed for the purposes of subsection (1)(b)—(a) information kiosks,(b) refreshment kiosks (but not restaurants),(c) work sheds or storage sheds required in connection with the maintenance of the land,(d) toilets or rest rooms.(6) Despite subsection (1), a lease, licence or other estate may be granted, in respect of community land categorised as a natural area, to authorise the erection or use of any building or structure necessary to enable a filming project to be carried out, subject to the conditions prescribed by subsection (7) and the regulations.(7) It is a condition of any lease, licence or other estate referred to in subsection (6)—(a) that any building or structure so erected must be temporary in nature, and(b) that as soon as practicable after the termination of the lease, licence or other estate—(i) any building or structure erected must be removed, and(ii) any damage to the land caused by the erection or use of a building or structure must be made good, andat the expense of the person to whom the lease, licence or other estate was granted.(iii) the land must be restored as nearly as possible to the condition that it was in at the time the lease, licence or other estate was granted,s 47B: Ins 1998 No 140, Sch 1 [22]. Am 2000 No 6, Sch 1 [3].
47C Sublease of community land
(1) In addition to any restrictions created by the lease, community land that is the subject of a lease cannot be sublet for a purpose other than—(a) the purpose for which, as notified under section 47(2), the land was to be used under the lease, or(b) a purpose prescribed by the regulations.(2) A lease is void to the extent that its provisions are inconsistent with this section.ss 47C–47F: Ins 1998 No 140, Sch 1 [22].
47D Occupation of community land otherwise than by lease or licence
(1) The exclusive occupation or exclusive use by any person of community land otherwise than in accordance with—(a) a lease, licence or estate to which section 47 or 47A applies, oris prohibited.(b) a sublease or other title directly or indirectly derived from the holder of such a lease, licence or estate,(2) This section does not apply to—(a) the occupation or use of part of the site of a senior citizens’ centre or home or community care facility by a duly appointed manager of the centre, or(b) the occupation or use of community land by persons, and in circumstances, prescribed by the regulations.ss 47C–47F: Ins 1998 No 140, Sch 1 [22].
47E Development of community land
(1) No power of a council under an environmental planning instrument to consent to the carrying out of development on community land may be delegated by the council, if—(a) the development involves the erection, rebuilding or replacement of a building (other than a building exempted by or under subsection (2) from the operation of this paragraph), or(b) the development involves extensions to an existing building that would occupy more than 10 per cent of its existing area, or(c) the development involves intensification, by more than 10 per cent, of the use of the land or any building on the land, or(d) the location of the development has not been specified in the plan of management applying to the land and the development is likely, in the opinion of the council, to be unduly intrusive to nearby residents.(2) The following buildings are exempt from the operation of subsection (1)(a)—(a) toilet facilities,(b) small refreshment kiosks,(c) shelters for persons from the sun and weather,(d) picnic facilities,(e) structures (other than accommodations for spectators) required for the playing of games or sports,(f) playground structures,(g) work sheds or storage sheds,(h) buildings of a kind prescribed by the regulations.(3) An existing area referred to in subsection (1)(b) does not include the area of any awning, balcony, verandah or other thing that extends beyond the main structural outline of the building.(4) A delegation granted before the commencement of this section, to the extent that the delegation could not have been granted if this section had been in force at the time it was granted, is void.ss 47C–47F: Ins 1998 No 140, Sch 1 [22].
47F Dedication of community land as public road
(1) Community land may not be dedicated as a public road under section 10 of the Roads Act 1993 unless—(a) the road is necessary to facilitate enjoyment of the area of community land on which the road is to be constructed or of any facility on that land, and(b) the council has considered means of access other than public road access to facilitate that enjoyment, and(c) there is a plan of management applying only to the land concerned and provision of the public road is expressly authorised in the plan of management.(2) Subsection (1) does not apply to—(a) a dedication of land for the purpose of widening an existing public road, or(b) a dedication of land for the purpose of other roadworks of a minor character, authorised by the plan of management applying to the land, in respect of existing roads, or(c) a dedication of land for the purpose of a road that is the subject of an order under Division 1 of Part 5 of the Roads Act 1993.ss 47C–47F: Ins 1998 No 140, Sch 1 [22].
Division 3 Miscellaneous
ch 6, pt 2, div 3, note: Am 2017 No 17, Sch 2.10 [10] [11].
47G Public hearings
(1) In this section, public hearing means any public hearing required to be arranged under this Part.(2) The person presiding at a public hearing must not be—(a) a councillor or employee of the council holding the public hearing, or(b) a person who has been a councillor or employee of that council at any time during the 5 years before the date of his or her appointment.(3) Not later than 4 days after it has received a report from the person presiding at the public hearing as to the result of the hearing, the council must make a copy of the report available for inspection by the public at a location within the area of the council.s 47G: Ins 1998 No 140, Sch 1 [23].
48 Responsibility for certain public reserves
(1) Except as provided by section 2.22 of the Crown Land Management Act 2016, a council has the control of—(a) public reserves that are not under the control of or vested in any other body or persons and are not held by a person under lease from the Crown, and(b) public reserves that the Governor, by proclamation, places under the control of the council.(2) If any doubt arises as to whether any land comes within the operation of this section, or as to the boundaries of a public reserve, the Governor may, by proclamation, determine the matter.s 48: Am 2005 No 58, Sch 3.3 [1]; 2017 No 17, Sch 2.10 [7].
49 Public reserves and drainage reserves dedicated on subdivision, transfer or conveyance
(1) On the registration by the Registrar-General of a plan on which land is marked with the words “public reserve”, or of a transfer or conveyance to a council of land identified in the transfer or conveyance as being for use as a public reserve, the land is dedicated as a public reserve and vests in the council for an estate in fee simple.(2) If the land so dedicated is under the Real Property Act 1900, the Registrar-General, on registration of the plan or transfer, must create a folio of the Register under that Act for the estate of the council in the land and record in the folio, by reference to this section or otherwise, that the land is dedicated as a public reserve.(3) On the registration by the Registrar-General of a plan on which land is marked with the words “drainage reserve”, or of a transfer or conveyance to a council of land identified in the transfer or conveyance as being for use as a drainage reserve, the land vests in the council for an estate in fee simple and is held by the council for drainage purposes.(4) This section does not apply to a subdivision of land the plan of which was approved by the council before 15 June 1964.s 49: Am 2005 No 68, Sch 5 [1]–[3].
50 Public garden and recreation space and drainage reserves provided for in subdivisions approved before 15.6.1964
(1) This section applies to a subdivision of land the plan of which was approved by the council—• in the case of public garden and recreation space—before 15 June 1964• in the case of drainage reserves—after 24 November 1922 and before 15 June 1964.Note—15 June 1964 is the date of commencement of the Local Government and Conveyancing (Amendment) Act 1964. 24 November 1922 is the date of commencement of the Local Government (Validation and Amendment) Act 1922.(2) If a subdivision made provision for public garden and recreation space, the council may direct—(a) that the space be conveyed or transferred to the council, or(b) because the space is adjacent to land reserved or dedicated for the purpose of public recreation under the Crown Land Management Act 2016 or to a public park that is not vested in the council, that the space be surrendered to the Crown.Public garden and recreation space surrendered to the Crown is taken to be Crown land.(3) If a subdivision made provision for a drainage reserve, the council may direct that the reserve be conveyed or transferred to the council.(4) Instead of directing that land be conveyed or transferred to it, the council may publish a notice in the Gazette notifying that the land is vested in it.(5) On publication of the notice, the land vests in the council for an estate in fee simple and is taken—• in the case of public garden and recreation space—to be dedicated as a public reserve• in the case of drainage reserves—to be held by the council for drainage purposes.(6) When creating a folio of the Register under the Real Property Act 1900 for public garden and recreation space vested in the council under this section, the Registrar-General must record in the folio, by reference to this section or otherwise, that the land is dedicated as a public reserve.s 50: Am 2017 No 17, Sch 2.10 [8].
51 Use of land held for drainage purposes
Land that is held by council for drainage purposes may be used for any other purpose that is not inconsistent with its use for drainage purposes, subject to the Environmental Planning and Assessment Act 1979 and any environmental planning instrument applying to the land.
52 Effect of Environmental Planning and Assessment Act 1979, s 3.16
This Part is not a regulatory instrument for the purposes of section 3.16 of the Environmental Planning and Assessment Act 1979.Note—The Environmental Planning and Assessment Act 1979, section 3.16 empowers an environmental planning instrument to provide that, to the extent necessary to enable development to be carried out in accordance with such an instrument or with a consent granted under that Act, a regulatory instrument (an Act, rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made) is not to apply to the development. This section prevents that Act, section 3.16 from removing any of the controls imposed by this Part.s 52: Am 2023 No 7, Sch 2.34[1] [2]; 2023 No 35, Sch 2.8[1]–[3].
53 The council’s land register
(1) A council is required to keep a register of all land vested in it or under its control.(2) The register must include the following—• the name (if any) by which the land is known• the address or location of the land• the reference to title of the land• the name of the owner of the land• whether or not the land is Crown land• the classification under this Part of the land• whether or not there is a plan of management for the land• the zoning (if any) of the land under an environmental planning instrument• particulars of any agreement (including any lease or licence) entered into by the council with respect to the land.
54 Certificate as to classification of land
(1) A person may apply to the council for a certificate as to the classification of any public land.(2) The application must be in the approved form and be accompanied by the approved fee.(3) The council is to issue a certificate to the applicant stating the classification of the public land as at the date of the certificate.(4) The production of the certificate is taken for all purposes to be conclusive proof of the matter certified.
54A Community land to be described in common terms
Any public notice given by a council with respect to a parcel of community land must describe the land by reference to its common description (such as its address, or the name by which it is generally known) whether or not the notice also describes the land by reference to a more formal legal description.s 54A: Ins 2000 No 112, Sch 3 [7].
54B Transfer of certain institutional private trust land
(1) In this section—assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.institution has the same meaning as in Division 6 of Part 2 of Schedule 7 to the Crown Land Management Act 2016.liabilities means any liabilities, debts or obligations (whether present or future and whether vested or contingent).private trust land means any land reserved, dedicated or granted under any Act or instrument, or otherwise held, for the purposes of an institution, but does not include any such land if it is Crown land (or land otherwise vested in the Crown) or was Crown land (or land otherwise vested in the Crown) before being reserved, dedicated, granted or held for the purposes of an institution.rights means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent).trustees of private trust land means the majority of the trustees for the time being of that land.(2) A council and the trustees of private trust land may enter into an agreement for the land to be transferred to the council.(3) Any such agreement may contain provisions relating to the purposes for which the land is to be used after it is transferred.(4) The trustees may enter into any such agreement to transfer private trust land, and the agreement has effect, despite the terms and provisions of any Act, deed, reservation, dedication, grant or other instrument relating to the land.(5) Land that is transferred to a council under such an agreement is—(a) freed and discharged from any trusts, estates, interests, reservations dedications, conditions, restrictions and provisions affecting the land, and(b) to be used and managed by the council as community land.(6) Subsection (5)(a) is subject to any agreement entered into by the council under this section for the transfer of the land.(7) In preparing a draft plan of management in relation to any land transferred to it under this section, the council must, in addition to the other requirements under Division 2—(a) advise the Minister that it is preparing the draft plan, and(b) take into account the purposes for which the land was reserved, dedicated, granted or held as an institution, and(c) comply as far as practicable with the agreement entered into between the trustees of the private trust land concerned and the council, and(d) before giving public notice of the draft plan in accordance with section 38, consult with such persons or bodies as the council considers appropriate or as the Minister directs.(8) On the transfer of any private trust land to a council under this section, the following provisions have effect—(a) any assets, rights or liabilities in relation to the land, or in relation to the trustees of the land in their capacity as trustees, become the assets, rights or liabilities of the council,(b) all proceedings relating to those assets, rights and liabilities that were commenced by or against the trustees before the transfer are taken to be proceedings pending by or against the council,(c) any act, matter or thing done or omitted to be done in relation to those assets, rights and liabilities by, to or in respect of the trustees before the transfer is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted to be done by, to or in respect of the council.s 54B: Ins 2005 No 58, Sch 3.3 [2]. Am 2017 No 17, Sch 2.10 [9].
How do councils manage public land?
Land owned or controlled by councils consists of | ||
• All other land | ||
What regulates this land? | This land may be classified by a local environmental plan or council resolution as | |
• PUBLIC ROADS—Roads Act 1993 • CROWN LAND—Crown Land Management Act 2016 • COMMONS—Commons Management Act 1989 | Community | Operational |
MANAGEMENT PLAN REQUIRED? | ||
YES | NO | |
IS USE RESTRICTED? | ||
• Use must not change until management plan adopted • Use and management must be in accordance with— | NO | |
IS DISPOSAL RESTRICTED? | ||
• Sale prohibited • No lease or licence over 21 years • Leases or licences over 5 years only with Minister’s consent if anyone objects to the lease or licence | NO | |
RECLASSIFICATION? | ||
By local environmental plan or, in some circumstances, by council resolution | By council resolution | |
Part 2A Environmental upgrade agreements
ch 6, pt 2A: Ins 2010 No 110, Sch 1 [1].
54C Definitions
In this Part—environmental upgrade agreement—see section 54D.environmental upgrade charge—see section 54G.environmental upgrade works—see section 54E.owners corporation for a strata scheme means the owners corporation for the strata scheme constituted under the Strata Schemes Management Act 2015.strata building means a building containing a lot or part of a lot that is the subject of a strata scheme.strata scheme means a strata scheme under the Strata Schemes Development Act 2015.s 54C: Ins 2010 No 110, Sch 1 [1]. Am 2015 No 50, Sch 4.16 [1]; 2015 No 51, Sch 9.13 [2].
54D Environmental upgrade agreement
(1) A council may enter into an environmental upgrade agreement with a building owner and a finance provider in relation to a building.(2) An environmental upgrade agreement is an agreement under which—(a) a building owner agrees to carry out environmental upgrade works in respect of a building, and(b) a finance provider agrees to advance funds to the building owner to finance those environmental upgrade works, and(c) the council agrees to levy a charge on the relevant land for the purpose of repaying the advance to the finance provider.(3) A building owner is a person who is the owner of the land on which the building is erected.(4) For a building erected on land that is the subject of a strata scheme, the owners corporation for the strata scheme is taken to be the building owner.(5) The function of entering into an environmental upgrade agreement can be delegated by a council only to the general manager of the council. The delegation must specify the building or buildings to which the delegation relates.(6) Other persons may also be party to an environmental upgrade agreement.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54E What are environmental upgrade works?
(1) For the purposes of this Part, environmental upgrade works are works to improve the energy, water or environmental efficiency or sustainability of the building to which the agreement relates.(2) Environmental upgrade works include any works declared by the regulations to be environmental upgrade works.(3) Environmental upgrade works do not include any works declared by the regulations to be excluded works.(4) More than one environmental upgrade agreement may be entered into in relation to the same environmental upgrade works.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54F Buildings that can be subject of environmental upgrade agreement
(1) An environmental upgrade agreement must relate to an existing building (that is, a building that is complete and ready for lawful use and occupation at the time the agreement is entered into).(2) The building must be a non-residential building or a strata building that is the subject of a multi-residence scheme.(3) A non-residential building is a building used wholly or predominantly for commercial, industrial or other non-residential purposes.(4) A multi-residence scheme is a strata scheme comprising more than 20 lots (disregarding utility lots and lots used for parking).(5) The building must be located in the council’s area at the time that the agreement is entered into.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54G Contents of environmental upgrade agreement
(1) An environmental upgrade agreement must specify the following—(a) the environmental upgrade works to be carried out by or on behalf of the building owner under the agreement,(b) the amount of the advance or advances to be made by the finance provider under the agreement,(c) the arrangements for repayment of the advance or advances (the agreed repayment arrangements).(2) The agreed repayment arrangements may require the council to levy a charge (an environmental upgrade charge) for the purpose of discharging the building owner’s obligation to repay the advance or advances made by the finance provider under the agreement (including any interest or other charges payable under the agreement).(3) The agreed repayment arrangements must specify—(a) the amount of the environmental upgrade charge or charges to be levied by the council under the agreement (or a method for calculating the amount of the charge or charges), and(b) the date or dates on which the charge or charges are to be levied by the council, and(c) any adjustments to be made to the charge or charges in the event of late payment.(4) Money paid to a council in respect of an environmental upgrade charge is to be paid by the council to the finance provider in accordance with the environmental upgrade agreement.(5) An environmental upgrade agreement may permit the early repayment of any amount payable under the agreement.(6) An environmental upgrade agreement must be in writing.(7) An environmental upgrade agreement may include any other provisions agreed to by the parties.(8) An environmental upgrade agreement may be varied or terminated by further agreement between the council, the finance provider and the building owner for the time being.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54H Council fees under agreement
(1) An environmental upgrade agreement may authorise a council to deduct from any money paid in respect of an environmental upgrade charge, and retain, as a council fee—(a) a service fee, being a fee to cover any costs incurred by the council in entering into, or administering, the agreement, and(b) a late payment fee, being the amount, or a part of the amount, charged under the agreement for late payment of an environmental upgrade charge.(2) The environmental upgrade agreement must specify the amount of, or a method for calculating, any such council fee.(3) Part 10 of Chapter 15 does not apply in respect of a council fee charged under an environmental upgrade agreement.(4) However, section 610D applies to the service fee component of the council fee.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54I Power to levy environmental upgrade charge
(1) A council may levy an environmental upgrade charge in accordance with an environmental upgrade agreement.(2) An environmental upgrade charge may be levied only on the land on which the building to which the environmental upgrade agreement relates is erected or, in the case of a strata building, the land that is the subject of the relevant strata scheme.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54J Application of other charge provisions to environmental upgrade charge
(1) The relevant provisions apply in respect of an environmental upgrade charge in the same way as they apply in respect of a charge levied under Chapter 15.(2) The relevant provisions are the following provisions—(a) Chapter 15—sections 543, 544, 545, 546(1), (3), (4) and (5), 550, 561, 569, 571, 573, 602 and 603,(b) Chapter 17—sections 695, 696 and 712 and Division 5 of Part 2.(3) The relevant provisions apply with the following modifications—(a) in section 545, a reference to a provision of Part 4 of Chapter 15 is taken to include a reference to a provision of this Part,(b) in section 550, a reference to a rate or charge levied under this Act is taken to include a reference to any amount charged under an environmental upgrade agreement for late payment of an environmental upgrade charge.(4) The regulations may further apply, disapply or modify the operation of any provision of this Act that relates to charges levied by a council in respect of an environmental upgrade charge.ss 54D–54J: Ins 2010 No 110, Sch 1 [1].
54K Special provisions relating to strata buildings
(1) An environmental upgrade charge that is levied in respect of land that is the subject of a strata scheme is payable by the owners corporation for that strata scheme.(2) This section has effect despite section 561, as applied by this Part.(3) An owners corporation may determine whether environmental upgrade charges are to be paid from its sinking fund or its administrative fund.(4) An owners corporation for a strata scheme must, on the request of an owner of a lot that forms part of the strata scheme, provide to the owner a copy of any environmental upgrade agreement that relates to premises the subject of the strata scheme.(5) The regulations may disapply or modify the operation of any provision of the Strata Schemes Management Act 2015 in relation to environmental upgrade charges.s 54K: Ins 2010 No 110, Sch 1 [1]. Am 2015 No 50, Sch 4.16 [2].
54L Payment of environmental upgrade charge
(1) An environmental upgrade charge is to be paid within 28 days after notice of the charge is served on the person liable to pay it.(2) When an environmental upgrade charge is paid to a council, the council may deduct from the payment, and retain, any amount that the council is authorised to deduct and retain as a council fee under the agreement.(3) Money paid to a council in respect of an environmental upgrade charge, other than any council fee retained by the council, may be held, pending its payment to the finance provider to which it is to be paid, in the council’s trust fund in trust for the finance provider.(4) A separate account is to be established in the council’s trust fund for money paid in respect of environmental upgrade charges.(5) Money paid to a council in respect of an environmental upgrade charge does not form part of the council’s general income under Part 2 of Chapter 15.s 54L: Ins 2010 No 110, Sch 1 [1]. Am 2013 No 47, Sch 1.18.
54M Liability of council to recover charge
(1) A council must use its best endeavours to recover an environmental upgrade charge in accordance with any requirements imposed on it by an environmental upgrade agreement.(2) However, a council is not liable for any failure by a person to pay an environmental upgrade charge or part of an environmental upgrade charge.(3) Accordingly, any such failure does not make the council liable to pay the outstanding amount to the finance provider.ss 54M–54O: Ins 2010 No 110, Sch 1 [1].
54N Recovery of contributions from lessees
(1) A provision of a lease may require a lessee to pay to the lessor a contribution towards an environmental upgrade charge payable under an environmental upgrade agreement that relates to premises that are the subject of the lease.(2) The amount recoverable by the lessor as a contribution must not exceed a reasonable estimate of the cost savings to be made by the lessee, as a consequence of the environmental upgrade works provided for by the environmental upgrade agreement, during the period to which the contribution relates.(3) An environmental upgrade agreement may make provision for the recovery of contributions by a lessor (including by providing for the methodology by which the cost savings to be made by a lessee are to be estimated), in which case a contribution is recoverable only in accordance with that agreement.(4) The methodology may permit both savings made directly by the lessee and a proportion of savings made by all occupants of the relevant building to be counted towards the cost savings made by the lessee.(5) The parties to a lease may agree that subsections (2)–(4) do not apply in respect of the lease. In such a case, the lease may make alternative provision for the payment by the lessee of a contribution towards an environmental upgrade charge payable under an environmental upgrade agreement.(6) A lessor is not entitled to recover a contribution from a lessee towards the payment of an environmental upgrade charge unless the lessor provides to the lessee, on request by the lessee, a copy of the environmental upgrade agreement to which the contribution relates.(7) This section applies despite section 23 of the Retail Leases Act 1994 and section 40 of the Residential Tenancies Act 2010.(8) To avoid doubt, a contribution referred to in this section is an outgoing for the purposes of the Retail Leases Act 1994.Note—See, in particular, section 27 of the Retail Leases Act 1994.(9) The regulations may make further provision for or with respect to the making of contributions towards environmental upgrade charges by lessees.(10) In particular, the regulations may disapply or modify the operation of any provision of the Retail Leases Act 1994 or the Residential Tenancies Act 2010 in relation to any such contribution.(11) In this section—lease means an agreement under which a person grants to another person for value a right of occupation of premises.ss 54M–54O: Ins 2010 No 110, Sch 1 [1].
54O Agreements to be made on a voluntary basis
(1) Entry into an environmental upgrade agreement is voluntary.(2) A council must not require a person to enter into an environmental upgrade agreement, whether as a condition of a development consent or a requirement of an order under the Environmental Planning and Assessment Act 1979 or by any other means.(3) This section does not prevent a planning agreement under the Environmental Planning and Assessment Act 1979 making provision for entry into an environmental upgrade agreement.ss 54M–54O: Ins 2010 No 110, Sch 1 [1].
54P Reporting requirements
(1) A council must include particulars of any environmental upgrade agreement entered into by the council in its annual report, in accordance with any requirements imposed under section 406.(2) The Departmental Chief Executive is to consult with the Chief Executive of the Office of Environment and Heritage regarding the requirements that are to apply under that section in respect of environmental upgrade agreements.(3) A council is authorised to disclose information about any environmental upgrade agreement to which it is a party to the Chief Executive of the Office of Environment and Heritage.(4) A council is required to disclose any information about an environmental upgrade agreement to which it is a party that is requested by the Chief Executive of the Office of Environment and Heritage.s 54P: Ins 2010 No 110, Sch 1 [1]. Am 2015 No 37, Sch 2 [5].
54Q Guidelines
(1) The Minister for Climate Change and the Environment may, with the concurrence of the Minister administering this Act, from time to time prepare, adopt or vary guidelines relating to environmental upgrade agreements and the functions of councils under this Part.(2) In particular, the guidelines may specify provisions that may be included in an environmental upgrade agreement with respect to—(a) the making of contributions by lessees towards environmental upgrade charges payable under an agreement (including by providing for the methodology by which the cost savings to be made by a lessee as a consequence of environmental upgrade works are to be estimated), and(b) progress or implementation reports to be made by a building owner under an environmental upgrade agreement.(3) The methodology may permit both savings made directly by the lessee and a proportion of savings made by all occupants of the relevant building to be counted towards the cost savings made by the lessee.(4) A council must take the guidelines into consideration before exercising any of its functions under this Part.(5) The regulations may adopt the guidelines, or any part of the guidelines, as mandatory requirements.(6) A council must comply with any mandatory requirements of the guidelines in exercising its functions under this Part.(7) Guidelines made under this section are to be published in the Gazette.s 54Q: Ins 2010 No 110, Sch 1 [1].
54R Changes to council area
The functions of a council under an environmental upgrade agreement may be exercised by any council to which the assets, rights and liabilities of the council with respect to the agreement are transferred by proclamation referred to in section 213.s 54R: Ins 2010 No 110, Sch 1 [1].
Part 3 Restraints and qualifications that apply to service functions
Division 1 Tendering
55 Requirements for tendering
(1) A council must invite tenders before entering into any of the following contracts—(a) a contract to carry out work that, by or under any Act, is directed or authorised to be carried out by the council,(b) a contract to carry out work that, under some other contract, the council has undertaken to carry out for some other person or body,(c) a contract to perform a service or to provide facilities that, by or under any Act, is directed or authorised to be performed or provided by the council,(d) a contract to perform a service or to provide facilities that, under some other contract, the council has undertaken to perform or provide for some other body,(e) a contract for the provision of goods or materials to the council (whether by sale, lease or otherwise),(f) a contract for the provision of services to the council (other than a contract for the provision of banking, borrowing or investment services),(g) a contract for the disposal of property of the council,(h) a contract requiring the payment of instalments by or to the council over a period of 2 or more years,(i) any other contract, or any contract of a class, prescribed by the regulations.(2) Tenders are to be invited, and invitations to tender are to be made, by public notice and in accordance with any provisions prescribed by the regulations.(2A) Nothing in this section prevents a council from tendering for any work, service or facility for which it has invited tenders.(3) This section does not apply to the following contracts—(a) subject to the regulations, a contract for the purchase of goods, materials or services specified by a person prescribed by the regulations made with another person so specified, during a period so specified and, if a rate is so specified, at a rate not exceeding the rate so specified,(b) a contract entered into by a council with the Crown (whether in right of the Commonwealth, New South Wales or any other State or a Territory), a Minister of the Crown or a statutory body representing the Crown,(c) a contract entered into by a council with another council,(d) a contract for the purchase or sale by a council of land,(e) a contract for the leasing or licensing of land by the council, other than the leasing or licensing of community land for a term exceeding 5 years to a body that is not a non-profit organisation (see section 46A),(f) a contract for purchase or sale by a council at public auction,(g) a contract for the purchase of goods, materials or services specified by the NSW Procurement Board or the Department of Administrative Services of the Commonwealth, made with a person so specified, during a period so specified and, if a rate is so specified, at a rate not exceeding the rate so specified,(h) a contract for the employment of a person as an employee of the council,(i) a contract where, because of extenuating circumstances, remoteness of locality or the unavailability of competitive or reliable tenderers, a council decides by resolution (which states the reasons for the decision) that a satisfactory result would not be achieved by inviting tenders,(j) contract for which, because of provisions made by or under another Act, a council is exempt from the requirement to invite a tender,(k) a contract made in a case of emergency,(l) a contract to enter into a public-private partnership,(m) if a council has entered into a public-private partnership—a contract entered into by the council for the purposes of carrying out a project under the public-private partnership (but only to the extent that the contract is part of the project that has been assessed or reviewed under Part 6 of Chapter 12),(n) a contract involving an estimated expenditure or receipt of an amount of—(i) less than $250,000 or another amount as may be prescribed by the regulations, or(ii) less than $150,000 or another amount as may be prescribed by the regulations for a contract involving the provision of services where those services are, at the time of entering the contract, being provided by employees of the council,(o) a contract that is an environmental upgrade agreement (within the meaning of Part 2A),(p) a contract or arrangement between a council and the Electoral Commissioner for the Electoral Commissioner to administer the council’s elections, council polls and constitutional referendums,(q) a contract made with a person or body approved as a disability employment organisation under the Public Works and Procurement Act 1912 for the purchase of goods or services in relation to which the person or body is so approved.Note—Despite the person or body being approved under the Public Works and Procurement Act 1912, that Act does not otherwise apply to the procurement of goods and services by or for a council.(4) A council that invites tenders from selected persons only is taken to comply with the requirements of this section if those persons are selected—(a) from persons who have responded to a public advertisement for expressions of interest in the particular contract for which tenders are being invited, or(b) from persons who have responded to a public advertisement for recognition as recognised contractors with respect to contracts of the same kind as that for which tenders are being invited.(5)–(7) (Repealed)s 55: Am 1994 No 44, Sch 2 (4); 2000 No 53, Sch 1.15 [2]; 2000 No 112, Sch 3 [8] [9]; 2003 No 8, Sch 1 [1]; 2004 No 113, Sch 1 [2] (am 2005 No 59, Sch 2.2 [2]); 2005 No 64, Sch 1.16 [1]; 2007 No 72, Sch 1 [1] [2]; 2010 No 110, Sch 1 [2]; 2011 No 24, Sch 1 [1]; 2011 No 27, Sch 2.26 [1]; 2012 No 43, Sch 3.4; 2019 No 6, Sch 1 [1]–[3].
55A Extended operation of section 55 to council-related entities
(1) A council must comply with the requirements of section 55 (including any regulations made under that section) even though the contract to which that section applies involves something being done to or by an entity that the council has formed or participated in forming.(2) However, if the entity concerned is formed under a public-private partnership, subsection (1) has effect only to the extent that the contract is not part of a project that has been assessed or reviewed in accordance with Part 6 of Chapter 12.(3) In this section—entity means any partnership, trust, corporation, joint venture, syndicate or other body (whether or not incorporated), but does not include any such entity that is of a class prescribed by the regulations as not being within this definition.s 55A: Ins 2007 No 72, Sch 1 [3].
Division 2 Water supply, sewerage and stormwater drainage works and facilities
ch 6, pt 3, div 2, hdg: Subst 1994 No 44, Sch 2 (5).
ch 6, pt 3, div 2, note: Ins 1994 No 82, Sch 3 (1). Rep 1995 No 94, Sch 5.8 [1].
56 Application of Division
(1) The provisions of this Division relating to water supply and sewerage (but not stormwater drainage) do not apply to—(a) land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or(b) land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991.(2) The provisions of this Division (sections 57, 58 and 59 excepted) relating to water supply and sewerage (but not stormwater drainage) do not apply to land within the area of operations of a water supply authority constituted under the Water Management Act 2000.(3) Despite subsection (1), the provisions of this Division relating to sewerage, but not water supply, do apply to land within the City of Hawkesbury area prescribed by the regulation for the purposes of this section.s 56: Am 1994 No 44, Sch 2 (6); 1994 No 88, Sch 7; 1996 No 69, Sch 3 [2] [3]. Subst 2000 No 92, Sch 8.16 [1]. Am 2004 No 91, Sch 2.47 [1]; 2012 No 94, Sch 1 [2]; 2021 No 26, Sch 2.9[1].
57 Construction of works
(1) The Minister for Water, Property and Housing may, on the application of one or more councils, construct works of water supply, sewerage or stormwater drainage under the Public Works Act 1912.(2) The Minister for Water, Property and Housing may agree to the construction of the works by the council or councils concerned on the Minister’s behalf.s 57: Am 1994 No 44, Sch 2 (7); 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2020 No 30, Sch 3.27[1].
58 Handing over of works
(1) The Minister for Water, Property and Housing may, on or before the completion of any such works, by notice given to the council or councils concerned, charge the council or councils with the care and management of the whole or part of the works (and of land on which the works are, or are being, constructed).(2) The notice may include provisions relating to the responsibility of the council or councils concerned for financial costs associated with the works.(3) The notice has effect according to its tenor from the date the notice is given to the council or councils concerned.(4) If more than one council is charged with the care and management of works, each council may be charged with the care and management of a specified portion of the works or the councils may be charged jointly as to the whole or a specified portion.s 58: Am 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2020 No 30, Sch 3.27[1].
59 Vesting of works
(1) The Minister for Water, Property and Housing may, by notice published in the Gazette, do either or both of the following—(a) declare that land acquired for the purposes of any such works, or any part of the works, is vested in the council or councils,(b) declare that all right, title and interest of the Minister in any such works, or part of the works, are vested in the council or councils.(2) The notice has effect according to its tenor from the date the notice is published in the Gazette.(3) If, on the date on which a notice under this section is published in the Gazette, the council or councils concerned have not made all payments to the Minister that may finally be required to be made in respect of the cost of the acquisition of the land and of constructing the works, or part of the works (whether or not that cost has been finally determined), the council or councils concerned continue to be liable to make those payments.s 59: Am 1994 No 44, Sch 2 (8); 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2020 No 30, Sch 3.27[1].
59A Ownership of water supply, sewerage and stormwater drainage works
(1) Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).(2) A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed.(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.s 59A: Ins 2002 No 40, Sch 1 [10]. Am 2009 No 17, Sch 3.12 [1].
60 Ministerial approval required for certain council works
A council must not, except in accordance with the approval of the Minister for Water, Property and Housing, do any of the following—(a) (Repealed)(b) as to water treatment works—construct or extend any such works,(c) as to sewage—provide for sewage from its area to be discharged, treated or supplied to any person,(d) (Repealed)Note—Approval is required under Part 3 of Chapter 3 of the Water Management Act 2000 for the construction or use by a council of water supply works or flood works within the meaning of that Act.s 60: Am 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2015 No 26, Sch 3.4[1] [2]; 2020 No 30, Sch 3.27[1].
61 Ministerial directions concerning certain works
(1) The Minister for Water, Property and Housing or a person authorised by the Minister may direct a council to take such measures as are specified in the direction to ensure the proper safety, maintenance and working of any of the following works—(a) (Repealed)(b) water treatment works,(c) sewage treatment works.Note—Under section 19 of the Dams Safety Act 2015, Dams Safety NSW may direct a council (as the owner of a declared dam within the meaning of that Act) to take measures to ensure the safety and proper maintenance of the dam.(2) The council must comply with the direction.s 61: Am 1994 No 44, Sch 2 (9); 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2015 No 26, Sch 3.4[3] [4]; 2020 No 30, Sch 3.27[1].
62 Ministerial powers during emergencies
(1) The Minister for Water, Property and Housing or a person authorised by the Minister may direct a council to take such measures with respect to any works to which this Division applies as are specified in the direction if the Minister or person is of the opinion that an emergency exists that constitutes a threat to public health or public safety or that is causing or is likely to cause damage to property.(2) A direction may not be given unless the Minister for Water, Property and Housing has obtained the concurrence of the Minister for Health.(3) The council must comply with the direction.(4) A direction under this section may not be given to a council in respect of a dam.Note—Under section 21(5) of the Dams Safety Act 2015, Dams Safety NSW may direct a council (as the owner of a declared dam within the meaning of that Act) to take measures with respect to the dam during the period that an emergency order under that section is in force.s 62: Am 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2015 No 26, Sch 3.4[5]; 2020 No 30, Sch 3.27[1].
63 Effect of failure to comply with directions
(1) If a council does not comply with a direction under section 61 or 62 within a reasonable time after notice requiring compliance with the direction is given to it by the Minister for Water, Property and Housing or the person authorised by the Minister, the Minister may do all such things as may be necessary to give effect to the direction.(2) The Minister may recover any cost incurred from the council as a debt.s 63: Am 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2020 No 30, Sch 3.27[1].
64 Construction of works for developers
Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 applies to a council exercising functions under this Division in the same way as it applies to a water supply authority exercising functions under that Act.s 64: Subst 1997 No 152, Sch 3 [4]; 2000 No 92, Sch 8.16 [2].
65 Powers of Minister for Water, Property and Housing—entry on to land and other powers
Part 2 of Chapter 8 applies, in relation to works of water supply and sewerage to which this Division applies, to the Minister for Water, Property and Housing and a person authorised by the Minister in the same way as it applies to a council and a council employee (or other person) authorised by the council.s 65: Am 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2020 No 30, Sch 3.27[1].
66 Appointment of administrator
(1) The Minister for Water, Property and Housing (the appointing Minister) may, with the concurrence of the Minister for Local Government, by order published in the Gazette, appoint an administrator to exercise all the functions under this Division, or specified functions under this Act, of a council.(1A) If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.(2) Such an order may not be made until after a public inquiry concerning the exercise by the council of the relevant functions has been held.(3) The appointment of one or more persons as a commissioner or commissioners to hold the public inquiry may, despite Part 8 of Chapter 13, be made by the Minister for Water, Property and Housing with the concurrence of the Minister for Local Government.(4) An administrator is to be paid a salary determined by the appointing Minister, with the concurrence of the Minister for Local Government, from the council’s funds.(5) An administrator has, during the administrator’s term of office and to the exclusion of the council, the functions the administrator was appointed to exercise.(5A) If more than one administrator is appointed for a council, the appointing Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one administrator.(6) The regulations may make provision for or with respect to—• the appointment and term of office of an administrator• an administrator’s accommodation, and the accommodation of persons assisting the administrator, at the offices of the council• the assistance to be rendered to an administrator by the council’s employees.s 66: Am 2000 No 53, Sch 1.15 [3]; 2012 No 94, Sch 1 [3]; 2013 No 44, Sch 1 [1]–[5]; 2020 No 30, Sch 3.27[1].
Division 3 Private works
ch 6, pt 3, div 3, note: Ins 1994 No 82, Sch 3 (2). Rep 1995 No 94, Sch 5.8 [2].
67 Private works
(1) A council may, by agreement with the owner or occupier of any private land, carry out on the land any kind of work that may lawfully be carried out on the land.Note—Examples of the kind of work that a council might carry out under this section include—• paving and roadmaking• kerbing and guttering• fencing and ditching• tree planting and tree maintenance• demolition and excavation• land clearing and tree felling• water, sewerage and drainage connections• gas and electricity connections.(2) A council must not carry out work under this section unless—(a) it proposes to charge an approved fee for carrying out the work as determined by the council in accordance with Division 2 of Part 10 of Chapter 15, or(b) if it proposes to charge an amount less than the approved fee, the decision to carry out the work is made, and the proposed fee to be charged is determined, by resolution of the council at an open meeting before the work is carried out.(3) A council must include details or a summary of any resolutions made under this section and of work carried out under subsection (2)(b) in its next annual report.(4) A report of work to which subsection (2)(b) applies must be given to the next meeting of the council after the work is carried out specifying—• the person for whom the work was carried out• the nature of the work• the type and quantity of materials used• the charge made for those materials• the total of the number of hours taken by each person who carried out the work• the total amount charged for carrying out the work (including the charge made for materials)• the reason for carrying out the work.(5) This section does not apply to work carried out by a council, or by two or more councils jointly, for another council or for a public authority.(6) This section does not apply to any graffiti removal work carried out by a council in accordance with Part 4 of the Graffiti Control Act 2008.s 67: Am 2001 No 19, Sch 1 [2]; 2002 No 20, Sch 1 [2]; 2003 No 8, Sch 1 [2]; 2008 No 100, Sch 2.3 [2].
Division 4
67A–67C (Repealed)
ch 6, pt 3, div 4, hdg: Ins 2002 No 20, Sch 1 [3]. Rep 2008 No 100, Sch 2.3 [3].
ch 6, pt 3, div 4: Rep 2008 No 100, Sch 2.3 [3].
s 67A: Ins 2001 No 19, Sch 1 [3]. Subst 2002 No 20, Sch 1 [3]. Rep 2008 No 100, Sch 2.3 [3].
s 67B: Ins 2002 No 20, Sch 1 [3]. Rep 2008 No 100, Sch 2.3 [3].
s 67C: Ins 2002 No 20, Sch 1 [3]. Rep 2008 No 100, Sch 2.3 [3].
Chapter 7 What are the regulatory functions of councils?
ch 7, introduction: Am 1994 No 82, Sch 3 (3); 1995 No 94, Sch 5.8 [3]; 1997 No 152, Sch 3 [5]–[8]. Rep 2016 No 55, Sch 3.17 [2].
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.TableApprovalsPart A Structures or places of public entertainment1Install a manufactured home, moveable dwelling or associated structure on land2, 3 (Repealed)Part B Water supply, sewerage and stormwater drainage work1Carry out water supply work2Draw water from a council water supply or a standpipe or sell water so drawn3Install, alter, disconnect or remove a meter connected to a service pipe4Carry out sewerage work5Carry out stormwater drainage work6Connect 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 sewerPart C Management of waste1For fee or reward, transport waste over or under a public place2Place waste in a public place3Place a waste storage container in a public place4Dispose of waste into a sewer of the council5Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility6Operate a system of sewage management (within the meaning of section 68A)Part D Community land1Engage in a trade or business2Direct or procure a theatrical, musical or other entertainment for the public3Construct a temporary enclosure for the purpose of entertainment4For fee or reward, play a musical instrument or sing5Set up, operate or use a loudspeaker or sound amplifying device6Deliver a public address or hold a religious service or public meetingPart E Public roads1Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway2Expose 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 road3 (Repealed)Part F Other activities1Operate a public car park2Operate a caravan park or camping ground3Operate a manufactured home estate4Install a domestic oil or solid fuel heating appliance, other than a portable appliance5Install or operate amusement devices6 (Repealed)7Use a standing vehicle or any article for the purpose of selling any article in a public place8, 9 (Repealed)10Carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulationss 68: Am 1994 No 44, Sch 3 (1) (a) (b); 1994 No 82, Sch 3 (4); 1994 No 88, Sch 7; 1995 No 94, Sch 5.8 [4]; 2000 No 92, Sch 8.16 [3].s 68, table: Am 1994 No 44, Sch 3 (1) (c); 1997 No 152, Sch 3 [9]–[11]; 2000 No 112, Sch 3 [10] [11]; 2001 No 93, Sch 1 [4]; 2002 No 40, Sch 1 [11]; 2003 No 8, Sch 1 [3].
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., 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, orand includes a drain connected to such a facility or device.(b) a waste treatment device intended to process sewage,s 68A: Ins 2002 No 40, Sch 1 [12].
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.s 68B: Ins 2010 No 57, Sch 1.14.
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.s 69: Subst 1997 No 152, Sch 3 [12].
70, 71 (Repealed)
s 70: Am 1997 No 61, Sch 1 [3]–[5]. Rep 1997 No 152, Sch 3 [13].
s 71: Am 1997 No 61, Sch 1 [6]. Rep 2001 No 93, Sch 1 [5].
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, orin respect of the carrying out of that activity, or(ii) are to apply with such modifications as are specified in the direction,or give directions under both paragraphs (a) and (b).(b) such requirements as are specified in the direction are to apply to the carrying out of that activity,(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, orin respect of the carrying out of that activity, or(ii) are to apply with such modifications as are specified in the direction,or give directions under both paragraphs (a) and (b) and the council must give the reasons for its direction or directions.(b) such requirements as are specified in the direction are to apply to the carrying out of that activity,(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.s 82: Am 1997 No 61, Sch 1 [7]–[9].
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, orwhichever is the sooner, is not to be taken into consideration in calculating the period referred to in section 105.(c) the period specified by the council ends,(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.s 89: Am 1997 No 94, Sch 1 [3] [4]; 1998 No 120, Sch 2.23 [1].
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.s 92: Am 1994 No 44, Sch 3 (2); 2001 No 93, Sch 1 [6] [7].
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, orby relying on a certificate to that effect from an appropriately qualified person.(b) an activity has been carried out in compliance with an approval,(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.s 95: Am 1994 No 44, Sch 3 (3); 1997 No 152, Sch 3 [14].
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, oror both.(b) a consent, approval or permission under another Act,
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.s 97: Am 1994 No 44, Sch 3 (4).
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.s 99: Am 1994 No 44, Sch 3 (5); 2001 No 93, Sch 1 [8].
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.s 100: Am 1996 No 69, Sch 3 [4].
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.s 102: Am 1996 No 69, Sch 4 [1]. Subst 1996 No 122, Sch 7.9 [1].
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, andis, for the purpose of the council’s making an endorsement, sufficient evidence of the matter referred to in subsection (1)(b).(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,(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.s 102A: Ins 1996 No 122, Sch 7.9 [1]. Am 1997 No 152, Sch 3 [15].
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.s 103: Am 1997 No 61, Sch 1 [10]; 1997 No 152, Sch 3 [16].
104 (Repealed)
s 104: Rep 1997 No 152, Sch 3 [17].
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), orthe 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.(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,(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.s 105: Am 1997 No 152, Sch 3 [18].
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.s 106: Am 1996 No 69, Sch 3 [5]; 1997 No 61, Sch 1 [11].
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, andapply 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.(b) Division 1 of Part 5,(5) The relevant provisions of—(a) sections 78, 79, 80, 84, 85, 87, 88, 99 and 105, andapply 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.(b) Division 1 of Part 5,s 107: Am 1994 No 44, Sch 3 (6); 1996 No 69, Sch 3 [6].
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).s 107A: Ins 2002 No 40, Sch 1 [13].
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.s 108: Am 1994 No 44, Sch 3 (7).
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
ch 7, pt 1, div 4: Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4].
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.s 114: Am 1994 No 44, Sch 3 (7); 1996 No 139, Sch 2.22 [3]. Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4].
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.s 115: Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4].
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).s 116: Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4]. Am 2008 No 39, Sch 1.3 [2] [3].
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.s 117: Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4].
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.s 118: Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4].
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.s 119: Rep 1997 No 152, Sch 3 [19]. Ins 2000 No 6, Sch 1 [4].
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.s 119A: Ins 2000 No 6, Sch 1 [4].
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.s 119B: Ins 2000 No 6, Sch 1 [4]. Am 2008 No 39, Sch 1.3 [4] [5].
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.s 119C: Ins 2000 No 6, Sch 1 [4]. Am 2008 No 39, Sch 1.3 [6]–[8].
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.s 119CA: Ins 2008 No 39, Sch 1.3 [9].
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.s 119D: Ins 2000 No 6, Sch 1 [4]. Subst 2008 No 39, Sch 1.3 [10].
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.s 119E: Ins 2000 No 6, Sch 1 [4].
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.s 119F: Ins 2000 No 6, Sch 1 [4]. Am 2008 No 39, Sch 1.3 [11].
Division 5 Accreditation of components, processes and designs
ch 7, pt 1, div 5, hdg: Am 1994 No 44, Sch 3 (8); 2001 No 93, Sch 1 [9].
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.ss 120–122: Am 1994 No 44, Sch 3 (9); 2001 No 93, Sch 1 [10].
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.ss 120–122: Am 1994 No 44, Sch 3 (9); 2001 No 93, Sch 1 [10].
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.ss 120–122: Am 1994 No 44, Sch 3 (9); 2001 No 93, Sch 1 [10].
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.s 123A: Ins 1996 No 69, Sch 4 [2].
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.s 123B: Ins 1996 No 69, Sch 4 [2].
The main procedures concerning approvals
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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—
(Repealed) (Repealed) (Repealed) (Repealed)
(Repealed)
(Repealed)
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.s 126: Am 2017 No 17, Sch 2.10 [12] [13].
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.s 128: Am 1994 No 82, Sch 3 (6); 1995 No 94, Sch 5.8 [6].
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.s 128A: Ins 2006 No 52, Sch 1 [2].
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.s 129: Am 2006 No 52, Sch 1 [3].
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.s 131A: Ins 1997 No 61, Sch 1 [14].
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.s 133: Am 2005 No 98, Sch 3.40 [1].
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.s 138: Am 1996 No 69, Sch 4 [3]; 2006 No 52, Sch 1 [4].
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.s 138A: Ins 1996 No 69, Sch 4 [4]. Am 1997 No 152, Sch 3 [27].
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)s 140: Am 1996 No 69, Schs 3 [11], 4 [5].
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.s 141: Am 1996 No 69, Sch 3 [12] [13].
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.s 142: Am 1994 No 44, Sch 3 (11); 1998 No 138, Sch 2.6; 2006 No 52, Sch 1 [5].
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.s 143: Am 2006 No 52, Sch 1 [6].
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)
s 149: Rep 1997 No 152, Sch 3 [28].
s 150: Am 1994 No 44, Sch 3 (12); 1996 No 69, Sch 4 [6]. Rep 1997 No 152, Sch 3 [28].
s 151: Am 1996 No 69, Sch 4 [7] [8]. Rep 1997 No 152, Sch 3 [28].
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)s 153: Am 1997 No 152, Sch 3 [29].
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.s 154: Am 1997 No 152, Sch 3 [30]; 2010 No 127, Sch 4.15 [4].
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.s 156: Am 1997 No 152, Sch 3 [31].
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
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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.s 158: Am 1997 No 152, Sch 3 [32].
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.s 159: Am 2006 No 52, Sch 1 [7].
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, ora 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.(b) a specified aspect of anything for which an order may be given under Part 2,(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.s 164: Am 1994 No 44, Sch 3 (13).
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)
ch 7, pt 4 (ss 168–175): Rep 1997 No 152, Sch 3 [33].
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, oras the case requires.(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,s 176: Am 1994 No 44, Sch 3 (14); 1996 No 69, Sch 3 [14].
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.s 177: Am 1994 No 44, Sch 3 (15).
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, orif 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.(b) a council’s delay in granting the approval,(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.s 180: Am 1996 No 69, Sch 3 [15]; 1997 No 152, Sch 3 [34]; 2006 No 52, Sch 1 [8].
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.s 182: Am 2006 No 52, Sch 1 [9].
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)
ch 7, pt 5, div 2 (s 185): Rep 1997 No 152, Sch 3 [35].
Chapter 8 What ancillary functions does a council have?
ch 8, introduction: Rep 2016 No 55, Sch 3.17 [2].
Part 1 Acquisition of land
186 For what purposes may a council acquire land?
(1) A council may acquire land (including an interest in land) for the purpose of exercising any of its functions.(2) Without limiting subsection (1), a council may acquire—(a) land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or(b) land which forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired under this Part.(3) However, if the land acquired is, before its acquisition, community land vested in a council, the acquisition does not discharge the land from any trusts, estates, interests, dedications, conditions, restrictions or covenants that affected the land or any part of the land immediately before that acquisition.s 186: Am 1994 No 45, Sch 1.
187 How does a council acquire land?
(1) Land that a council is authorised to acquire under this Part may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.(2) A council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.
188 Restriction on compulsory acquisition of land for re-sale
(1) A council may not acquire land under this Part by compulsory process without the approval of the owner of the land if it is being acquired for the purpose of re-sale.(2) However, the owner’s approval is not required if—(a) the land forms part of, or adjoins or lies in the vicinity of, other land acquired at the same time under this Part for a purpose other than the purpose of re-sale, or(b) the owner of the land cannot be identified after diligent inquiry has been made and at least 6 months has elapsed since that inquiry was made.(3) For the purposes of subsection (2)(b), diligent inquiry has the meaning given by the regulations, and includes the giving of notice of the proposed acquisition to the New South Wales Aboriginal Land Council and to the relevant Local Aboriginal Land Council.s 188: Am 1996 No 69, Sch 3 [16].
189 No restriction as to area
Land may be acquired by a council under this Part even if it lies wholly or partly outside the council’s area.
190 Special provisions relating to land containing minerals
Division 4 of Part 8 of the Public Works Act 1912 applies to a council and land acquired by a council in the same way as that Division applies to a Constructing Authority and land acquired by a Constructing Authority.
Part 2 Entry on to land and other powers
191 Power of entry
(1) For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.(2) Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.
191A Power of entry—construction and maintenance of water supply, sewerage and stormwater drainage works
(1) Without limiting section 191, a council employee (or other person) authorised by a council may enter any premises to carry out water supply work, sewerage work or stormwater drainage work on or under the premises (being work that the council is authorised by this or any other Act to carry out).(2) Subsection (1) does not apply to premises that comprise a National Parks and Wildlife reserve.s 191A: Ins 2002 No 40, Sch 1 [14].
192 Inspections and investigations
For the purpose of enabling a council to exercise its functions, a person authorised to enter premises under this Part may—(a) inspect the premises and any food, vehicle, article, matter or thing on the premises, and(b) for the purpose of an inspection—(i) open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and(ii) require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act or the regulations, and(c) take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and(d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and(e) examine and test any meter, and(f) measure a supply of water, and(g) take samples or photographs in connection with any inspection.
193 Notice of entry
(1) Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises.(2) The notice must specify the day on which the person intends to enter the premises and must be given before that day.(3) This section does not require notice to be given—(a) if entry to the premises is made with the consent of the owner or occupier of the premises, or(b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or(c) if entry is required urgently and the case is one in which the general manager has authorised in writing (either generally or in the particular case) entry without notice, or(d) if entry is made solely for the purpose of reading a meter or other device for measuring—(i) the supply of water to the premises from the council’s water mains, or(ii) the discharge of sewage or other waste matter from the premises into the council’s sewer mains.s 193: Am 1994 No 44, Sch 4.
194 Use of force
(1) Reasonable force may be used for the purpose of gaining entry to any premises (other than residential premises) under a power conferred by this Part, but only if authorised by the council in accordance with this section.(2) The authority of the council—(a) must be in writing, and(b) must be given in respect of the particular entry concerned, and(c) must specify the circumstances which are required to exist before force may be used.
195 Notification of use of force or urgent entry
(1) A person authorised to enter premises under this Part who—(a) uses force for the purpose of gaining entry to the premises, ormust promptly advise the council.(b) enters the premises in an emergency without giving written notice to the owner or occupier,(2) The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances.
196 Care to be taken
(1) In the exercise of a function under this Part, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it.(2) As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases.(3) If, in the exercise of a function under this Part, any pit, trench, hole or bore is made, the council must, if the owner or occupier of the premises so requires—(a) fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and(b) without unnecessary delay, fill it up or level it or sufficiently slope it down.
197 Recovery of cost of entry and inspection
If a person authorised by a council enters any premises under this Part for the purpose of making an inspection and as a result of that inspection, under a power conferred on the council, the council requires any work to be carried out on or in the premises, the council may recover the reasonable costs of the entry and inspection from the owner or occupier of the premises.
198 Compensation
A council must pay compensation for any damage caused by any person authorised by the council under this Part to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this or any other Act.Note—Section 730 provides for the resolution of claims for compensation under this section in cases of dispute between the person claiming the compensation and the council.
199 Authority to enter premises
(1) A power conferred by this Part to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises.(2) The authority must be a written authority which is issued by the council and which—(a) states that it is issued under this Act, and(b) gives the name of the person to whom it is issued, and(c) describes the nature of the powers conferred and the source of the powers, and(d) states the date (if any) on which it expires, and(e) describes the kind of premises to which the power extends, and(f) bears the signature of the general manager.(3) This section does not apply to a power conferred by a search warrant.
200 In what circumstances can entry be made to a residence?
The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except—(a) with the permission of the occupier of that part of the premises, or(b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or(c) under the authority conferred by a search warrant.
201 Search warrants
(1) An authorised person may apply to an authorised officer if the authorised person has reasonable grounds for believing that the provisions of this Act or the regulations or the terms of an approval or order under this Act have been or are being contravened in or on any premises.(2) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant—(a) to enter the premises, and(b) to search the premises for evidence of a contravention of this Act or the regulations or the terms of an approval or order.(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(4) Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer—(a) may accompany an authorised person executing a search warrant issued under this section, and(b) may take all reasonable steps to assist the authorised person in the exercise of the person’s functions under this section.(5) In this section—has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.s 201: Am 2002 No 103, Sch 4.50 [1]–[4].
Part 3 Special entertainment precincts
ch 8, pt 3: Ins 2020 No 40, Sch 4.7.
202 Special entertainment precinct
(1) This section is about establishing a special entertainment precinct.(2) A special entertainment precinct is an area in which—(a) (Repealed)(b) requirements about noise attenuation apply to certain types of development in the area, and(c) dedicated live music and performance venues are authorised to trade for an additional 60 minutes under the Liquor Act 2007, section 12A(4).(3) A special entertainment precinct may be established by—(a) the council for the area in which the precinct will be located, by identifying the precinct in a local environmental plan that applies to the land on which the precinct will be located, or(b) the Minister in a State Environmental Planning Policy, but only at the request of the council for the area in which the precinct will be located.(4) A special entertainment precinct may consist of—(a) a single premises, or(b) a precinct, streetscape or otherwise defined locality in the council’s area.(5) If a council establishes a special entertainment precinct, the council must—(a) prepare a plan for regulating noise from amplified music from premises in the special entertainment precinct and publish it on the council’s website, and(b) notify the following persons about the special entertainment precinct including, for example, by notice published on its website or a notation on planning certificates for land in the precinct—(i) residents living in the area,(ii) persons moving into the area.(5A) A plan prepared under subsection (5)(a) must provide—(a) for the trading hours for premises in the special entertainment precinct, and(b) that the process for managing complaints in relation to licensed premises in the special entertainment precinct is the process set out in the Liquor Act 2007, Part 5, Division 3.(5B) A condition of a development consent that is inconsistent with the following matters in a plan prepared under subsection (5)(a) ceases to have effect to the extent of the inconsistency—(a) the trading hours for premises in a special entertainment precinct,(b) the regulation of noise from amplified music from premises in the special entertainment precinct.(6) In this section—dedicated live music and performances venue has the same meaning as in the Liquor Act 2007.planning certificate means a certificate under section 10.7 of the Environmental Planning and Assessment Act 1979.s 202: Am 1996 No 69, Sch 4 [9]–[11]. Rep 1997 No 152, Sch 3 [36]. Ins 2020 No 40, Sch 4.7. Am 2023 No 53, Sch 4.4[1AA] (ins 2024 No 47, Sch 1.1) [1]–[4].
203 Minister’s guidelines
(1) The Minister may, by notice published on the Department’s website, issue, adopt or vary guidelines about—(a) the establishment of special entertainment precincts, and(b) the operation, revocation or suspension of special entertainment precincts.(2) A council must act in accordance with a guideline under subsection (1) in exercising its functions under this Part.s 203: Am 1996 No 69, Sch 4 [12]. Rep 1997 No 152, Sch 3 [36]. Ins 2020 No 40, Sch 4.7.
Chapter 9 How are councils established?
ch 9, introduction: Rep 2016 No 55, Sch 3.17 [2].
Part 1 Areas
Division 1 How are areas constituted and dissolved?
ch 9, pt 1, div 1, hdg: Am 1999 No 38, Sch 1 [1].
204 Constitution of areas
(1) The Governor may, by proclamation, constitute any part of New South Wales as an area.(2) The area is to have the boundaries determined by the Governor by proclamation.(3) An area must be a single area of contiguous land.
205 Land taken to be included in an area
(1) The land and water between high-water mark and low-water mark on the foreshores of an area is taken to be in the area.(2) The land and water enclosed by—(a) a straight line drawn between the low-water marks of consecutive headlands to any body of water on the foreshores of an area, andis taken to be in the area.(b) those foreshores,(3) Land on the boundary of an area is taken to be in the area if—(a) it is reclaimed from tidal waters, orand it is privately owned or has a structure erected on it.(b) it is on the foreshores of the area and beyond low-water mark,(4) This section is subject to any proclamation made under this Division.
206 Constitution of cities
The Governor may, by proclamation, constitute an area as a city.
207 Names of areas
The Governor may, by proclamation, name or rename an area.
208 Effect of changing name
When an area is constituted as a city or an area or ward is renamed, a reference in an Act or instrument to the old name of the area, the council concerned or the ward is taken to include a reference to the new name of the area, council or ward.
209 (Repealed)
s 209: Rep 1999 No 38, Sch 1 [2].
210 Division of areas into wards
(1) The council may divide its area into divisions, called “wards”.(2) The council may abolish all wards.(3) The council may alter ward boundaries.(4) The council may name or rename a ward.(5) A council must not divide an area into wards or abolish all wards unless it has obtained approval to do so at a constitutional referendum.(6) A by-election held after an alteration of ward boundaries and before the next ordinary election is to be held as if the boundaries had not been altered.(7) The division of a council’s area into wards, or a change to the boundaries of a ward, must not result in a variation of more than 10 per cent between the number of electors in each ward in the area.s 210: Am 2002 No 40, Sch 1 [15].
210A Consultation, public notice and exhibition of proposals regarding ward boundaries
(1) Before dividing a council’s area into wards or altering a council’s ward boundaries, the council must—(a) consult the Electoral Commissioner and the Australian Statistician to ensure that, as far as practicable, the proposed boundaries of its wards correspond to the boundaries of appropriate districts (within the meaning of the Electoral Act 2017) and census districts, and to ensure that the proposed boundaries comply with section 210(7), and(b) prepare and publicly exhibit a plan detailing the proposed division or alteration (the ward boundary plan).(2) The council must give public notice of the following—(a) the place at which the ward boundary plan may be inspected,(b) the period for which the plan will be exhibited (being a period of not less than 28 days),(c) the period during which submissions regarding the ward boundary plan may be made to the council (being a period of not less than 42 days after the date on which the ward boundary plan is placed on public exhibition).(3) The council must, in accordance with its notice, publicly exhibit the ward boundary plan together with any other matter that it considers appropriate or necessary to better enable the plan and its implications to be understood.(4) Any person may make a submission to the council regarding the ward boundary plan within the period referred to in subsection (2)(c).(5) The council must consider submissions made in accordance with this section.s 210A: Ins 2002 No 40, Sch 1 [16]. Am 2009 No 102, Sch 6.3 [1]; 2017 No 66, Sch 8.16 [1].
210B Approval to abolish all wards in council’s area
(1) A council may resolve to make an application to the Minister to approve the abolition of all wards of the council’s area.(2) The council must give not less than 42 days’ public notice of its proposed resolution.(3) After passing the resolution, the council must forward to the Minister a copy of the resolution, a summary of any submissions received by it and its comments concerning those submissions.(4) The Minister may approve the application or may decline to approve it.(5) If the Minister approves the application, all the wards in the council’s area are abolished with effect on and from the day appointed for the next ordinary election of councillors after the application is approved.(6) Section 16 does not apply to a resolution of a council to make an application to the Minister under this section.(7) An application may be made under this section only within the period of 5 months from the commencement of this section.(8) Nothing in this section prevents a council from making more than one application under this section or from taking action under section 210 to abolish all wards of the council’s area.s 210B: Ins 2011 No 24, Sch 1 [2].
211 Ward boundaries
(1) The council of an area divided into wards must keep the ward boundaries under review.(2) If—(a) during a council’s term of office, the council becomes aware that the number of electors in one ward in its area differs by more than 10 per cent from the number of electors in any other ward in its area, andthe council must, as soon as practicable, alter the ward boundaries in a manner that will result in each ward containing a number of electors that does not differ by more than 10 per cent from the number of electors in each other ward in the area.(b) that difference remains at the end of the first year of the following term of office of the council,(3) Nothing in subsection (2) prevents a council that has become aware of the discrepancy referred to in subsection (2)(a) from altering its ward boundaries before the end of the first year of the following term of office of the council.s 211: Am 1994 No 44, Sch 5 (1); 1998 No 141, Sch 1 [1]–[3]. Subst 2002 No 40, Sch 1 [17].
212 Dissolution of areas
(1) The Governor may, by proclamation, dissolve the whole or part of an area.(2) The Minister may not recommend the making of a proclamation to dissolve the whole or part of an area until after a public inquiry has been held and the Minister has considered the report made as a consequence of the inquiry.
213 Facilitating provisions of proclamations
(1) A proclamation of the Governor for the purposes of this Division may include such provisions as are necessary or convenient for giving effect to the proclamation, including provisions for or with respect to—• the transfer or apportionment of assets, rights and liabilities• the transfer of staff• the application of regulations• the alteration of ward boundaries• the holding of elections• the delivery or retention of records• the termination, cessation, dissolution or abolition of anything existing before the proclamation takes effect• the preservation or continuance of anything existing before the proclamation takes effect• the making of appointments• the inclusion or exclusion, as a constituent council of any related county council or related joint organisation, of the council of any area constituted or dissolved by the proclamation.Note—If a proclamation for the purposes of this Division transfers staff members (other than a general manager) from the employment of one council to another council, the provisions of Part 6 of Chapter 11 apply in relation to the transferred staff members.(2) Such a proclamation may—(a) apply generally or be limited in its application by reference to specified exceptions or factors, or(b) apply differently according to different factors of a specified kind, oror may do any combination of those things.(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,(3) In this section—, in relation to an area constituted or dissolved by a proclamation of the Governor, means a county council that has an area of operations that includes the whole or part of the area so constituted or dissolved., in relation to an area constituted or dissolved by a proclamation of the Governor, means a joint organisation for a joint organisation area that includes the whole or part of the area so constituted or dissolved.s 213: Am 1994 No 44, Sch 5 (2); 1999 No 38, Sch 1 [3] [4]; 2003 No 30, Sch 1 [1]; 2017 No 65, Sch 1 [1] [2]; 2024 No 29, Sch 1[1].
Division 2 What must be done before areas can be constituted?
ch 9, pt 1, div 2, hdg: Am 1999 No 38, Sch 1 [5].
Note—
This Division sets out the things that must be done before areas can be constituted.
Land may only be constituted as an area if the public has been notified of the proposal to do so and the councils and electors concerned have been given an opportunity to make representations concerning the proposal.
It also provides for the Boundaries Commission to consider proposals to constitute areas.
ch 9, pt 1, div 2, note: Subst 2002 No 40, Sch 1 [18].
214 Exercise of functions under sec 204
A function under section 204 may be exercised only after a proposal for the exercise of the function is dealt with under this Division.s 214: Am 1999 No 38, Sch 1 [6].
215 Who may initiate a proposal?
(1) A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors.(2) An appropriate minimum number of electors is—(a) if a proposal applies to the whole of an area or the proposal is that part of an area be constituted as a new area—250 of the enrolled electors for the existing area or 10 per cent of them, whichever is the greater, or(b) if a proposal applies only to part of an area—250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.
216 Public notice to be given of a proposal
The Minister must give at least 28 days’ public notice of a proposal that the Minister decides to proceed with.
217 Making of representations
(1) Within the period of public notice, representations concerning the proposal may be made to the Minister by a council or elector affected by the proposal.(2) The Minister must consider all representations made.
218 Referral of proposal for examination and report
(1) If the Minister decides to continue with the proposal, the Minister must refer it for examination and report to the Boundaries Commission.(2) The Minister may recommend to the Governor that the proposal be implemented—(a) with such modifications as arise out of the Boundaries Commission’s report, andbut may not do so if of the opinion that the modifications constitute a new proposal.(b) with such other modifications as the Minister determines,(3) The Minister may decline to recommend to the Governor that the proposal be implemented.s 218: Am 1999 No 38, Sch 1 [7]; 2002 No 40, Sch 1 [19] [20].
Division 2A How are areas amalgamated or their boundaries altered?
ch 9, pt 1, div 2A: Ins 1999 No 38, Sch 1 [8].
218A Amalgamation of areas
(1) The Governor may, by proclamation, amalgamate two or more areas into one or more new areas.(2) On the date specified in the proclamation as the date on which the areas are to be amalgamated—(a) the areas are dissolved, and(b) the new area or new areas are constituted, and(c) subject to section 218C, the councillors of the former areas cease to hold office.(3) Divisions 1 and 2 apply to a new area constituted by a proclamation under this section in the same way as they apply to an area constituted by a proclamation under section 204.(4) Section 212(2) does not apply to the dissolution of a former area by a proclamation under this section.s 218A: Ins 1999 No 38, Sch 1 [8].
218B Alteration of boundaries of areas
The Governor may, by proclamation, alter the boundaries of one or more areas.s 218B: Ins 1999 No 38, Sch 1 [8].
218C Facilitating provisions of proclamations
(1) A proclamation of the Governor for the purposes of this Division may include provisions of the same kind as are referred to in section 213.(2) Such a proclamation may also include provisions for or with respect to—(a) the appointment of administrators for any area constituted by the proclamation, and(b) the continuation in office, as councillors of any area constituted by the proclamation, of any or all of the councillors of any area dissolved by the proclamation.Note—If a proclamation for the purposes of this Division transfers staff members (other than a general manager) from the employment of one council to another council, the provisions of Part 6 of Chapter 11 apply in relation to the transferred staff members.(3) Section 224(1) does not apply to any councillors who continue in office by virtue of such a proclamation.s 218C: Ins 1999 No 38, Sch 1 [8]. Am 2003 No 30, Sch 1 [2]; 2024 No 29, Sch 1[2].
218CA Maintenance of staff numbers in rural centres
(1) This section applies to a council (the transferee council)—(a) that is constituted as a result of the amalgamation of two or more areas, where the council of one of those areas (the previous council) employed regular staff at a rural centre in the area of the transferee council immediately before the amalgamation took effect, or(b) whose geographical area is increased as a result of the alteration of the boundaries of two or more areas, where a council (the previous council) whose geographical area is reduced as a result of the alteration employed regular staff at a rural centre in the area of the transferee council immediately before the alteration took effect.(2) The transferee council must ensure that the number of regular staff of the council employed at the rural centre is, as far as is reasonably practicable, maintained at not less than the same level of regular staff as were employed by the previous council at the centre immediately before the amalgamation or alteration of boundaries took effect.(3) Subsection (2) does not have effect, or ceases to have effect, in such circumstances (if any) as are prescribed by the regulations.(4) In this section—regular staff of a council means—(a) staff appointed to a position within the organisational structure of the council, otherwise than on a temporary basis, andbut does not include the general manager.(b) casual staff who are engaged by the council on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months and who have a reasonable expectation of continuing employment with the council,rural centre has the meaning given by section 354B.s 218CA: Ins 2004 No 25, Sch 4 [1]. Am 2024 No 29, Sch 1[3].
218CB Transitional provision for maintenance of pre-amalgamation rate paths
(1) The Minister may make a determination for the purpose of requiring a new council, in levying rates for land, to maintain the rate path last applied for the land by the relevant former council.(2) A determination applies to the levying of rates by the new council for the 4 rating years immediately following the rating year for which the relevant proclamation makes provision for the levying of rates (the relevant period).(3) Without limiting the content of a determination, a determination is to set out the methodology that the new council is to apply when setting rates for land for the relevant period, including in relation to the following—(a) the structure of rates,(b) the categorisation or subcategorisation of land for rating purposes,(c) the calculation of the new council’s notional general income for rating purposes,(d) the treatment of any variation of a former council’s notional general income under Part 2 of Chapter 15 that would have been applicable, had the amalgamation effected by the relevant proclamation not occurred, to the determination of rates and charges for land within the new area.(4) A determination must be published in the Gazette and may be revoked or varied only by a further determination of the Minister published in the Gazette.(5) While a determination is in force, the provisions of this Act that apply in relation to rates are modified to the extent necessary to give effect to the determination.(6) This section does not apply to a new council constituted before 12 May 2016.(7) This section does not affect any power to make a proclamation under this Part relating to rates.(8) Nothing in this section prevents Mid-Coast Council from making an application under section 508A during the relevant period.(9) A determination under this section is to take into account a determination under section 508A made on an application referred to in subsection (8).(10) A determination under section 508A made on an application referred to in subsection (8) has effect despite subsection (5).(11) Any prohibition that expressly prevents any new council from making an application under section 508A that is contained in the guidelines made under that section does not apply to Mid-Coast Council.(12) In this section—former council, in relation to a new council, means a council of a former area.new area means the area constituted by the amalgamation of areas (former areas) by the relevant proclamation.new council means the council of a new area constituted by section 219.relevant proclamation means the proclamation made pursuant to Part 1 of Chapter 9 that amalgamates former areas into the new area and constitutes the new council.s 218CB: Ins 2017 No 8, Sch 1. Am 2019 No 6, Sch 1 [5].
218CC Proposals for de-amalgamations
(1) The new council may, within 10 years of the constitution of the new area, submit a written business case to the Minister setting out—(a) a proposal for the de-amalgamation of the new area, whether by reconstituting the former areas or constituting different areas, and(b) the reasons in support of the proposal.(2) The Minister must, within 28 days after the business case is submitted, refer the de-amalgamation proposal to the Boundaries Commission with a direction that it conduct an inquiry and report on the proposal.(3) Without limiting subsection (2) or section 263, the Boundaries Commission may in its report recommend that—(a) the de-amalgamation proposal be supported, or(b) the de-amalgamation proposal be rejected, or(c) a different de-amalgamation proposal be supported.(4) The Minister must ensure that the report of the Boundaries Commission is publicly released within 48 hours after it is provided to the Minister.(5) The Minister must, within 28 days after the report is provided to the Minister, provide a written response to the new council setting out—(a) whether or not the Minister supports the de-amalgamation proposal or a different de-amalgamation proposal recommended by the Boundaries Commission, and(b) the reasons for the Minister’s decision, and(c) if the Minister supports the de-amalgamation proposal or the different de-amalgamation proposal—the anticipated time frame for giving effect to the proposal.(6) The Minister is, by making grants under section 620 or using money otherwise appropriated by Parliament for the purpose, to ensure that the cost of any de-amalgamation of the new area resulting from a business case submitted under this section is fully funded.(7) This section extends to new areas constituted before the commencement of this section.(8) In this section—new area means the area constituted by the amalgamation of areas (former areas) by the relevant proclamation.new council means the council of a new area constituted by section 219.relevant proclamation means the proclamation made pursuant to Chapter 9, Part 1 that amalgamates former areas into the new area and constitutes the new council.s 218CC: Ins 2021 No 11, Sch 1.1[1].
Division 2B What must be done before areas can be amalgamated or their boundaries altered?
ch 9, pt 1, div 2B: Ins 1999 No 38, Sch 1 [8].
218D Exercise of functions under secs 218A and 218B
A function under section 218A or 218B may be exercised only after a proposal for the exercise of the function is dealt with under this Division.s 218D: Ins 1999 No 38, Sch 1 [8].
218E Who may initiate a proposal?
(1) A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors.(2) An appropriate minimum number of electors is—(a) if a proposal applies to the whole of one or more areas, 250 of the enrolled electors for each area or 10 per cent of them, whichever is the greater, or(b) if a proposal applies to part only of an area, 250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.s 218E: Ins 1999 No 38, Sch 1 [8].
218F Referral of proposal for examination and report
(1) On making or receiving a proposal, the Minister must refer it for examination and report to the Boundaries Commission or to the Departmental Chief Executive.(2) Sections 263, 264 and 265 apply to the examination of a proposal by the Departmental Chief Executive in the same way as they apply to the examination of a proposal by the Boundaries Commission.(3) For the purpose of examining a joint proposal of 2 or more councils for the amalgamation of two or more areas under section 218A, the Boundaries Commission or Departmental Chief Executive, as the case requires, must seek the views of electors of each of those areas—(a) by means of—(i) advertised public meetings, and(ii) invitations for public submissions, and(iii) postal surveys or opinion polls, in which reply-paid questionnaires are distributed to all electors, or(b) by means of formal polls.(4) The period over which the views of electors are to be sought as referred to in subsection (3) must be a period of at least 40 days.(5) Part 3 of Chapter 4 applies to a formal poll taken by the Boundaries Commission or Departmental Chief Executive in the same way as it applies to a council poll referred to in that Part.(6) If a proposal that is not supported by one or more of the councils affected by it, or that is an amalgamation proposal, has been referred to the Departmental Chief Executive under subsection (1)—(a) the Departmental Chief Executive must furnish the Departmental Chief Executive’s report to the Boundaries Commission for review and comment, and(b) the Boundaries Commission must review the report and send its comments to the Minister.(7) The Minister may recommend to the Governor that the proposal be implemented—(a) with such modifications as arise out of—(i) the Boundaries Commission’s report, or(ii) the Departmental Chief Executive’s report (and, if applicable, the Boundaries Commission’s comments on that report), andbut may not do so if of the opinion that the modifications constitute a new proposal.(b) with such other modifications as the Minister determines,(8) The Minister may decline to recommend to the Governor that the proposal be implemented.s 218F: Ins 1999 No 38, Sch 1 [8]. Am 2004 No 25, Sch 1 [1].
Division 2C
218G–218K (Repealed)
ch 9, pt 1, div 2C (ss 218G–218K): Ins 1999 No 38, Sch 1 [8]. Rep 2004 No 25, Sch 2 [1].
Part 2 Councils
Division 1 Constitution
219 Constitution of councils
A council is constituted by this Act for each area.
220 Legal status of a council
(1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.(2) A council is not a body corporate (including a corporation).(3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).s 220: Subst 2008 No 92, Sch 1 [1].
221 What is a council’s name?
(1) The name of a council of an area other than a city is the “Council of X” or the “X Council”, X being the name of the council’s area.(2) The name of a council of a city is the “Council of the City of X” or the “X City Council”, X being the name of the city.s 221: Am 2008 No 92, Sch 1 [2].
222 Who comprise the governing body?
The elected representatives, called “councillors”, comprise the governing body of the council.
223 Role of governing body
(1) The role of the governing body is as follows—(a) to direct and control the affairs of the council in accordance with this Act,(b) to provide effective civic leadership to the local community,(c) to ensure as far as possible the financial sustainability of the council,(d) to ensure as far as possible that the council acts in accordance with the principles set out in Chapter 3 and the plans, programs, strategies and polices of the council,(e) to develop and endorse the community strategic plan, delivery program and other strategic plans, programs, strategies and policies of the council,(f) to determine and adopt a rating and revenue policy and operational plans that support the optimal allocation of the council’s resources to implement the strategic plans (including the community strategic plan) of the council and for the benefit of the local area,(g) to keep under review the performance of the council, including service delivery,(h) to make decisions necessary for the proper exercise of the council’s regulatory functions,(i) to determine the process for appointment of the general manager by the council and to monitor the general manager’s performance,(j) (Repealed)(k) to consult regularly with community organisations and other key stakeholders and keep them informed of the council’s decisions and activities,(l) to be responsible for ensuring that the council acts honestly, efficiently and appropriately.(2) The governing body is to consult with the general manager in directing and controlling the affairs of the council.s 223: Subst 2016 No 38, Sch 1 [3]. Am 2024 No 29, Sch 1[4].
224 How many councillors does a council have?
(1) A council must have at least 5 and not more than 15 councillors (one of whom is the mayor).(2) Not less than 12 months before the next ordinary election, the council must determine the number, in accordance with subsection (1), of its councillors for the following term of office.(3) If the council proposes to change the number of councillors, it must, before determining the number, obtain approval for the change at a constitutional referendum.
224A Approval to reduce number of councillors
(1) A council may resolve to make an application to the Minister to approve a decrease in the number of councillors within the limits referred to in section 224(1).(2) The council must give not less than 42 days’ public notice of its proposed resolution.(3) After passing the resolution, the council must forward to the Minister a copy of the resolution, a summary of any submissions received by it and its comments concerning those submissions.(4) The Minister may approve the application without amendment or may decline to approve the application.(5) If the Minister approves the application, the number of councillors of the council is reduced to the number specified in the application with effect on and from the day appointed for the next ordinary election of councillors after the application is approved.(6) Section 16 does not apply to a resolution of a council to make an application to the Minister under this section.(7) An application may be made under this section after the commencement of the Local Government Amendment (Elections) Act 2011 but before the expiry of 5 months after that commencement.(8) Nothing in this section prevents a council from making more than one application under this section or from taking action under section 224 to change the number of its councillors.(9) A council for an area that is divided into wards may not make an application under this section for a decrease in the number of councillors that would result in the number of councillors for each ward being fewer than 3.s 224A: Ins 2005 No 59, Sch 1 [1]. Am 2011 No 24, Sch 1 [3] [4].
Division 2 The mayor
225 The mayor
An area must have a mayor who is elected in accordance with this Division.
226 Role of mayor
The role of the mayor is as follows—(a) to be the leader of the council and a leader in the local community,(b) to advance community cohesion and promote civic awareness,(c) to be the principal member and spokesperson of the governing body, including representing the views of the council as to its local priorities,(d) to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council,(e) to preside at meetings of the council,(f) to ensure that meetings of the council are conducted efficiently, effectively and in accordance with this Act,(g) to ensure the timely development and adoption of the strategic plans, programs and policies of the council,(h) to promote the effective and consistent implementation of the strategic plans, programs and policies of the council,(i) to promote partnerships between the council and key stakeholders,(j) to advise, consult with and provide strategic direction to the general manager in relation to the implementation of the strategic plans and policies of the council,(k) in conjunction with the general manager, to ensure adequate opportunities and mechanisms for engagement between the council and the local community,(l) to carry out the civic and ceremonial functions of the mayoral office,(m) to represent the council on regional organisations and at inter-governmental forums at regional, State and Commonwealth level,(n) in consultation with the councillors, to lead performance appraisals of the general manager,(o) to exercise any other functions of the council that the council determines.s 226: Subst 2016 No 38, Sch 1 [5].
227 Who elects the mayor?
The mayor of an area is the person elected to the office of mayor by—(a) the councillors from among their number, unless there is a decision in force under this Division which provides for the election of the mayor by the electors, or(b) the electors, if such a decision is in force.Note—As to the election of the mayor, see also section 282.
228 How is it decided that the mayor be elected by the electors?
(1) It may be decided at a constitutional referendum that the mayor be elected by the electors.(2) A decision that the mayor be elected by the electors takes effect in relation to the next ordinary election after the decision is made.s 228: Am 1996 No 69, Sch 4 [13].
229 Can the decision be changed?
(1) A decision that the mayor be elected by the electors is rescinded only if a constitutional referendum decides in favour of discontinuing that means of election.(2) The rescission takes effect in relation to the next ordinary election after the rescission occurs.s 229: Am 1996 No 69, Sch 4 [14].
230 For what period is a mayor elected?
(1) A mayor elected by the councillors holds the office of mayor for 2 years, subject to this Act.(2) A mayor elected by the electors holds the office of mayor for 4 years, subject to this Act.(3) The office of mayor—(a) commences on the day the person elected to the office is declared to be so elected, and(b) becomes vacant when the person’s successor is declared to be elected to the office, or on the occurrence of a casual vacancy in the office.(4) A person elected to fill a casual vacancy in the office of mayor holds the office for the balance of the predecessor’s term.s 230: Am 2016 No 38, Sch 1 [6].
231 Deputy mayor
(1) The councillors may elect a person from among their number to be the deputy mayor.(2) The person may be elected for the mayoral term or a shorter term.(3) The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.(4) The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.
Division 3 The councillors
232 The role of a councillor
(1) The role of a councillor is as follows—(a) to be an active and contributing member of the governing body,(b) to make considered and well informed decisions as a member of the governing body,(c) to participate in the development of the integrated planning and reporting framework,(d) to represent the collective interests of residents, ratepayers and the local community,(e) to facilitate communication between the local community and the governing body,(f) to uphold and represent accurately the policies and decisions of the governing body,(g) to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a councillor.(2) A councillor is accountable to the local community for the performance of the council.s 232: Am 2009 No 67, Sch 1 [4] [5]. Subst 2016 No 38, Sch 1 [7].
233 For what period is a councillor elected?
(1) A councillor (other than the mayor) holds office for 4 years, subject to this Act.(2) The office of councillor—(a) commences on the day the person elected to the office is declared to be so elected, and(b) becomes vacant on the day appointed for the next ordinary election of councillors, or on the occurrence of a casual vacancy in the office.(3) A person elected to fill a casual vacancy in the office of councillor holds the office for the balance of the predecessor’s term.
233A Oath and affirmation for councillors
(1) A councillor must take an oath of office or make an affirmation of office at or before the first meeting of the council after the councillor is elected.(2) The oath or affirmation may be taken or made before the general manager of the council, an Australian legal practitioner or a justice of the peace and is to be in the following form—OathI [name of councillor] swear that I will undertake the duties of the office of councillor in the best interests of the people of [name of council area] and the [name of council] and that I will faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1993 or any other Act to the best of my ability and judgment.AffirmationI [name of councillor] solemnly and sincerely declare and affirm that I will undertake the duties of the office of councillor in the best interests of the people of [name of council area] and the [name of council] and that I will faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1993 or any other Act to the best of my ability and judgment.(3) A councillor who fails, without a reasonable excuse, to take the oath of office or make an affirmation of office in accordance with this section is not entitled to attend a meeting as a councillor (other than the first meeting of the council after the councillor is elected to the office or a meeting at which the councillor takes the oath or makes the affirmation) until the councillor has taken the oath or made the affirmation.(4) Any absence of a councillor from an ordinary meeting of the council that the councillor is not entitled to attend because of this section is taken to be an absence without prior leave of the council.(5) Failure to take an oath of office or make an affirmation of office does not affect the validity of anything done by a councillor in the exercise of the councillor’s functions.(6) The general manager must ensure that a record is to be kept of the taking of an oath or the making of an affirmation (whether in the minutes of the council meeting or otherwise).s 233A: Ins 2016 No 38, Sch 1 [8].
234 When does a vacancy occur in a civic office?
(1) A civic office becomes vacant if the holder—(a) dies, or(b) resigns the office by writing addressed to the general manager, or(c) is disqualified from holding civic office, or(d) is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under this Act or because the council has been suspended under this Act or as a consequence of a compliance order under section 438HA) without—(i) prior leave of the council, or(ii) leave granted by the council at any of the meetings concerned, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is dismissed from civic office, or(g1) in the case of the office of a councillor, is elected as mayor by the electors, or(h) ceases to hold the office for any other reason.Note—See section 275 for the circumstances in which a person is disqualified from holding civic office.(2) For the purposes of subsection (1)(d), a councillor applying for a leave of absence from a meeting of a council does not need to make the application in person and the council may grant such leave in the absence of that councillor.(3) If the holder of a civic office attends a council meeting (whether or not an ordinary meeting) despite having been granted leave of absence, the leave of absence is taken to have been rescinded as regards any future council meeting.(4) Subsection (3) does not prevent the council from granting further leave of absence in respect of any future council meeting.(5) The office of a mayor elected by councillors becomes vacant if the mayor ceases to hold office as a councillor.s 234: Am 1998 No 16, Sch 1 [2]; 2002 No 40, Sch 1 [21] [22]; 2006 No 31, Sch 1 [2]; 2012 No 15, Sch 1 [5]; 2012 No 94, Sch 1 [4]; 2013 No 44, Sch 1 [6]; 2015 No 37, Sch 1 [1]; 2016 No 38, Sch 1 [9] [10].
Division 4 Local Government Remuneration Tribunal
235 Local Government Remuneration Tribunal
There is established by this Act a tribunal to be known as the Local Government Remuneration Tribunal.
236 Assessors
(1) For the purposes of this Part, there are to be 2 assessors—(a) one of whom is to be the Departmental Chief Executive, and(b) the other of whom is to be a person appointed by the Governor on the nomination of the Minister, being a person who has, in the Minister’s opinion, special knowledge of the system of local government in New South Wales.(2) The Remuneration Tribunal, in exercising the Remuneration Tribunal’s functions is—(a) to be assisted by the assessors, and(b) to take into consideration the views and recommendations tendered by the assessors.
237 Provisions relating to the appointment, term of office and remuneration of the Remuneration Tribunal and assessors
Schedule 1 has effect with respect to the Remuneration Tribunal and the assessors.
238 Functions of the Remuneration Tribunal
(1) The Remuneration Tribunal has the functions conferred or imposed on the Remuneration Tribunal by or under this Act.(2) In addition, the Remuneration Tribunal has such functions as may be conferred or imposed on the Remuneration Tribunal by the Minister.
239 Categorisation of councils and mayoral offices
(1) The Remuneration Tribunal must, at least once every 3 years—(a) determine categories for councils and mayoral offices, and(b) place each council and mayoral office into one of the categories it has determined.(2) The determination of categories by the Remuneration Tribunal is for the purpose of enabling the Remuneration Tribunal to determine the maximum and minimum amounts of fees to be paid to mayors and councillors in each of the categories so determined.s 239: Am 1994 No 44, Sch 5 (3).
240 How are the categories to be determined?
(1) The Remuneration Tribunal is to determine categories for councils and mayoral offices according to the following matters—• the size of areas• the physical terrain of areas• the population of areas and the distribution of the population• the nature and volume of business dealt with by each council• the nature and extent of the development of areas• the diversity of communities served• the regional, national and international significance of the council• such matters as the Remuneration Tribunal considers relevant to the provision of efficient and effective local government• such other matters as may be prescribed by the regulations.(2) In the application of this section to county councils, the categories of county councils are to be determined having regard also to the functions of county councils.s 240: Am 1994 No 44, Sch 5 (4).
241 Determination of fees
The Remuneration Tribunal must, not later than 1 May in each year, determine, in each of the categories determined under section 239, the maximum and minimum amounts of fees to be paid during the following year to councillors (other than mayors) and mayors.s 241: Am 1994 No 44, Sch 5 (5).
242 Special determinations
(1) The Minister may direct the Remuneration Tribunal to make a determination as to whether, and (if so) how, a determination already made should be altered in relation to such councillors or mayors as are specified in the direction.(2) Such a determination must be made before the date specified for the purpose in the Minister’s direction.(3) In making the determination, the Remuneration Tribunal is to take into consideration such matters as are specified in the Minister’s direction and such other matters as the Remuneration Tribunal thinks fit.s 242: Am 1994 No 44, Sch 5 (6).
242A Tribunal to give effect to declared government policy on remuneration for public sector staff
(1) In making a determination, the Remuneration Tribunal is to give effect to the same policies on increases in remuneration as those that the Industrial Relations Commission is required to give effect to under section 146C of the Industrial Relations Act 1996 when making or varying awards or orders relating to the conditions of employment of public sector employees.(2) The policies referred to in subsection (1) do not include any policy that provides for increases in remuneration based on employee-related savings.(3) This section does not apply to a determination by the Remuneration Tribunal that changes the category of a council or mayoral office (whether or not the effect of the change is to increase the range of amounts payable to the councillors and mayor of a council).(4) To avoid doubt, this section extends to a determination of the minimum and maximum amounts payable for a category in existence when the determination is made.s 242A: Ins 2011 No 25, Sch 2. Am 2016 No 38, Sch 1 [11].
243 Inquiries
(1) Before making a determination, the Remuneration Tribunal may make such inquiry as the Remuneration Tribunal thinks necessary.(2) In exercising a function, the Remuneration Tribunal—(a) may obtain and assess information in such manner as the Remuneration Tribunal thinks fit, and(b) may receive written or oral submissions, and(c) is not required to conduct any proceedings in a formal manner, and(d) is not bound by the rules of evidence.
244 Reports of the Remuneration Tribunal
(1) The Remuneration Tribunal must, within 7 days after making a determination under section 239, make a report to the Minister of the determination.(2) The Remuneration Tribunal must, not later than 1 May in each year, make a report to the Minister of the determination made under section 241.(3) The Remuneration Tribunal must, within 7 days after making a determination under section 242, make a report to the Minister of the determination.
245 Publication and tabling of reports
(1) The report of a determination of the Remuneration Tribunal must—(a) be published in the Gazette as soon as practicable after the report is received by the Minister, and(b) be laid before each House of Parliament within 14 sitting days of that House after the day on which it is so published.(2) Failure to lay a report before each House of Parliament in accordance with this section does not affect the validity of a determination, but the report must nevertheless be laid before each House.
246 Effect of determination
A determination of the Remuneration Tribunal may not be challenged, reviewed, quashed or called into question before any court in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition, mandamus, certiorari or otherwise.
247 Assistance for the Remuneration Tribunal
The Minister is to make available to the Remuneration Tribunal such Public Service employees as may be necessary to assist the Remuneration Tribunal in the exercise of the Remuneration Tribunal’s functions.s 247: Am 2014 No 33, Sch 3.18 [1].
Division 5 What fees, expenses and facilities may be paid or provided to councillors?
248 Fixing and payment of annual fees for councillors
(1) A council must pay each councillor an annual fee.(2) A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.(3) The annual fee so fixed must be the same for each councillor.(4) A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.
248A Annual fees or other remuneration not to be paid during period of suspension
A council must not at any time pay any fee or other remuneration, or any expenses, to which a councillor would otherwise be entitled as the holder of a civic office, in respect of any period during which—(a) the councillor is suspended from civic office under this Act, orunless another provision of this Act specifically authorises payment to be made, or specifically permits a person to authorise payment to be made, when the suspension is terminated.(b) the councillor’s right to be paid any such fee or other remuneration, or expense, is suspended under this Act,s 248A: Ins 1995 No 12, Sch 1 [3]. Subst 2004 No 73, Sch 1 [1]. Am 2013 No 44, Sch 1 [7] [8].
249 Fixing and payment of annual fees for the mayor
(1) A council must pay the mayor an annual fee.(2) The annual fee must be paid in addition to the fee paid to the mayor as a councillor.(3) A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.(4) A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.(5) A council may pay the deputy mayor (if there is one) a fee determined by the council for such time as the deputy mayor acts in the office of the mayor. The amount of the fee so paid must be deducted from the mayor’s annual fee.
250 At what intervals are fees to be paid?
Fees payable under this Division by a council are payable monthly in arrears for each month (or part of a month) for which the councillor holds office.
251 What is the consequence of paying fees?
(1) A person is not, for the purposes of any Act, taken to be an employee of a council and is not disqualified from holding civic office merely because the person is paid a fee under this Division.(2) A fee paid under this Division does not constitute salary for the purposes of any Act.
252 Payment of expenses and provision of facilities
(1) Within the first 12 months of each term of a council, the council must adopt a policy concerning the payment of expenses incurred or to be incurred by, and the provision of facilities to, the mayor, the deputy mayor (if there is one) and the other councillors in relation to discharging the functions of civic office.(2) The policy may provide for fees payable under this Division to be reduced by an amount representing the private benefit to the mayor or a councillor of a facility provided by the council to the mayor or councillor.(3) A council must not pay any expenses incurred or to be incurred by, or provide any facilities to, the mayor, the deputy mayor (if there is one) or a councillor otherwise than in accordance with a policy under this section.(4) A council may from time to time amend a policy under this section.(5) A policy under this section must comply with the provisions of this Act, the regulations and any relevant guidelines issued under section 23A.s 252: Am 2000 No 112, Sch 3 [13]; 2005 No 59, Sch 1 [2] [3]; 2016 No 38, Sch 1 [12].
253 Requirements before policy concerning expenses and facilities can be adopted or amended
(1) A council must give public notice of its intention to adopt or amend a policy for the payment of expenses or provision of facilities allowing at least 28 days for the making of public submissions.(2) Before adopting or amending the policy, the council must consider any submissions made within the time allowed for submissions and make any appropriate changes to the draft policy or amendment.(3) Despite subsections (1) and (2), a council need not give public notice of a proposed amendment to its policy for the payment of expenses or provision of facilities if the council is of the opinion that the proposed amendment is not substantial.(4) (Repealed)(5) A council must comply with this section when proposing to adopt a policy in accordance with section 252(1) even if the council proposes to adopt a policy that is the same as its existing policy.s 253: Subst 2000 No 112, Sch 3 [14]; 2005 No 59, Sch 1 [4]. Am 2016 No 38, Sch 1 [13] [14].
254 Decision to be made in open meeting
The council or a council committee all the members of which are councillors must not close to the public that part of its meeting at which a policy for the payment of expenses or provision of facilities is adopted or amended, or at which any proposal concerning those matters is discussed or considered.s 254: Am 2000 No 112, Sch 3 [15].
254A Circumstances in which annual fees may be withheld
(1) Despite this Division, a council may resolve that an annual fee will not be paid to a councillor or that a councillor will be paid a reduced annual fee determined by the council—(a) for any period of not more than 3 months for which the councillor is absent, with or without leave, from an ordinary meeting or ordinary meetings of the council, or(b) in any other circumstances prescribed by the regulations.(2) Despite this Division, if a councillor is absent, with or without leave of the council, from ordinary meetings of the council for any period of more than 3 months, the council must not pay any annual fee, or part of an annual fee, to that councillor that relates to the period of absence that is in excess of 3 months.s 254A: Ins 1995 No 12, Sch 1 [4]. Am 2002 No 40, Sch 1 [23] [24]; 2019 No 14, Sch 2.12.
254B Payment for superannuation contributions for councillors
(1) A council may make a payment (a superannuation contribution payment) as a contribution to a superannuation account nominated by a councillor, starting from the financial year commencing 1 July 2022.(2) The amount of a superannuation contribution payment is the amount the council would have been required to contribute under the Commonwealth superannuation legislation as superannuation if the councillor were an employee of the council.(3) A superannuation contribution payment is payable with, and at the same intervals as, the annual fee is payable to the councillor.(4) A council is not permitted to make a superannuation contribution payment—(a) unless the council has previously passed a resolution at an open meeting to make superannuation contribution payments to its councillors, or(b) if the councillor does not nominate a superannuation account for the payment before the end of the month to which the payment relates, or(c) to the extent the councillor has agreed in writing to forgo or reduce the payment.(5) The Remuneration Tribunal may not take superannuation contribution payments into account in determining annual fees or other remuneration payable to a mayor or other councillor.(6) A person is not, for the purposes of any Act, taken to be an employee of a council and is not disqualified from holding civic office merely because the person is paid a superannuation contribution payment.(7) A superannuation contribution payment does not constitute salary for the purposes of any Act.(8) Sections 248A and 254A apply in relation to a superannuation contribution payment in the same way as they apply in relation to an annual fee.(9) In this section—Commonwealth superannuation legislation means the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth.superannuation account means an account for superannuation or retirement benefits from a scheme or fund to which the Commonwealth superannuation legislation applies.s 254B: Ins 2021 No 11, Sch 1.3.
Division 6 Appointment of administrator
255 Governor may dismiss mayor and councillors
(1) The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if—(a) a public inquiry concerning the council has been held, and(b) the Minister has recommended that the Governor make such a declaration.(1A) The Minister may recommend that the Governor make such a declaration only—(a) after considering the results of the public inquiry, or(b) if the Minister decides to issue a performance improvement order to the council in response to the results of the public inquiry—after issuing the order and considering whether the council has complied with the order.(2) The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the making of such a declaration because of systemic corruption within the council.(3) If the Independent Commission Against Corruption makes such a recommendation, all civic offices in relation to the council may be declared vacant under subsection (2) without the holding of a public or other inquiry concerning the council. However, the making of such a recommendation does not preclude the holding of a public or other inquiry.(4) For the purposes of this Act, a council is dismissed if the Governor declares all civic offices in relation to the council to be vacant.s 255: Am 2002 No 19, Sch 1 [1]; 2013 No 44, Sch 1 [9]–[11].
256 Governor may appoint administrator or order fresh election
(1) By the same proclamation under section 255 or by one or more subsequent proclamations, the Governor is—(a) to appoint an administrator of the council for a specified term, oror both.(b) to order the holding of a fresh council election,(1A) More than one administrator may be appointed (with the same or different functions).(2) The Governor may, by those or other proclamations, make such further orders as the Minister recommends are necessary in the circumstances.s 256: Am 2013 No 44, Sch 1 [12].
257 Declaration of council as non-functioning
(1) An administrator may be appointed for an area by the Governor without the necessity for a public inquiry if the Governor declares the council to be non-functioning because—(a) the requirements of this Act as to the making and levying of an ordinary rate have not been followed, or(b) the council has not exercised its functions for 6 months or more, or(c) there are not enough councillors for there to be a quorum at council meetings.(2) The Governor may, as an alternative to the appointment of an administrator on the ground referred to in subsection (1)(c), appoint (or authorise a special election to elect) councillors to fill all the vacancies on the council or such number of those vacancies as will provide a quorum at meetings.s 257: Am 2013 No 44, Sch 1 [13].
258 Administrator
(1) When an administrator of a council appointed under this Division takes office—(a) any persons holding civic office in relation to the council cease to hold office, and(b) the administrator has all the functions of the council (including all the functions of a councillor and the mayor) until immediately before the first meeting of the council held after the fresh election.(1A) If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.(1B) If more than one administrator is appointed, one of the administrators is to be specified in the instrument of appointment as the person who is to exercise the functions of the mayor of the council.(2) An administrator must be paid a salary from the council’s funds determined by the Governor.(2A) If more than one administrator is appointed for a council, the Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one administrator.(3) The Governor may terminate an administrator’s appointment at any time.(4) An administrator ceases to hold office—(a) immediately before the first meeting of the council held after the fresh election, or(b) if the administrator’s appointment is earlier terminated by the Governor.s 258: Am 2013 No 44, Sch 1 [14]–[18]; 2016 No 38, Sch 1 [15] [16].
259 Temporary exercise of the council’s functions
(1) In this section, the transitional period means the period between—(a) the appointment of an administrator of a council and the time at which the administrator takes office, or(b) the declaration of a council to be non-functioning and the time at which the appointed or elected councillors for the area take office, if the declaration provides for their appointment or election instead of the appointment of an administrator.(2) During the transitional period, the mayor, or the general manager if there is no mayor, may temporarily exercise the following functions of the council—(a) the continuation of works and services already commenced,(b) the payment of council employees,(c) the payment of accounts due,(d) the administration of the area without expenditure other than those payments and payments approved by the Minister.
Part 3 Local Government Boundaries Commission
260 Constitution of the Boundaries Commission
There is constituted by this Act a body corporate with the name of Local Government Boundaries Commission.
261 Membership of Boundaries Commission
(1) The Boundaries Commission is to consist of 4 commissioners appointed by the Governor.(2) Of the commissioners—(a) one is to be a person nominated by the Minister, and(b) one is to be a person employed in the Department nominated by the Departmental Chief Executive, and(c) 2 are to be persons appointed from the panel constituted under section 262(1).(3) Despite subsection (2), the Boundaries Commission is taken to be properly constituted when the commissioners referred to in paragraphs (a) and (b) of that subsection have been appointed.(4) The commissioner referred to in subsection (2)(a) is the chairperson of the Boundaries Commission.(5) Schedule 2 has effect with respect to the commissioners and the procedure of the Boundaries Commission.s 261: Am 2015 No 37, Sch 2 [6].
262 How is a panel to be constituted for the purposes of making an appointment as a commissioner?
(1) There is to be a panel consisting of 8 persons who are councillors nominated by the executive of the Local Government and Shires Association of New South Wales.(2) The nomination of members of the panel must be made in the manner determined by the Minister. A person must not be nominated as a member of the panel unless he or she has consented in writing to be nominated.(3) If an insufficient number of nominations have been made to the panel to enable the Governor to appoint a commissioner or commissioners in accordance with this Part, the Governor may appoint a person to be a commissioner on the recommendation of the Minister.s 262: Am 2013 No 111, Sch 2.10.
263 Functions of the Boundaries Commission
(1) The Boundaries Commission is required to examine and report on any matter with respect to the boundaries of areas and the areas of operation of county councils which may be referred to it by the Minister.(2) For the purpose of exercising its functions, the Boundaries Commission—(a) may hold an inquiry if the Minister so approves, andbut may not hold an inquiry otherwise than as referred to in paragraph (a) or (b).(b) must hold an inquiry if the Minister so directs,(2A) Despite subsection (2), the Boundaries Commission must hold an inquiry for the purpose of exercising its functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with section 218F.(2B) Reasonable public notice must be given of the holding of an inquiry under this section.(3) When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors—(a) the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned,(b) the community of interest and geographic cohesion in the existing areas and in any proposed new area,(c) the existing historical and traditional values in the existing areas and the impact of change on them,(d) the attitude of the residents and ratepayers of the areas concerned,(e) the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area,(e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities,(e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned,(e3) the impact of any relevant proposal on rural communities in the areas concerned,(e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards,(e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented,(f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas.(4) The Boundaries Commission is not entitled to examine or report on any matter relating to the area of operations of a county council constituted or proposed to be constituted for the supply of electricity.(5) The Boundaries Commission must allow members of the public to attend any inquiry held by the Commission under this section.(6) The Boundaries Commission may continue with an examination or inquiry even though a commissioner or acting commissioner replaces another commissioner during the course of the examination or inquiry.(7) The Supreme Court may not make an order in the nature of prohibition in respect of, or an order for removing to the Court or quashing, any decision or proceeding made or conducted by the Boundaries Commission in connection with the exercise of its functions.s 263: Am 1999 No 38, Sch 1 [9] [10]; 1999 No 85, Sch 2.33.
264 Can a person be represented in proceedings before the Boundaries Commission?
(1) In proceedings before the Boundaries Commission, a person is not entitled to be represented—(a) by an Australian lawyer or by a person qualified for admission as an Australian lawyer, or(b) by any person acting for a fee or reward.(2) However, this section does not prevent—(a) an employee of a person from representing the person before the Boundaries Commission if the employee is not a person referred to in subsection (1)(a), or(b) a person who is the mayor of an area or the chairperson of a county council from appearing in that capacity in proceedings before that Commission, or(c) a person referred to in subsection (1)(a) from preparing any documents or submissions or tendering any legal advice in connection with any proceedings before that Commission.s 264: Am 2005 No 98, Sch 3.40 [2].
265 Boundaries Commission may conduct survey or poll
(1) To assist it in determining the attitude of the residents and ratepayers of an area or areas for the purposes of section 263(3)(d), the Boundaries Commission may conduct (in such manner as it thinks appropriate) an opinion survey or poll of the residents and ratepayers.(2) The residents and ratepayers of the area or areas concerned may participate in any such opinion survey or poll but are not required to do so.(3) The Boundaries Commission may request the Electoral Commissioner, a council or any other person or organisation to conduct any such opinion survey or poll.
Chapter 10 How are people elected to civic office?
ch 10, introduction: Am 2011 No 24, Sch 1 [5]; 2012 No 15, Sch 1 [6]. Rep 2016 No 55, Sch 3.17 [2].
Part 1 Who may vote?
266 Who has the right to be enrolled as an elector?
(1) A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if—(a) he or she is a resident of the ward, or(b) he or she is not a resident of the ward but is an owner of rateable land in the ward, or(c) he or she is an occupier, or ratepaying lessee, of rateable land in a ward.(2) Despite subsection (1), a person who has been convicted of an offence, whether in New South Wales or elsewhere, and has been sentenced in respect of that offence to imprisonment for 12 months or more and is in prison serving that sentence is not entitled to be enrolled as an elector for a ward.Note—See section 30(4) of the Electoral Act 2017 for the equivalent disqualification in relation to enrolment for State elections.s 266: Am 2009 No 102, Sch 6.3 [2]; 2017 No 66, Sch 8.16 [2].
267 Who has the right to vote?
(1) A person whose name is on the roll kept under Division 2 of Part 6 for a ward is entitled to vote—(a) at an election of councillors for the ward, and(b) at an election of the mayor by all the electors of the area.(2) A person who changes his or her name from that on the roll may, until the roll is corrected, vote under the enrolled name.(3) The right of an enrolled person to vote at an election is not affected by—(a) a change of residence within a ward or within an area that is not divided into wards, or(b) a change in the qualification that entitles an enrolled person to vote.(4) A person who—(a) is qualified in respect of more than one parcel of land to be enrolled for a ward, and(b) is enrolled in respect of only one of the parcels, andis not disqualified from voting at an election held while the person is enrolled in respect of that parcel if the returning officer is satisfied that the person is then qualified in respect of another of the parcels.(c) ceases to be qualified in respect of that parcel,(5) This section does not confer a right to vote at an election on a person who by or under this Act is disqualified from voting, or is not qualified to vote, at the election.
268 One vote per elector
Nothing in this Chapter entitles a person to more than one vote in one area in an election.Note—A person may not exercise more than one vote in any one area even if—• the person is entitled to be enrolled as an elector for more than one ward in the area; or the person’s entitlement is based on more than one of the criteria in section 266(1)(a), (b) and (c), or• the person’s entitlement is based on the ownership or occupation of more than one parcel of land in the area.
269 Who is a “resident” for the purposes of this Part?
(1) For the purposes of this Part, a person is a resident of a ward if the person is enrolled (within the meaning of the Electoral Act 2017) in respect of an address that is within the ward.(2) (Repealed)(3) In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there.s 269: Am 2012 No 21, Sch 1 [1] [2]; 2017 No 66, Sch 8.16 [3].
270 Who is an “owner of rateable land” for the purposes of this Part?
(1) For the purposes of this Part, a person is the owner of rateable land if—(a) the person is not a corporation, is the sole owner of the rateable land and does not own it as trustee, or(b) the person is not a corporation, is a joint or several owner of the rateable land and is nominated in writing as an elector by the only other owner of the land, or by a majority of all the owners of the land, or(c) the person is not a corporation, is not a nominee under paragraph (b) and is nominated in writing as an elector by a corporation which is the owner, or by trustees who are the owners, of the land, or(d) the person is a lessee of the land from the Crown and the land is rateable Crown land.(2) Land is not rateable land for the purposes of this Part if it is a lot in a strata plan that is registered under the Strata Schemes Development Act 2015 and is provided only for the purpose of parking a motor vehicle.(3) If there is more than one person who (by virtue of subsection (1)) is the owner of the same parcel of rateable land, only one of the persons is entitled to be enrolled as an elector for a ward.(4) If a corporation or trustees own more than one parcel of land in an area, or if joint or several owners of one parcel of land in an area are also joint or several owners of any other parcel of land in the area, it or they can nominate a person as the owner of rateable land only in respect of one of those parcels.(5) A nomination under this section is to be lodged with the general manager.s 270: Am 1994 No 44, Sch 6 (1); 1996 No 139, Sch 2.22 [4] (am 1997 No 55, Sch 2.18 [1] [2]); 2015 No 51, Sch 9.13 [3].
271 Who is an “occupier” or “ratepaying lessee” for the purposes of this Part?
(1) For the purposes of this Part, a person is an occupier of rateable land if the person has a legally enforceable right to continuous occupation of rateable land (jointly or severally, but not as owner or ratepaying lessee) for not less than 3 years following the relevant date.(2) If there is more than one such occupier of the same parcel of rateable land, only one of them is entitled to be enrolled as an elector for a ward.(2A) If a corporation or trustees is or are occupiers of more than one parcel of land in an area, or if joint or several occupiers of one parcel of land in an area are also joint or several occupiers of any other parcel of land in the area, it or they can nominate a person as the occupier of rateable land only in respect of one of those parcels.(3) For the purposes of this Part, a person is a ratepaying lessee of rateable land if the person is jointly or severally liable, under a lease in writing or other document of title relating to the land, to pay to any person the whole or any part of any rates that may, during the 3 years following the relevant date, be made or levied in respect of the land.(4) If there is more than one such ratepaying lessee of the same parcel of rateable land, only one of them is entitled to be enrolled as an elector for a ward.(4A) If a corporation or trustees is or are ratepaying lessees of more than one parcel of land in an area, or if joint or several ratepaying lessees of one parcel of land in an area are also joint or several ratepaying lessees of any other parcel of land in the area, it or they can nominate a person as the ratepaying lessee of rateable land only in respect of one of those parcels.(5) The relevant date for the purposes of this section is—(a) the date on which the claim for enrolment is made, if the claim is for inclusion in the roll of occupiers and ratepaying lessees, or(b) the closing date for the election referred to in Part 4, if the claim is for the purpose of voting in the election.s 271: Am 1994 No 44, Sch 6 (2); 2000 No 53, Sch 1.15 [4].
272 Competing claimants
(1) If two or more persons apply to be enrolled as an elector for a ward as owners of the same parcel of rateable land, and those persons do not nominate one of their number to be so enrolled, the general manager may do so instead.(2) Likewise, if two or more persons apply to be enrolled as an elector for a ward as occupiers, or as ratepaying lessees, or as occupier and ratepaying lessee, of the same parcel of land, and those persons do not nominate one of their number to be so enrolled, the general manager may do so instead.
273 Application of Part to area not divided into wards
If an area is not divided into wards, this Part applies to the area in the same way as it applies to a ward.
Part 2 Who may be elected?
274 What are the qualifications for civic office?
A person is qualified to hold civic office if—(a) the person is entitled to be enrolled as an elector, and(b) the person is not disqualified from holding civic office by this Act, and(c) the person is not prevented from being elected to civic office by section 276(2).
275 Who is disqualified from holding civic office?
(1) A person is disqualified from holding civic office—(a) while disqualified from being an elector, or(a1) while a member of the Parliament of New South Wales, except as provided by subsections (5) and (7), or(b) while a judge of any court of the State or the Commonwealth, or(c) while serving a sentence (including a sentence the subject of an intensive correction order) for a serious indictable offence or any other offence, except a sentence imposed for a failure to pay a fine, or(d) if he or she is while holding that office, or has been within 2 years before nomination for election, election or appointment to the office, convicted of an offence under the regulations made for the purposes of section 748(3), or(e) if he or she is while holding that office, or has been within 7 years before nomination for election, election or appointment to the office, convicted in New South Wales of an offence that is punishable by imprisonment for 5 years or more, or convicted in another State or Territory, or under a law of the Commonwealth, of an offence that, if committed in New South Wales, would be an offence so punishable, or(e1) if he or she is while holding that office, or has been within 2 years before nomination for election, election or appointment to the office, convicted of an offence under the Election Funding, Expenditure and Disclosures Act 1981 or the Electoral Funding Act 2018 that is punishable by imprisonment for 2 years or more, or(f) while a surcharge, payable by the person under Part 5 of Chapter 13 and not paid within 6 months after it became payable, remains unpaid, or(g) while disqualified from holding a civic office under a provision of this Act or Part 4A of the Crimes Act 1900 (Corruptly receiving commissions and other corrupt practices), or(h) while disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001 of the Commonwealth.(1A) If—(a) an order for suspension from civic office for misconduct is made (after the commencement of this subsection) against a person under this Act by the Departmental Chief Executive or the Civil and Administrative Tribunal on a referral from the Departmental Chief Executive, andthe person is disqualified from holding civic office for 5 years after the date the order takes effect.(b) it is the third or subsequent such order that has been made against the person (including orders made before the commencement of this subsection),(2) A person is disqualified from holding civic office on a council if he or she is an employee of the council or holds an office or place of profit under the council.(3) A person is not disqualified from holding a civic office only because, while holding the civic office, the person ceases to be a resident in the area, to own property in the area or to be an occupier or ratepaying lessee of rateable land in the area.(4) A person is taken not to be disqualified from holding civic office if the former Administrative Decisions Tribunal or the Civil and Administrative Tribunal, in proceedings under section 329, has refused to order the dismissal of the person in circumstances to which subsection (4) of that section applies.(5) If—(a) on the commencement of this subsection, a member of the Parliament of New South Wales is a councillor or mayor, orthe person is not disqualified from holding civic office because of subsection (1)(a1) for the balance of the person’s term of office as a councillor or for the period of 2 years (whichever is the shorter period).(b) after the commencement of this subsection, a councillor or mayor becomes a member of the Parliament of New South Wales,(6) Subsection (5) does not apply where a councillor or mayor becomes a member of the Parliament of New South Wales after the commencement of that subsection and within 12 months after last ceasing to be a member of that Parliament.(7) Despite anything to the contrary in this Chapter, a member of the Parliament of New South Wales is not disqualified because of subsection (1)(a1) from being nominated for election or being elected to a civic office. If elected, the person is disqualified from holding that civic office unless—(a) the person has ceased to be a member of that Parliament before the first meeting of the council concerned after the election, or(b) it is an election as mayor by the councillors during the period that the person is not disqualified by the operation of subsection (5).Note—If a person while holding civic office becomes subject to disqualification under this section, the office becomes vacant under section 234.s 275: Am 1999 No 31, Sch 2.22 [3] [4]; 1999 No 94, Sch 4.130 [1]; 2001 No 34, Sch 4.33 [1]; 2010 No 48, Sch 5.11; 2012 No 22, Sch 1 [1] [2]; 2013 No 95, Sch 2.91 [1]; 2015 No 37, Sch 1 [2]; 2016 No 35, Sch 2 [1]; 2020 No 30, Sch 2.24[1].
276 What is the effect of disqualification?
(1) A person who is disqualified from holding civic office may not be elected or appointed to a civic office and may not hold, or act in, a civic office.(2) A person who vacates the office of councillor by resignation or disqualification may not be elected to a civic office in the same area (and may not hold, or act in, a civic office in the same area) until—(a) if the person is not disqualified—the first anniversary of the vacation of office, or the next ordinary election for the area (whichever occurs first), or(b) if the person is disqualified—the first ordinary election after the person ceases to be disqualified.(3) A person convicted of an offence under Part 6 of Chapter 16 for acting in a civic office while disqualified under section 275—(a) is disqualified from holding civic office for 7 years from the time of conviction, unless the court determines a shorter period, and(b) is not entitled to receive or recover from the council any money relating to the civic office in respect of the period in which the person is disqualified.(4) The council may, within 2 years after the person so convicted receives money from the council relating to the civic office in respect of the period in which the person is disqualified, recover the money from the person as a debt.
277 May the holder of a civic office be re-elected?
(1) The holder of a civic office is eligible for re-election, subject to this Act.(2) The holder of a civic office is not disqualified from being re-elected merely because the holder, or the council, is suspended under this Act.s 277: Am 2013 No 44, Sch 1 [19].
Part 3 What is the system of election?
278 Election of councillors for an area not divided into wards
The councillors for an area that is not divided into wards are to be elected by an electorate comprising all the electors for the area.
279 Alternative methods for election of councillors for an area divided into wards
(1) The councillors for an area that is divided into wards are to be elected in accordance with either section 280 or 281.(2) The method of election under section 280 (method 1) is to apply unless a decision made at a constitutional referendum is in force which—(a) requires the method of election under section 281 (method 2) to apply, and(b) specifies the number of councillors each of whom is to be elected by an electorate comprising all the electors for a ward and the number of councillors (if any) each of whom is to be elected by an electorate comprising all the electors for the area.
280 Ward election of councillors—method 1
(1) Each councillor for an area that is divided into wards may be elected by an electorate comprising all the electors for a ward.(2) The same number of councillors is to be elected for each ward. The mayor is to be excluded when determining that number if the mayor is to be elected by all the electors for the area.(3) The same person is not to be a candidate for election as a councillor by the electors for more than one ward, unless the election is for the mayor as such.
281 Election of councillors partly by wards, partly by area—method 2
(1) The councillors for an area that is divided into wards may be elected—(a) as to some of them—each by an electorate comprising all the electors for a ward, and(b) as to the others—by an electorate comprising all the electors for the area.(2) The same number of councillors is to be elected for each ward. The mayor is to be excluded when determining that number if the mayor is to be elected by all the electors for the area.(3) If a person is a candidate for election as a councillor by the electors for a ward, the person must not at the same time be a candidate for election as a councillor by the electors for another ward or a candidate for election as a councillor by all the electors for the area, unless the election is for the mayor as such.s 281: Am 1995 No 11, Sch 1.75 [1].
282 Election of mayor
(1) The mayor of an area who is to be elected by the electors is to be elected by an electorate comprising all the electors for the area, even if the area is divided into wards.(2) The mayor of an area who is to be elected by the councillors for the area is to be elected by the councillors from among their number.(3) A mayor elected for an area is one of the councillors of the council for the area.
283 Double candidature
(1) A person may be a candidate for election as mayor and a candidate for election as a councillor at the same time.(2) If a person is elected by the electors as mayor and the person is also a candidate for election as a councillor, the votes cast for the person as a councillor are not to be counted for that person but are to be distributed as prescribed by the regulations.(3) (Repealed)s 283: Am 1995 No 11, Sch 1.75 [2]; 1995 No 12, Sch 1 [5].
284 Voting system for election of the mayor by all the electors of the area
The voting system in a contested election of the mayor by all the electors of the area is to be optional preferential.
285 Voting system for election of councillors
The voting system in a contested election of a councillor or councillors is to be—(a) optional preferential, if only one councillor is to be elected, or(b) proportional, if 2 or more councillors are to be elected.s 285: Subst 1994 No 44, Sch 6 (3); 2012 No 15, Sch 1 [7].
286 Is voting compulsory?
Whichever voting system applies, electors on the residential roll must vote at a contested election unless exempt from voting under this Act. Electors on the non-residential roll or the roll of occupiers and ratepaying lessees may vote, but are not required to vote.
Part 4 When are elections held?
287 When is an ordinary election of councillors held?
(1) An ordinary election of the councillors for an area is to be held on the second Saturday of September 2008 and on the second Saturday of September in every fourth year after 2008.(2) An election of the councillors for an area is to be held on a Saturday proclaimed for the purpose if—(a) the area is constituted after the commencement of this Part, or(b) the council for the area is dismissed, or(c) the council is declared to be non-functioning under section 257.s 287: Am 2003 No 23, Sch 1 [1]; 2008 No 3, Sch 1 [1]; 2013 No 44, Sch 1 [20].
288 Delayed elections of councillors
(1) If the Minister is of the opinion that it would be impracticable or inconvenient to hold an election as provided by section 287, the Minister may, by order published in the Gazette, appoint a subsequent Saturday for the election.(2) The subsequent Saturday must not be more than 28 days later than the day when the election should have been held.(3) If a day is appointed under this section for an election, the retiring councillors continue in office until the election is held and, if a retiring councillor resigns in the meantime, his or her office is vacant until the election is held.
289 When is an election of a mayor by the electors to be held?
(1) The election of a mayor by the electors for an area is to be held (unless its purpose is the filling of a casual vacancy)—(a) on the day on which the election of the councillors for the area is held, or(b) if the election of the councillors is uncontested, on the day on which the election of the councillors would have been held if it had been contested.(2) If a mayor of an area is to be elected by the electors on the day on which a contested election of councillors for the area is to be held and the election of the councillors is delayed for any reason, the election of the mayor is also delayed but must be held on the same day as the delayed election of the councillors.
290 When is an election of a mayor by the councillors to be held?
(1) The election of the mayor by the councillors is to be held—(a) if it is the first election after an ordinary election of councillors—within 3 weeks after the ordinary election, or(b) if it is not that first election or an election to fill a casual vacancy—during the month of September, or(c) if it is the first election after the constitution of an area—within 14 days after the appointment of a provisional council or the first election of the council if a provisional council is not appointed, or(d) if the relevant council is a non-functioning council, or a council of which all civic offices have been declared vacant, and the election is the first to be held after the appointment or election of the councillors—within 14 days after the appointment or election of the councillors.(2) If the councillors fail to elect a mayor as required by this section, the Governor may appoint one of the councillors as the mayor.(3) For the purposes of this section, an election of councillors does not conclude until the declaration of election of all the councillors of the council concerned.Note—The filling of a casual vacancy in the office of a mayor elected by the councillors is dealt with in section 295.Note—Elections are not held while a council is suspended under Part 7 or 8 of Chapter 13.s 290: Am 2012 No 21, Sch 1 [3]; 2013 No 44, Sch 1 [21].
Part 5 How are casual vacancies filled?
291 By-elections
If a casual vacancy occurs in a civic office, the office is to be filled by a by-election, subject to this Part.Note—The circumstances in which casual vacancies occur are specified in Chapter 9.
291A Countback to be held instead of by-election in certain circumstances
(1) This section applies to a casual vacancy in the office of a councillor if—(a) the casual vacancy occurs within 18 months after the date of the last ordinary election of the councillors for the area, and(b) the council has at its first meeting following that ordinary election of councillors, by resolution, declared that any such casual vacancy is to be filled by a countback of votes cast at the last election for that office.(2) This section does not apply to a casual vacancy in the office of a councillor if the councillor who vacated office was elected—(a) in an election using the optional preferential voting system (including the election of a mayor elected by the electors of an area), orNote—See section 285 (Voting system for election of councillors).(b) in an election without a poll being required to be held.Note—See section 311 (Uncontested elections).(3) A casual vacancy to which this section applies is to be filled by a countback election conducted in accordance with the regulations.(4) A countback election to fill a casual vacancy to which this section applies must be conducted—(a) if the election at which the person whose departure created the casual vacancy was elected was administered by the Electoral Commissioner—by a returning officer appointed by the Electoral Commissioner, or(b) if the election at which the person whose departure created the casual vacancy was elected was administered by a returning officer appointed by an electoral services provider engaged by the council—by a returning officer appointed by the electoral services provider.(c) (Repealed)(5) If a countback election fails or the returning officer is otherwise unable to fill the casual vacancy by a countback election—(a) the returning officer must notify the general manager of the council concerned, and(b) a by-election in accordance with this Part must be held to fill the casual vacancy.(5A) If an electoral services provider engaged by the council is unable to appoint a returning officer for the purposes of subsection (4)(b), a by-election in accordance with this Part must be held to fill the casual vacancy.(6) This section does not apply to a casual vacancy in the office of a councillor if the vacancy occurs before the day prescribed for the purposes of this section by the regulations.s 291A: Ins 2014 No 80, Sch 1 [1]. Am 2016 No 38, Sch 1 [17]; 2021 No 11, Sch 1.2[1] [2].
292 When is a by-election to be held?
A by-election to fill a casual vacancy in the office of a councillor or a mayor elected by the electors of an area is to be held on a Saturday that—(a) falls not later than 3 months after the vacancy occurs, and(b) is fixed by the general manager (in relation to an election administered by the general manager) or the Electoral Commissioner (in relation to an election administered by the Electoral Commissioner).s 292: Am 1998 No 141, Sch 1 [4]. Subst 2011 No 24, Sch 1 [6].
293 Delayed by-elections
(1) If the Minister is of the opinion that it would be impractical or inconvenient to hold a by-election as provided by section 292, the Minister may, by order published in the Gazette, appoint a subsequent Saturday for the by-election.(2) The subsequent Saturday must not be more than 28 days later than the day when the by-election should have been held.
294 Dispensing with by-elections
(1) This section applies if a casual vacancy occurs in the office of a councillor, including a mayor elected by the electors of an area, within 18 months before the date specified for the next ordinary election of the councillors for the area.(2) If such a casual vacancy occurs in the office of a councillor (but not the office of a mayor elected by the electors), the Minister may, on the application of the council—(a) order that the vacancy not be filled, or(b) order the holding on a stated day of a by-election to fill the vacancy and revoke any earlier order made under paragraph (a).(3) If such a casual vacancy occurs in the office of a mayor elected by the electors, the casual vacancy is to be filled by the Governor appointing to the vacant office a councillor nominated by the council.(4) If the council does not nominate a councillor for the purposes of subsection (3), the Governor may appoint one of the councillors to the vacant office.s 294: Am 2003 No 23, Sch 1 [2]; 2006 No 31, Sch 1 [3]; 2011 No 24, Sch 1 [7].
294A Casual vacancy not to be filled where councillor numbers reduced
(1) A casual vacancy in the office of a councillor (but not a mayor elected by the electors) is not to be filled if the Minister has approved an application under section 224A to reduce the number of councillors but the reduction has not yet taken effect.(2) However, subsection (1) does not authorise a vacancy to remain unfilled if the vacancy will result in the council having less councillors than the reduced number approved by the Minister under section 224A.(3) Subsection (1) applies to a casual vacancy whether occurring before or after the commencement of this section or before or after the approval of the relevant application under section 224A.s 294A: Ins 2005 No 59, Sch 1 [5].
294B Casual vacancy not to be filled where councillor numbers reduced—approved by constitutional referendum
(1) Despite section 17(2), a casual vacancy in the office of a councillor (but not a mayor elected by the electors) is not to be filled if a constitutional referendum has approved a reduction in the number of councillors but the reduction has not yet taken effect.(2) However, subsection (1) does not authorise a vacancy to remain unfilled if the vacancy will result in the council having less councillors than the reduced number approved by the constitutional referendum.(3) Subsection (1) applies to a casual vacancy whether occurring before or after the commencement of this section or before or after the constitutional referendum.s 294B: Ins 2011 No 24, Sch 1 [8].
295 Casual vacancy in office of mayor elected by the councillors
(1) If a casual vacancy occurs in the office of a mayor elected by the councillors, the vacancy is to be filled at a meeting of the council to be held within 14 days after the occurrence of the vacancy.(2) If the councillors fail to elect a mayor as required by this section, the Governor may appoint one of the councillors as the mayor.
Part 6 How are elections conducted?
Division 1 Administration of elections
ch 10, pt 6, div 1: Subst 2011 No 24, Sch 1 [9].
296AA Councils to plan for administration of elections
(1) At least 18 months before the next ordinary election of councillors for a council, the council must resolve—(a) to enter into an arrangement with the Electoral Commissioner, by contract or otherwise, for the Electoral Commissioner to administer elections of the council (as provided by section 296), or(b) that the elections of the council are to be administered by an electoral services provider engaged by the council.(2) A resolution referred to in subsection (1)(b) must include the following information—(a) whether the general manager has identified an electoral services provider to be engaged for the next ordinary election of councillors and, if so, the name of that provider,(b) any other information required by the regulations.(3) As soon as practicable after the making of a resolution referred to in subsection (1)(b), the general manager of the council must publish a copy of the resolution on the council’s website.(4) If a council fails to comply with subsection (1), the general manager of the council must publish a notice of that failure on the council’s website.(5) Despite the other provisions of this section, a council may make a resolution under subsection (1) on or before 1 October 2019 for the purposes of an arrangement that includes the ordinary election of councillors in 2020.s 296AA: Ins 2014 No 80, Sch 1 [2]. Am 2019 No 6, Sch 1 [6]–[8].
296 How elections are to be administered
(1) Elections for the purposes of this Chapter are to be administered by an electoral services provider engaged by the council concerned, except as provided by this section.Note—Section 18 provides that certain provisions of this Act (relating to the conduct of elections) apply to council polls and constitutional referendums, with such modifications as may be necessary, in the same way as they apply to elections.(2) A council can enter into an arrangement (an election arrangement) with the Electoral Commissioner, by contract or otherwise, for the Electoral Commissioner to administer elections of the council as provided by this section. If such an arrangement is entered into, the Electoral Commissioner is to administer elections of the council in accordance with the arrangement.(3) An election arrangement for the Electoral Commissioner to administer all elections of a council can be entered into if—(a) the council resolves at least 18 months before the next ordinary election of councillors that such an arrangement is to be entered into, and(b) the arrangement is entered into no later than 15 months before the next ordinary election of councillors.(4) An election arrangement for the Electoral Commissioner to administer a particular election of a council (other than an ordinary election of councillors) can be entered into at any time if the council has resolved that an election arrangement for the election is to be entered into.(5) An election arrangement for the Electoral Commissioner to administer an ordinary election of councillors can be entered into less than 15 months before the election if—(a) the council has resolved that an election arrangement for the election is to be entered into, and(b) the Electoral Commissioner is satisfied that there are exceptional circumstances that make it necessary or desirable for the election to be administered by the Electoral Commissioner.(5A) Without limiting subsection (5), an election arrangement for the Electoral Commissioner to administer all elections of a council that is to include the ordinary election of councillors in 2020, or to administer that particular election, may be entered into if—(a) the council resolves on or before 1 October 2019 that an arrangement is to be entered into, and(b) the arrangement is entered into on or before 1 January 2020.(6) An election arrangement for the Electoral Commissioner to administer all elections of a council can be terminated by the council or the Electoral Commissioner at any time after the next ordinary election of councillors (by giving written notice of termination). If the arrangement is not terminated by either party after an ordinary election of councillors, the arrangement is automatically terminated 18 months before the next ordinary election of councillors.(7) The Electoral Commissioner is to administer the first election for an area after its constitution. Expenses incurred by the Electoral Commissioner (including the remuneration of election officials) in connection with such an election are to be met by the council and are recoverable from the council as a debt owed to the Electoral Commissioner.(8) This section does not apply to an election of the mayor or a deputy mayor by councillors.s 296: Subst 2011 No 24, Sch 1 [9]; 2013 No 43, Sch 1 [1]. Am 2019 No 6, Sch 1 [6] [9].
296A Elections administered by an electoral services provider
(1) This section applies to an election administered by an electoral services provider engaged by a council.(2) The electoral services provider is to appoint a returning officer and a substitute returning officer for the election. In the absence of the returning officer, the substitute returning officer is to exercise the functions of the returning officer.(3) The returning officer is to appoint one or more electoral officials.(4) An employee of a council for an area cannot be appointed as a returning officer or substitute returning officer for that area. However, an electoral official may be an employee of the council.(5) A general manager cannot be appointed as a returning officer, substitute returning officer or electoral official for any area.(6) For the purpose of conducting an election, the returning officer and substitute returning officer for an area are entitled to access to any relevant records of the council for the area.(7) For the purpose of administering an election, the electoral services provider is to—(a) appoint the polling places, and(b) determine the fees payable to the returning officer, substitute returning officer and electoral officials.(8) For the purpose of conducting an election, the returning officer is to determine any matter not provided for by this Act or the regulations.(9) Expenses incurred by the returning officer, substitute returning officer and electoral officials in connection with an election are to be met by the council.(10) The returning officer and the substitute returning officer must not vote at any election that they are conducting.s 296A: Ins 2011 No 24, Sch 1 [9]. Am 2019 No 6, Sch 1 [10] [11].
296B Elections administered by the Electoral Commissioner
(1) This section applies to an election administered by the Electoral Commissioner.(2) The Electoral Commissioner is to appoint a returning officer and a substitute returning officer for each area. The returning officer is to conduct elections on behalf of, and under the direction of, the Electoral Commissioner. In the absence of the returning officer, the substitute returning officer is to exercise the functions of the returning officer.(3) The returning officer is to appoint one or more electoral officials.(4) An employee of a council for an area cannot be appointed as a returning officer or substitute returning officer for that area. However, an electoral official may be an employee of the council.(5) For the purpose of conducting an election, the returning officer and substitute returning officer for an area are entitled to access to any relevant records of the council for the area.(6) For the purpose of conducting an election, the Electoral Commissioner is to—(a) appoint the polling places, and(b) determine the fees payable to the returning officer, substitute returning officer and electoral officials, and(c) determine any matter not provided for by this Act or the regulations.(7) The Electoral Commissioner, the returning officer and the substitute returning officer must not vote at any election that they are conducting.s 296B: Ins 2011 No 24, Sch 1 [9].
297 Delegation of functions by the Electoral Commissioner
The Electoral Commissioner may delegate to a person any of the Electoral Commissioner’s functions under this Act, other than this power of delegation.s 297: Subst 2011 No 24, Sch 1 [9].
Division 2 Electoral rolls
ch 10, pt 6, div 2, note: Rep 2011 No 24, Sch 1 [10].
298 Residential roll
(1) The Electoral Commissioner is to keep a roll for each area of persons who, in the opinion of the Electoral Commissioner, are entitled, in accordance with Part 1, to be enrolled as electors because they are residents of the area.(2) The Electoral Commissioner may use information kept on the Electoral Information Register (within the meaning of the Electoral Act 2017) or on any roll used for Commonwealth elections as sources of information for compiling the residential roll.(3) As soon as practicable after the closing date for an election that is to be administered by an electoral services provider engaged by the council concerned, the Electoral Commissioner is to provide the general manager with a printed and an electronic copy of the residential roll for the area and, if the area is divided into wards, a separate printed and electronic copy of the roll for each ward.(4) The electronic copy of the residential roll is to be provided in the format specified by the regulations (if any).(5) An electoral services provider engaged by a council or any other person must not use or disclose any information provided in a residential roll under this section other than for the purpose of administering an election under this Act.(6) A person must not use or disclose any such information for a commercial purpose.(7) Without limiting subsection (6), information is used for a commercial purpose if it is sold or offered for sale.(8) The costs of the Electoral Commissioner with respect to the carrying out of any function under subsection (3) are to be met by the council concerned and are recoverable from the council as a debt.Maximum penalty (subsections (5) and (6)): 1,000 penalty units.s 298: Am 2012 No 21, Sch 1 [4]; 2014 No 80, Sch 1 [3]; 2017 No 66, Sch 8.16 [4]; 2019 No 6, Sch 1 [6] [12].
299 Non-residential roll
(1A) As soon as is practicable after a roll of non-resident owners of rateable land for an election lapses under this section, the general manager is to prepare a new roll of non-resident owners of rateable land within the area for the next election and keep it updated.(1) Not later than the closing date for an election, the general manager is to finalise that roll of non-resident owners of rateable land for confirmation as the roll of non-resident owners of rateable land within the area for that election.(2) The roll of non-resident owners of rateable land lapses after the election for which it is prepared.(2A) The roll of non-resident owners of rateable land prepared by the general manager is to include the names of the persons who—(a) have applied, at any time, for the inclusion of their names in any such roll, and(b) on the closing date are, in the opinion of the general manager, qualified for inclusion in that roll.(3) The general manager (in relation to an election administered by an electoral services provider) is to confirm as the roll of non-resident owners of rateable land for the election the roll referred to in subsection (1) if, in the general manager’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the roll of non-resident owners of rateable land.(4) The Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to confirm as the roll of non-resident owners of rateable land for the election a roll certified by the general manager as being, in the general manager’s opinion, a roll of the persons who on the closing date are qualified for inclusion in the roll of non-resident owners of rateable land.s 299: Subst 2011 No 24, Sch 1 [11]. Am 2014 No 80, Sch 1 [4]–[6]; 2019 No 6, Sch 1 [13].
300 Roll of occupiers and ratepaying lessees
(1A) As soon as is practicable after a roll of occupiers and ratepaying lessees for an election lapses under this section, the general manager is to prepare a new roll of occupiers and ratepaying lessees (of land within the area) for the next election and keep it updated.(1) Not later than the closing date for an election, the general manager is to finalise that roll of occupiers and ratepaying lessees for confirmation as the roll of occupiers and ratepaying lessees (of land within the area) for the election.(2) The roll of occupiers and ratepaying lessees lapses after the election for which it is prepared.(2A) The roll of occupiers and ratepaying lessees prepared by the general manager is to include the names of the persons who—(a) have applied, at any time, for the inclusion of their names in any such roll, and(b) on the closing date are, in the opinion of the general manager, qualified for inclusion in that roll.(3) The general manager (in relation to an election administered by an electoral services provider) is to confirm as the roll of occupiers and ratepaying lessees for the election the roll referred to in subsection (1) if, in the general manager’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the roll of occupiers and ratepaying lessees.(4) The Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) is to confirm as the roll of occupiers and ratepaying lessees for the election a roll certified by the general manager as being, in the general manager’s opinion, a roll of the persons who on the closing date are qualified for inclusion in the roll of occupiers and ratepaying lessees.s 300: Subst 2011 No 24, Sch 1 [11]. Am 2014 No 80, Sch 1 [7]–[9]; 2019 No 6, Sch 1 [13].
301 Roll of electors
(1) The roll of electors for an area is a composite roll, consisting of the residential roll kept by the Electoral Commissioner under section 298 for the area, the non-residential roll prepared and confirmed under section 299 for the area, and the roll of occupiers and ratepaying lessees prepared and confirmed under section 300 for the area.(2) For each election, an authorised copy of the roll of electors is to be compiled in accordance with this Division.(3) If an area is divided into wards, the authorised copy of the roll of electors is to be prepared separately for each ward or, if the authorised copy of the roll is for a by-election to fill a casual vacancy, only for the ward in which the by-election is to be held.(4) An referred to in subsections (2) and (3) is a printed or electronic copy of the roll of the electors for the area or ward concerned as at the closing date for the election.s 301: Am 2003 No 7, Sch 2; 2012 No 21, Sch 1 [5]–[8].
302 Public inspection of roll of electors
(1) The Electoral Commissioner is to make the latest copy of the residential roll available for public inspection at any reasonable time during office hours at the office of the Electoral Commissioner and at any other place determined by the Electoral Commissioner.(2) The general manager is to make the latest copy of the non-residential roll and of the roll of occupiers and ratepaying lessees (once it is prepared) available for public inspection at any reasonable time during office hours at the office of the council.
303 Making of claims for inclusion in the roll
(1) A person may lodge with the Electoral Commissioner (in the case of the residential roll) or the general manager (in the case of another roll)—(a) a claim for the inclusion of his or her name in the roll or for the amendment of any particulars entered in the roll against the name, or(b) an objection to the inclusion in the roll of his or her name or the name of another person, or(c) an objection to the inclusion in the roll of specified particulars entered against his or her name or the name of another person.(2) Within 7 days after the lodging of a claim for inclusion in, or of an objection to an entry in, a roll, the Electoral Commissioner or general manager—(a) is to decide whether the claim or objection is to be allowed or disallowed, and(b) as soon as practicable, is to make such entries in, or alterations to, the roll as give effect to the decision, and(c) is to serve notice of the decision on the claimant or objector and, in the case of an objection, on any other person to whom the objection relates.(3) A person dissatisfied with the decision of the Electoral Commissioner or general manager may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.(4) The Electoral Commissioner or general manager is to make as soon as practicable such entries in the appropriate roll as are necessary to give effect to the decision on an application to the Civil and Administrative Tribunal.(5) Despite this section, the non-residential roll and the roll of occupiers and ratepaying lessees are not to be altered between the closing date for an election and the end of polling day.s 303: Am 1997 No 77, Sch 5.19 [1] [2]; 2012 No 21, Sch 1 [9]; 2013 No 95, Sch 2.91 [2] [3].
304 Enrolment if qualified in more than one respect
(1) A person may not, in respect of the same ward, be enrolled more than once in a roll of electors.(2) A person who is qualified for enrolment in respect of more than one ward of an area may be enrolled only in respect of the ward for which the person is qualified as a resident or, if the person is not so qualified—(a) the ward specified in a notice given by the person to the general manager before the closing date for the election, or(b) if no such notice is given, a ward chosen by the general manager.
305 Provisional voting
The regulations may prescribe circumstances in which a person is to be permitted to vote at an election under this Act where—(a) the person is not enrolled for the area or ward concerned, but claims to be entitled to be enrolled on the residential roll for that area, or(b) the person claims that the person’s name has been omitted from the roll for the area (for any reason), but claims he or she is entitled to vote at an election, or(c) there is other uncertainty as to a person’s entitlement to vote at an election (for example, the person claims the person’s name has been incorrectly marked off a roll at an election).s 305: Am 2000 No 53, Sch 1.15 [5]. Subst 2012 No 21, Sch 1 [10].
Division 3 Nominations and election
306 Nominations
(1) A person who is not duly nominated is not eligible for election as a councillor, or for election by the electors of an area as mayor.(2) To be duly nominated for election as a councillor for an area, or for election as mayor of an area by the electors of an area, a person must be enrolled as an elector for the area, and must be qualified to hold that civic office, at the closing date for the election.(3) A person may not be nominated for election as a councillor for more than one ward.(4) A nomination is to be proposed to and made by the returning officer as prescribed by the regulations and may be withdrawn by the nominee as prescribed by the regulations.(5) A nomination is to be rejected if the returning officer has not been paid the deposit prescribed by the regulations for the nomination or (if none is prescribed) a deposit of 50 per cent of the deposit required to be deposited for the nomination of a candidate for election to the Legislative Assembly.(5A) However, if a group that comprises more than 5 candidates—(a) proposes the nomination of all members of the group, and pays the deposit for the nomination of all members of the group, at the same time, andthe amount of the deposit for each candidate included in the group is 5 times the deposit for one candidate divided by the number of candidates in that group.(b) has lodged a claim under section 308A(2),(6) If a returning officer rejects a proposed nomination and the nominated person applies in writing for an explanation of the rejection, the returning officer must provide the nominated person with a written explanation within 7 days.(7) A deposit may be refunded in accordance with the regulations.s 306: Am 1998 No 141, Sch 1 [5]; 2000 No 112, Sch 1 [1]; 2017 No 66, Sch 8.16 [5].
307 Nomination where name omitted from roll
Despite section 306, a person whose nomination for election to a civic office would, but for this section, be rejected on the ground only that he or she is not enrolled as an elector for the area may be nominated if—(a) the name of the person has been omitted from the roll of electors mistakenly or accidentally, and(b) but for that omission the nomination would not have been rejected.
308 Candidate information sheets
(1) A nomination of a candidate for election to a civic office is to be accompanied by a candidate information sheet in the form of a statutory declaration made by the candidate.(2) The regulations may make provision for the matters that are to be included in, or that may or may not be included in, a candidate information sheet. The regulations may not prohibit the inclusion in a candidate information sheet of matter relating to a candidate’s policies.(3) The returning officer is to make each candidate information sheet available for public inspection at any reasonable time during office hours at the office of the returning officer and at any other place determined by the returning officer.(4) An electoral official at each polling place is to ensure that a copy of each candidate information sheet is displayed at the polling place.s 308: Am 1998 No 141, Sch 1 [6]–[8].
308A Grouping of candidates
(1) This section applies to an election in which there are 2 or more councillors to be elected.(2) Two or more candidates duly proposed for nomination for election may, before noon on the nomination day prescribed by the regulations, claim to have their names included in a group on the ballot-papers and in the order specified in the claim. The claim is to be lodged with the returning officer.(3) A claim under subsection (2) may also include a request for a group voting square for the group to appear on the ballot-papers to be used in the election concerned, but only if—(a) in the case of an area not divided into wards—the number of candidates in the group on the nomination day prescribed by the regulations is at least half the number of candidates to be elected, or(b) in the case of an area divided into wards—there are at least as many candidates in the group on the nomination day prescribed by the regulations as there are candidates to be elected.(4) A group voting square is to be printed on the ballot-papers above the names of the candidates in each group that has duly requested a group voting square under subsection (3), but only if more than one group has duly requested a group voting square.(5) An application under Part 7 for the name of a political party to be printed adjacent to the name of a candidate on the ballot-papers may include a further request for that name or a composite name to be printed on the ballot-papers adjacent to the candidates’ group voting square.s 308A: Ins 1995 No 12, Sch 1 [6]. Am 1998 No 141, Sch 1 [9]. Subst 2000 No 112, Sch 1 [2].
308B Group voting—recording of votes
(1) This section applies if a ballot-paper has group voting squares.(2) Instead of marking the separate voting squares for the candidates, the voter may record a vote—(a) by placing the number “1” in any one of the group voting squares, and(b) (if he or she wishes) by placing consecutive numbers (beginning with the number “2”) in any other of those group voting squares, in the order of his or her preference for the various groups of candidates.(3) The number “1” appearing in a group voting square for a group indicates—(a) that the voter’s first preference vote is for the first candidate in the group, and(b) that the voter’s subsequent preference votes are for the other candidates in the group in the order in which their names appear on the ballot-paper.(4) Subsequent numbers appearing in group voting squares for other groups indicate that the voter’s preferences (subsequent to those referred to in subsection (3)) are for the candidates in those groups—(a) in the order in which those groups are numbered by the voter, and(b) within each group, in the order in which the names of the candidates in that group appear on the ballot-paper.s 308B: Ins 1995 No 12, Sch 1 [6]. Subst 2000 No 112, Sch 1 [2].
308C Group voting—marking of ballot-papers
(1) If a voter records a vote on a ballot-paper by placing a mark in a group voting square but also indicates preferences for individual candidates, the following provisions apply—(a) if the indication of preferences for individual candidates would, if it stood alone, constitute a formal vote, that indication of preferences is taken to be the vote of the voter and the mark in the group voting square is to be disregarded,(b) if the indication of preferences for individual candidates would not, if it stood alone, constitute a formal vote, it is to be disregarded and the vote of the voter is to be taken to have been expressed by the mark in the group voting square.(2) A ballot-paper is not informal by reason only that the voter has recorded a vote by placing a cross or a tick in a group voting square and not placing any mark or writing in any other group voting square, but the ballot-paper is to be treated as if the cross or tick were the number “1”.(3) A ballot-paper is not informal by reason only that the voter has recorded a vote by placing the number “1” or a tick in a group voting square and placing a cross in (or a line through) all or some of the other group voting squares on the ballot-paper, but the ballot-paper is to be treated as if the marks in those other squares did not appear on the ballot-paper and any such tick were the number “1”.(4) A ballot-paper on which the voter has recorded a vote by placing in one group voting square the number “1” is not informal by reason only that—(a) the same preference (other than the first preference) is recorded on the ballot-paper for more than one group, but in that event the ballot-paper is to be treated as if those and any subsequent preferences had not been recorded, or(b) there is a break in the order of preferences for groups, but in that event the ballot-paper is to be treated as if any preference after the break had not been recorded, or(c) fewer preferences are recorded than there are candidates to be elected.(5) The ballot-papers for an election are not informal by reason only that they contain the name of a candidate whom a court has declared to be incapable of being elected at that election, but a preference for such a candidate (whether individually or as a member of a group) is to be disregarded, and (if necessary) subsequent preferences are to be renumbered accordingly.Note—The regulations make further provision regarding the formality of ballot-papers.s 308C: Ins 1995 No 12, Sch 1 [6]. Am 2000 No 112, Sch 1 [3] [4].
308D Group voting—regulations
The regulations may make provision for or with respect to the grouping of candidates, group voting squares and the matter to be printed on ballot-papers.s 308D: Ins 1995 No 12, Sch 1 [6]. Am 2000 No 112, Sch 1 [5].
309 Contested elections
(1) If the number of candidates nominated for election as councillors for a ward or an area is greater than the number required to be elected for the ward or area, the election is to be a contested election.(2) If there are two or more candidates for election by the electors of an area as mayor of the area, there is to be a contested election for the office.(3) If a candidate who is nominated for election to a civic office in respect of a ward or area dies before the day when the poll at a contested election closes, the election fails in respect of that civic office for the ward or area.s 309: Am 2000 No 53, Sch 1.15 [6].
310 Conduct of contested elections
A contested election for a civic office is to be conducted as prescribed by the regulations.
310A Postal votes
At any election, any postal vote must be accepted for further scrutiny if—(a) the postal vote is received by the returning officer before the time and day following the close of the poll prescribed by the regulations, and(b) the returning officer is satisfied that the voter has indicated, in accordance with the regulations, that the postal vote was completed before the close of the poll.s 310A: Ins 2000 No 112, Sch 1 [6]. Am 2001 No 56, Sch 1.8 [2]–[4]; 2021 No 11, Sch 1.2[3].
310B Elections may be conducted exclusively by postal voting
(1) This section applies to—(a) the City of Sydney local government area, and(b) any other local government area prescribed by the regulations for the purposes of this section.(2) A council may by a resolution made at least 18 months before the next ordinary election of councillors determine that voting at that election is to be conducted—(a) by means of attendance and postal voting, or(b) exclusively by means of postal voting.(3) Voting at an ordinary election of councillors must be conducted by the same means, whether by means of attendance and postal voting or exclusively by means of postal voting, as the previous ordinary election of councillors was conducted unless the council has determined by a resolution that complies with subsection (2) to change the means of conducting the voting.(4) Voting at a by-election must be conducted by the same means, whether by means of attendance and postal voting or exclusively by means of postal voting, as the previous ordinary election of councillors was conducted unless the council determines by a resolution made not later than 14 days after the casual vacancy occurred to change the means of conducting the voting.(5) Voting at a constitutional referendum or council poll must be conducted by the same means, whether by means of attendance and postal voting or exclusively by means of postal voting, as the previous ordinary election of councillors was conducted unless the council determines by a resolution made at the same meeting that the council determined to hold the referendum or take the poll to change the means of conducting the voting.(6) An election, constitutional referendum or council poll to be conducted exclusively by means of postal voting is to be conducted in accordance with the regulations.s 310B: Ins 2014 No 80, Sch 1 [10].
311 Uncontested elections
(1) A candidate nominated for election as a councillor for a ward or area is, without a poll being held, taken to have been elected if the number of candidates nominated for election as councillors for the ward or area is no greater than the number of councillors required to be elected for the ward or area.(2) A candidate nominated for election by the electors of the area as the mayor of the area is, without a poll being held, taken to have been elected if he or she is the only nominee for election as the mayor.(3) A person holding civic office under this section without a poll being held is taken to have been elected—(a) on the day on which the poll would have been held, if the election were an ordinary election, or(b) on the day of nomination, if paragraph (a) does not apply.(4) If a candidate who is nominated for election to a civic office in respect of a ward or area dies before the day referred to in subsection (3), the election in respect of that civic office for that ward or area is taken to have failed and no candidate in that election can be taken to have been elected in respect of that civic office for that ward or area.s 311: Am 2000 No 53, Sch 1.15 [7].
Division 4 Where residents fail to vote
312 Offence
A person whose name is on the residential roll in respect of a ward or area must vote at any contested election in the ward or area (other than an election of the mayor by the councillors) unless the person has a sufficient reason not to vote.Maximum penalty—1 penalty unit.
313 Check on double-voting and failure to vote
(1) After the close of the poll at a contested election, the copies of the roll of electors used at the election are to be checked by the Electoral Commissioner in accordance with this section to determine—(a) which electors’ names (if any) have been marked more than once, and(b) which electors (if any) appear to have failed to vote.(2) In the case of an election administered by an electoral services provider engaged by a council, the general manager must (within the period specified by the Electoral Commissioner) forward the copies of the roll of electors used at that election to the Electoral Commissioner for checking.(3) The Electoral Commissioner is, for each contested election, to prepare a list of the names of the persons on the residential roll who, although entitled to vote at the election, appear to have failed to vote and do not appear to have a sufficient reason for the failure.s 313: Subst 1998 No 141, Sch 1 [10]; 2011 No 24, Sch 1 [12]; 2012 No 21, Sch 1 [11]. Am 2019 No 6, Sch 1 [14].
314 Penalty notice to be issued for failure to vote
(1) The Electoral Commissioner is to serve a penalty notice on each resident who is indicated on the list prepared under section 313 as appearing not to have a sufficient reason for failing to vote at an election.(2) A penalty notice is to be served within 3 months after the close of the poll at the election to which it relates and, if not served personally, is to be served by post at the address of the resident last known to the Electoral Commissioner.(3) A penalty notice is a notice in the form prescribed by the regulations to the effect that, if the resident does not desire to have the failure to vote dealt with by a court—(a) the Electoral Commissioner must be given, within a time stated in the notice, a sufficient reason for the failure to vote, or(b) a penalty of 0.5 penalty unit must be paid to the Electoral Commissioner.(4) If, within 28 days after service of the penalty notice, the Electoral Commissioner is given a sufficient reason for the failure to vote or the penalty is paid, the resident is not liable to any further proceedings for the offence to which the penalty notice relates.(5) If an insufficient reason for a failure to vote is given in response to a penalty notice, the Electoral Commissioner is to include a statement to that effect in any penalty reminder notice served under the Fines Act 1996 in relation to the penalty notice.(6) For the purposes of this section, it is a sufficient reason for a failure by a resident to vote if the Electoral Commissioner is satisfied that the resident—(a) is dead, or(b) was absent from the area on polling day, or(c) was ineligible to vote, or(d) had an honest belief that he or she had a religious duty to abstain from voting, or(e) (Repealed)(f) was unable to vote for any other reason acceptable to the Electoral Commissioner.(7) If a penalty notice is served, the Electoral Commissioner is to note on the list prepared under section 313, or on a separate list of the residents on whom penalty notices have been served, whether or not there has been a response to the penalty notice and, if there has been a response, whether a sufficient reason has been given, or a penalty paid, for the failure to vote.s 314: Am 1998 No 141, Sch 1 [11]–[14].
315 Evidence in list of non-voters
(1) It is evidence—(a) of service of a penalty notice on a resident, or(b) of a lack of response to a penalty notice served on a resident, orif there is on a certified list a notation to that effect in relation to the resident.(c) that a reason was given for a failure by a resident to vote at an election, but the reason was insufficient,(2) For the purposes of this section, a certified list is a list that is certified by the Electoral Commissioner as (or as a copy of or extract from) the list prepared under section 313 or the separate list prepared under section 314(7).s 315: Am 1998 No 141, Sch 1 [15] [16].
Division 5 Miscellaneous
316 Position on ballot-paper
The order of candidates’ names on ballot-papers is to be determined by a method of random selection (including by electronic means) in accordance with the regulations.s 316: Am 2012 No 21, Sch 1 [12].
317 Validity of elections
(1) An election is not invalid just because—(a) there was a formal defect or error in or relating to the election, if the election was held substantially in accordance with this Act, or(b) there was a defect in the appointment of the returning officer, or(c) the time for closing the poll for postal voting was extended with the approval of the Electoral Commissioner or returning officer (in relation to an election administered by the Electoral Commissioner) or an electoral services provider or returning officer (in relation to an election administered by an electoral services provider) conducting the election, or(d) on polling day the name of a political party, or the abbreviation of that name, as registered in the Local Government Register of Political Parties appears printed adjacent to the name of a candidate on the ballot-papers for the election, but between the time the candidate was endorsed by the party and the polling day the candidate has ceased to be so endorsed.(2) A proclamation of the Governor to the effect that a specified irregularity does not invalidate an election is conclusive as to the matter stated in the proclamation.s 317: Am 2011 No 24, Sch 1 [13]; 2019 No 6, Sch 1 [13].
318 Lapsed or void election
(1) If an election for a civic office is not held when it is due, fails or is later declared void—(a) the holder of the civic office at the time when the election should have been held or when the election failed (or, in the case of a void election, if there is no such holder, the candidate purporting to have been elected at the void election), holds the office as if duly elected until an election is held under paragraph (b), and(b) the returning officer is to hold another election as if a casual vacancy had occurred in the civic office.(2) An election held for the purposes of this section is as valid as it would have been if it had been held at the time originally appointed for the purpose.
Part 6A Postponement of elections
ch 10, pt 6A: Ins 2004 No 25, Sch 2 [2].
318A Definition
In this Part—election requirements of this Act means the requirements of Parts 4 and 5 with respect to the holding of an ordinary election referred to in section 287 or a by-election referred to in section 292.s 318A: Ins 2004 No 25, Sch 2 [2].
318B Postponement of elections
(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if—(a1) (Repealed)(a) the council is the subject of—(i) an investigation under section 430 or any other provision of this Act, or(ii) a public inquiry, or(iii) an investigation by an authority (as defined in the Dictionary at the end of this Act) under any Act, or(b) without limiting anything else in this subsection, a matter affecting the boundaries of the council’s area is under consideration by the Boundaries Commission (whether or not involving an inquiry by the Commission).(2) The latest date to which the election requirements of this Act may be postponed by an order under this section is—(a) the date occurring 12 months after the order is made, or(b) if the postponement is extended by a further order under this section, 31 December in the calendar year following that in which the first such order was made.(3) An order may be made under this section even though the election requirements of this Act are in operation with respect to an election for the council.(4) On the making of an order under this section—(a) the election requirements of this Act are suspended in relation to the council for the period specified in the order, including with respect to an election for which the election requirements of this Act were in operation when the order was made, but not with respect to an election held on or before the day on which the order is published, and(b) the retiring councillors continue in office (subject to this Act) until an election is held, and(c) anything already done, under or for the purposes of those requirements in relation to the council for an election that would (but for the making of the order) have been held during the suspension period, has no effect or operation, and(d) a person who is taken to have been elected under section 311 at an election that would (but for the making of the order) be held during the suspension period is taken not to have been elected.(5) The suspension ceases to have effect if the order is revoked under section 318C.(6) If the suspension ceases to have effect through the passage of time and not through revocation of the order, the provisions of section 318C (other than subsections (1)(a) and (3)(a)) apply as if the order had been revoked.(7) If while an order under this section is in force a casual vacancy occurs in the office of mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of mayor elected by the councillors.(8) (Repealed)s 318B: Ins 2004 No 25, Sch 2 [2]. Am 2020 No 1, Sch 2.12[1] [2]; 1993 No 30, sec 318B(8).
318C Revocation of postponement
(1) The Minister may, by order published in the Gazette—(a) revoke a former order that has been made in relation to a council, and(b) if—(i) the day on which an election would (but for the former order) have been required to be held has passed, orappoint a day as the day on which the election is to be held.(ii) the day on which an election is required to be held will occur within 3 months after the day on which the order is made,(2) The day appointed by the order as the day on which an election is to be held is to be a Saturday occurring not less than 3 months, and not more than 6 months, after the day on which the order is made.(3) On the making of an order under this section—(a) the suspension by the former order of the election requirements of this Act is terminated, and(b) an election is to be held in accordance with the election requirements of this Act—(i) on the day ascertained in accordance with those requirements, or(ii) if the order appoints a different day, on the day so appointed.(4) In this section, former order means an order under section 318B.s 318C: Ins 2004 No 25, Sch 2 [2].
Part 7 Political parties
319 Local Government Register of Political Parties
(1) The Electoral Commissioner is to keep a register containing the names of the parties registered under this Part and other particulars or documents required by this Part.(2) The register is to be called the Local Government Register of Political Parties.(3) The register is to be kept in the form and manner decided by the Electoral Commissioner.
320 Registration of political parties
(1) The political parties registered under this Part are—(a) the political parties registered for the time being under Part 6 of the Electoral Act 2017, and(b) any other political parties registered for the time being for the purposes of this Act.(2) A party may be registered for the purposes of this Act in accordance with the procedure applicable under Part 6 of the Electoral Act 2017, subject to the following modifications of that Part—(a) references to an eligible party are to be read as references to an eligible local government party (as defined in subsection (3)),(b) references to Parliament are to be read as references to a council,(c) references to the names and addresses of 750 electors are to be read as references to the names, addresses and signatures of 100 electors,(d) references to the Register of Parties are to be read as references to the Local Government Register of Political Parties,(e) references to the issue of a writ for an election are to be read as references to the closing date for an election,(f) sections 58, 59(4), 63(2) and 66(6)(b) of that Act are to be disregarded,(g) the reference in section 63(1)(a) of that Act to Division 3 of Part 7 of that Act is a reference to any regulations under this Act regarding a political party proposing a candidate for nomination,(g1) the reference in section 63(1)(b) of that Act to Subdivision 2 of Division 5 of Part 7 of that Act is a reference to section 321 of this Act,(g2) the reference in section 63(1)(c) of that Act to Subdivision 6 of Division 14 of Part 7 of that Act is a reference to any regulations under this Act regarding registration of electoral material,(h) such other modifications as are prescribed by the regulations.(3) For the purposes of subsection (2), an eligible local government party is a party—(a) that has at least 100 members, and(b) that is established on the basis of a written constitution (however expressed) that sets out the platform or objectives of the party.s 320: Am 1995 No 11, Sch 1.75 [3]. Subst 1999 No 70, Sch 3. Am 2000 No 112, Sch 1 [7] [8]; 2017 No 66, Sch 8.16 [6] [7].
321 Party endorsement on ballot-papers
(1) The registered officer for a political party may apply to the returning officer to arrange for the name of the party as registered in the Local Government Register of Political Parties, or the abbreviation of the name as so registered, to be printed adjacent to the name of a candidate on the ballot-papers for an election to civic office, but only if the candidate has been endorsed for that election by the party.(2) A candidate at an election is taken to have been endorsed for the election by a political party registered in the Local Government Register of Political Parties only if—(a) the candidate is stated by the registered officer for the party to be so endorsed, or(b) the name of the candidate is included in a statement that is signed by the registered officer for the party, sets out the names of the candidates endorsed by the party for the election and is given to the returning officer before noon on the day for the nomination of candidates at the election, or(c) the returning officer is satisfied, after making such inquiries as the returning officer thinks appropriate, that the candidate is so endorsed.(3) A candidate for an election who has been endorsed by two or more political parties is taken to have been endorsed—(a) by the political party whose registered officer nominated the candidate, if the candidate was nominated by the registered officer, or(b) by the political party whose registered officer applied for the endorsement, if paragraph (a) does not apply, or(c) in any other case, by the political party specified by the candidate in a notice given to the returning officer.(4) An application under this section must be in writing signed by the applicant and delivered to the returning officer before noon on the day for the nomination of candidates at the election.(5) An application under this section may be withdrawn by the candidate by written notice to the returning officer before noon on the day for nomination.
322 Independent candidate on ballot-papers
(1) A candidate for election to civic office may apply to the returning officer to arrange for the word “Independent” to be printed adjacent to the name of the candidate on the ballot-papers for the election.(2) The application is to be in writing signed by the applicant and given to the returning officer before noon on the day for the nomination of candidates at the election.(3) If an application is made under both this section and section 321 in relation to the same candidate, the application under section 321 is void and is to be disregarded.(4) An application under this section may be withdrawn by the candidate by written notice to the returning officer before noon on the day for nomination.
323 Printing of political party name on ballot-papers
(1) The name of a political party is to be printed adjacent to the name of a candidate on the ballot-papers for an election to civic office if—(a) the candidate has been endorsed by the party as a candidate at the election, and(b) an application for the name of the party to be printed on the ballot-papers adjacent to the name of the candidate has been accepted by the returning officer.(2) The word “Independent” is to be printed adjacent to the name of a candidate for election to civic office if an application made by the candidate to have the word so printed has been accepted by the returning officer.
324 Form of political party name on ballot-papers
(1) The name of a political party to be printed on ballot-papers under this Part is the name entered for the party in the Local Government Register of Political Parties or the abbreviated name so entered for the party if application was made for the printing of the abbreviated name.(2) The names, or abbreviated names, of political parties printed on ballot-papers adjacent to the names of candidates are to be in capital letters in type that is uniform in size and style for all of the political parties’ names or abbreviated names.
Part 8 Enforcement powers in relation to elections
ch 10, pt 8: Rep 2008 No 43, sec 4 (1). Ins 2017 No 66, Sch 8.16 [8].
325 Enforcement powers of Electoral Commission
(1) For the purpose of enforcing compliance with this Act and the regulations under this Act in connection with elections, the Electoral Commission may exercise any investigative or other functions the Electoral Commission has under the Electoral Funding Act 2018 for the purpose of enforcing compliance with that Act.(2) Accordingly, a reference in sections 137, 138 and 155 of that Act to “this Act” is taken to be a reference to this Act and the regulations under this Act, but only in connection with the conduct of elections.s 325: Rep 2008 No 43, sec 4 (1). Ins 2017 No 66, Sch 8.16 [8] (am 2018 No 20, Sch 3.2 [1]). Am 2018 No 68, Sch 2.21 [1].
326–328 (Repealed)
ss 326–327: Rep 2008 No 43, sec 4 (1).
s 328: Am 1998 No 141, Sch 1 [17]–[20]; 2000 No 53, Sch 1.15 [8] [9]. Rep 2008 No 43, sec 4 (1).
Part 8A Political donations
ch 10, pt 8A: Ins 2008 No 44, Sch 1 [2].
328A General manager to keep register of political donation disclosures
(1) The general manager is required to keep a register of copies of current declarations of disclosures of political donations lodged with the New South Wales Electoral Commission by or on behalf of councillors of the council concerned (including in their capacity as candidates for election as councillors).(2) For the purposes of this section, current declarations of disclosures of political donations are declarations lodged under Part 3 of the Electoral Funding Act 2018 in respect of the relevant disclosure period that includes the date of the last election (other than a by-election) and all subsequent relevant disclosure periods.Note—Part 3 of the Electoral Funding Act 2018 makes provision for disclosure by councillors and candidates for civic office (and parties registered in connection with local government elections) of political donations and electoral expenditure.s 328A: Ins 2008 No 44, Sch 1 [2]. Am 2012 No 94, Sch 1 [5]; 2014 No 30, Sch 4.3; 2020 No 30, Sch 2.24[2].
328B Reference by general manager to Departmental Chief Executive of political donation matters
(1) If the general manager reasonably suspects that a councillor has not complied with the provisions of the code of conduct under section 440 relating to the disclosure of political donations or the manner of dealing with any perceived conflict of interest in relation to political donations, the general manager is to refer the matter to the Departmental Chief Executive.(2), (3) (Repealed)s 328B: Ins 2008 No 44, Sch 1 [2]. Am 2012 No 94, Sch 1 [6].
Part 9 Dismissal from civic office
329 Can the holder of a civic office be dismissed?
(1) Any person may apply to the Civil and Administrative Tribunal for an order that a person be dismissed from civic office.(2) On any such application, the Tribunal may order the dismissal of a person from civic office—(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or(b) if the person is disqualified from holding civic office.(3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.(4) If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied—(a) that the facts and circumstances giving rise to the disqualification are of a trifling character, and(b) that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing those acts.(5) Subsection (4) does not apply to a person who is disqualified from holding civic office by a decision of the Governor under section 440B.(6) (Repealed)s 329: Subst 1998 No 48, Sch 2.10. Am 2002 No 19, Sch 1 [2]; 2004 No 73, Sch 3 [2]; 2013 No 95, Schs 2.91 [4] [5], 7.3 [1]; 2016 No 38, Sch 1 [18].
330 (Repealed)
s 330: Subst 1998 No 48, Sch 2.10. Rep 2013 No 95, Sch 2.91 [6].
331 When does an order of dismissal take effect?
An order of dismissal made by the Tribunal takes effect—(a) if no appeal is made under the Civil and Administrative Tribunal Act 2013 against the order, at the end of the period during which such an appeal may be made, or(b) if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or(c) if, within that period, the person against whom the order is made serves on the general manager of the council concerned written notice of intention not to appeal against the order, when the notice is lodged.s 331: Subst 1998 No 48, Sch 2.10. Am 2013 No 95, Sch 2.91 [7].
Chapter 11 How are councils staffed?
ch 11, introduction: Rep 2016 No 55, Sch 3.17 [2].
Part 1 Organisation structure
332 Determination of structure
(1) A council must, after consulting the general manager, determine the resources to be allocated towards the employment of staff.(1A) The general manager must, after consulting the council, determine the positions within the organisation structure of the council.(1B) The positions within the organisation structure of the council are to be determined so as to give effect to the priorities set out in the strategic plans (including the community strategic plan) and delivery program of the council.(2), (3) (Repealed)s 332: Am 1994 No 44, Sch 7; 2016 No 38, Sch 1 [19] [20]; 2024 No 29, Sch 1[5]–[7].
333 Re-determination and review of structure
The organisation structure may be re-determined under this Part from time to time. The council must review, and may re-determine, the organisation structure within 12 months after any ordinary election of the council.s 333: Am 2016 No 38, Sch 1 [21] [22].
Part 2 The general manager
ch 11, pt 2, hdg: Am 2024 No 29, Sch 1[8].
334 Appointment of general manager
(1) A council must appoint a person to be its general manager.(2) The person must not be a body corporate.s 334: Am 2024 No 29, Sch 1[9].
335 Functions of general manager
The general manager of a council has the following functions—(a) to conduct the day-to-day management of the council in accordance with the strategic plans, programs, strategies and policies of the council,(b) to implement, without undue delay, lawful decisions of the council,(c) to advise the mayor and the governing body on the development and implementation of the strategic plans, programs, strategies and policies of the council,(d) to advise the mayor and the governing body on the appropriate form of community consultation on the strategic plans, programs, strategies and policies of the council and other matters related to the council,(e) to prepare, in consultation with the mayor and the governing body, the council’s community strategic plan, community engagement strategy, resourcing strategy, delivery program, operational plan and annual report,(f) to ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions,(g) to exercise any of the functions of the council that are delegated by the council to the general manager,(h) to appoint staff in accordance with the organisation structure determined under this Chapter and the resources approved by the council,(i) to direct and dismiss staff,(j) to implement the council’s workforce management strategy,(k) any other functions that are conferred or imposed on the general manager by or under this or any other Act.s 335: Am 2009 No 67, Sch 1 [6]. Subst 2016 No 38, Sch 1 [23].
336 Filling of vacancy in position of general manager
(1) If a vacancy occurs in the position of general manager, the council must immediately appoint a person under section 334 to the vacant position or appoint a person to act in the vacant position.(2) A vacancy occurs in the position of general manager if the general manager—(a) dies, or(b) completes the term of his or her contract and is not re-appointed, or(c) resigns from the position, or(d) becomes a mentally incapacitated person and is removed from the position by the council because of that mental incapacity, or(e) is sentenced to imprisonment, or(f) is removed from the position for breach of or under the terms of the general manager’s contract with the council.(3) A person may be removed from office under subsection (2)(d) only if, taking into account the person’s past training, qualifications and experience relevant to employment as a general manager, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her mental incapacity—(a) would be unable to carry out the inherent requirements of the position of general manager, or(b) would, in order to carry out those requirements, require services or facilities that are not required by persons who are not mentally incapacitated persons and the provision of which would impose an unjustifiable hardship (within the meaning of the Disability Discrimination Act 1992 of the Commonwealth) on the council.s 336: Am 1998 No 34, Sch 1.5 [1] [2]; 1999 No 94, Sch 4.130 [2].
337 (Repealed)
s 337: Rep 2024 No 29, Sch 1[10].
338 Nature of contracts for general managers
(1) The general manager of a council must be employed under a contract that is performance-based.(2) The term of a contract must not be less than 12 months or more than 5 years (including any option for renewal). A term that is less than 12 months is taken to be for 12 months and a term for more than 5 years is taken to be limited to 5 years.(3) Contracts may be renewed from time to time.(4) The Departmental Chief Executive may, by order in writing, approve one or more standard forms of contract for the employment of the general manager of a council.(5) A standard form of contract approved by the Departmental Chief Executive is not to include provisions relating to the level of remuneration or salary (including employment benefits) of the general manager of a council, performance-based requirements or the duration of the contract.(6) A council is not to employ a person to a position to which one or more standard forms of contract approved for the time being under this section applies or apply except under such a standard form of contract.(7) The council may include in an employment contract for the general manager additional provisions to those contained in the standard form of contract but only if those provisions relate to any of the following—(a) the level of remuneration or salary (including employment benefits) of the person employed under the contract,(b) subject to subsections (1) and (2), performance-based requirements or the duration of the contract.(8) Despite subsection (6), the approval, amendment or substitution of a standard form of contract under this section does not affect any employment contract between a council and the general manager of the council if the employment contract was entered into before the approval, amendment or substitution of the standard form of contract.(9) However, subsection (6) does apply to the renewal of any such employment contract occurring after the standard form of contract is approved, amended or substituted and to all new contracts entered into after the standard form of contract is approved, amended or substituted.s 338: Am 2005 No 59, Sch 1 [6]; 2024 No 29, Sch 1[11]–[15].
339 (Repealed)
s 339: Rep 2016 No 38, Sch 1 [24].
340 Industrial arbitration excluded
(1) In this section, a reference to the employment of the general manager is a reference to—(a) the appointment of, or failure to appoint, a person to the vacant position of general manager, or(b) the removal, retirement, termination of employment or other cessation of office of the general manager or another senior staff member, or(c) the remuneration or conditions of employment of the general manager or another senior staff member.(2) The employment of the general manager, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.(3) Subsection (2) applies whether or not any person has been appointed to the vacant position of general manager.(4) No award, agreement, contract determination or order made or taken to have been made or continued in force under the Industrial Relations Act 1996, whether made before or after the commencement of this section, has effect in relation to the employment of a general manager.(5) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to the position of general manager, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.s 340: Am 1996 No 121, Sch 4.35; 2024 No 29, Sch 1[16]–[21].
341 Duty to report bankruptcy
If a general manager becomes personally insolvent, the general manager must—(a) immediately give notice of the personal insolvency to the council, and(b) give the council, within the time specified by the council, further information concerning the cause of the personal insolvency.s 341: Subst 2024 No 29, Sch 1[22].
Part 3 The public officer
342 Appointment of the public officer
(1) The general manager is to designate a member of staff as the public officer of the council.(2) (Repealed)s 342: Am 2024 No 29, Sch 1[23].
343 Functions of the public officer
(1) The public officer—• may deal with requests from the public concerning the council’s affairs• has the responsibility of assisting people to gain access to public documents of the council• may receive submissions made to the council• may accept service of documents on behalf of the council• may represent the council in any legal or other proceedings• has such other functions as may be conferred or imposed on the public officer by the general manager or by or under this Act.(2) The public officer is subject to the direction of the general manager.
Part 4 Equal employment opportunity
344 Objects
(1) The objects of this Part are—(a) to eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital or domestic status and disability in councils, and(b) to promote equal employment opportunity for women, members of racial minorities and persons with disabilities in councils.(2) In this section, disability has the same meaning as in the Disability Discrimination Act 1992 of the Commonwealth.Note—The Disability Discrimination Act 1992 of the Commonwealth defines disability to include such things as loss of bodily or mental function, loss of a part of the body, malfunction, malformation or disfigurement of a part of the body and certain other conditions, disorders, illnesses and diseases. That Act makes it unlawful for an employer to discriminate against a person on the ground of the other person’s disability in certain contexts. These include in determining who should be offered employment (section 15 of that Act). Such discrimination is unlawful unless the person, because of his or her disability, would be unable to carry out the inherent requirements of the particular employment or would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.s 344: Am 1998 No 34, Sch 1.5 [3]–[5]; 2010 No 59, Sch 1.17.
345 Preparation and implementation of EEO management plans
s 345, hdg: Am 2000 No 53, Sch 1.15 [10].(1) A council must prepare and implement an equal employment opportunity management plan in order to achieve the objects of this Part.(2) The plan is to include provisions relating to—(a) the devising of policies and programs by which the objects of this Part are to be achieved, and(b) the communication of those policies and programs to persons within the staff of the council, and(c) the collection and recording of appropriate information, and(d) the review of personnel practices within the council (including recruitment techniques, selection criteria, training and staff development programs, promotion and transfer policies and patterns, and conditions of service) with a view to the identification of any discriminatory practices, and(e) the setting of goals or targets, where these may reasonably be determined, against which the success of the plan in achieving the objects of this Part may be assessed, and(f) the means, other than those referred to in paragraph (e), of evaluating the policies and programs referred to in paragraph (a), and(g) the revision and amendment of the plan, and(h) the appointment of persons within the council to implement the provisions referred to in paragraphs (a)–(g).(3) An equal employment opportunity management plan may include provisions, other than those referred to in subsection (2), that are not inconsistent with the objects of this Part.(4) A council may, from time to time, amend its equal employment opportunity management plan.
346 Inconsistencies with the Anti-Discrimination Act 1977
(1) The provisions of an equal employment opportunity management plan, to the extent of any inconsistency between those provisions and the provisions of the Anti-Discrimination Act 1977, prevail.(2) This section does not apply to or in respect of the provisions of a plan which are the subject of a reference under section 347 to the Anti-Discrimination Board or the Public Service Commissioner.Note—This section adopts the principles in section 122K of the Anti-Discrimination Act 1977. Those principles are designed to ensure that full effect can be given to the objects of this Part.s 346: Am 2011 No 48, Sch 2.5.
347 References
(1) Where the Minister is dissatisfied with any matter relating to the preparation, amendment or implementation of an equal employment opportunity management plan by a council or any failure or omission of a council with respect to the preparation, amendment or implementation of any such plan, the Minister may refer the matter to the Anti-Discrimination Board or the Public Service Commissioner.(2) The provisions of section 122N of the Anti-Discrimination Act 1977, and the succeeding provisions of Part 9A of that Act, apply to and in respect of a reference under this section to the Anti-Discrimination Board as if it were a reference under section 122M of that Act and as if the council were an authority within the meaning of that Part.(3) A reference in this section to a provision of Part 9A of the Anti-Discrimination Act 1977 is a reference to that provision as in force immediately before the repeal of that Part of that Act by the Government Sector Employment Act 2013.s 347: Am 2011 No 48, Sch 2.5; 2014 No 33, Sch 3.18 [2].
Part 5 Other provisions concerning staff
348 Advertising of staff positions
(1) When it is proposed to make an appointment to a position within the organisation structure of the council, the position must be advertised in a manner sufficient to enable suitably qualified persons to apply for the position.(2) (Repealed)(3) This section does not apply to—(a) the re-appointment, under a new contract, of a general manager, or(b) the appointment of an employee if the term of employment is for—(i) not more than 12 months, or(ii) two or more periods that together are not more than 12 months in any period of 2 years.s 348: Am 2000 No 112, Sch 3 [16]; 2018 No 25, Sch 2.18 [3]; 2024 No 29, Sch 1[24].
349 Appointments to be on merit
(1) When the decision is being made to appoint a person to a position—(a) only a person who has applied for appointment to the position may be selected, and(b) from among the applicants eligible for appointment, the applicant who has the greatest merit is to be selected.(2) The merit of the persons eligible for appointment to a position is to be determined according to—(a) the nature of the duties of the position, and(b) the abilities, qualifications, experience and standard of work performance of those persons relevant to those duties.(3) In determining the merit of a person eligible for appointment to a position, regard is to be had to the objects of Part 4 of this Chapter (see section 344).s 349: Am 1998 No 34, Sch 1.5 [6].
350 Appointments to which secs 348 and 349 do not apply
Sections 348 and 349 do not apply to—(a) an appointment by way of demotion, or(b) an appointment by way of lateral transfer, unless the council decides that those sections are to apply to the appointment.
351 Temporary appointments
(1) If a position (including a general manager position) within the organisation structure of the council is vacant or the holder of such a position is suspended from duty, sick or absent—(a) the council, in the case of the general manager’s position, ormay appoint a person to the position temporarily.(b) the general manager, in the case of any other position,(2) A person who is appointed to a position temporarily may not continue in that position—(a) if the holder of the position is on parental leave—for a period of more than 24 months, or(b) in any other case—for a period of more than 12 months.s 351: Am 2008 No 92, Sch 1 [3]; 2024 No 29, Sch 1[25].
352 Independence of staff for certain purposes
(1) A member of staff of a council is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the member.(2) This section does not prevent the council or the mayor from directing the general manager of the council to provide advice or a recommendation.s 352: Subst 2004 No 73, Sch 2 [1].
353 Other work
(1) The general manager must not engage, for remuneration, in private employment or contract work outside the service of the council without the approval of the council.(2) A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member’s council duties unless he or she has notified the general manager in writing of the employment or work.(3) The general manager may prohibit a member of staff from engaging, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member’s council duties.(4) A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council if prohibited from doing so under subsection (3).
354 Restriction on appointment of a former mayor or councillor
(1) A person who has held civic office in relation to a council must not be appointed to any paid position on the staff of the council within 6 months after ceasing to hold the office.(2) A purported appointment in contravention of this section is void.
354A Ministerial approval for certain termination payments to general managers
(1) A council must not make a payment to the general manager of the council in relation to his or her termination of employment (including termination on the ground of redundancy) without first obtaining the Minister’s approval to the payment.(2) The Minister may refuse to approve a payment under subsection (1) if the Minister is not satisfied the payment is appropriate.(3) A payment referred to in subsection (1) that is made without the Minister’s approval—(a) is to be repaid to the council, and(b) is a debt due to the council recoverable by the council or the Minister in any court of competent jurisdiction.(4) Subsection (1) does not apply to payments of a kind exempted from this section by the regulations.(5) To remove doubt, this section extends to—(a) a termination payment made under a contract and to an ex gratia termination payment, and(b) a termination payment made under a contract entered into before the commencement of this section.s 354A: Ins 2003 No 30, Sch 1 [3]. Am 2024 No 29, Sch 1[26] [27].
Part 6 Arrangements for council staff affected by the constitution, amalgamation or alteration of council areas
ch 11, pt 6: Ins 2003 No 30, Sch 1 [4].
354B Definitions
(1) In this Part—boundary alteration means an alteration of the boundaries of one or more areas by or under a proclamation under Chapter 9.existing staff member of a transferee council means, in relation to a staff transfer occurring in connection with a boundary alteration, a person who was a member of the staff of the transferee council immediately before the transfer day and who has not ceased to be a member of that staff.Note—In the case of a staff transfer effected in connection with the amalgamation of areas under Chapter 9, no members of staff continue in the employment of the councils of the areas being amalgamated because all those areas are dissolved. The members of staff would become employees of the newly constituted council.former council, in relation to a transferred staff member, means the council that employed the staff member immediately before the transfer day.proposal means—(a) a proposal made under section 215 to constitute one or more areas, or(b) a proposal made under section 218E to amalgamate one or more areas, or(c) a proposal made under section 218E to alter the boundaries of one of more areas.proposal period means (subject to subsection (2)) the period—(a) starting on the day the proposal is made, and(b) ending on the following day—(i) if the Minister decides not to proceed with the proposal—the day that decision is made under section 215 or 218E,(ii) if the Minister refers the proposal to the Boundaries Commission or the Departmental Chief Executive but decides to decline to recommend to the Governor that the proposal be implemented—the day that decision is made,(iii) if the Minister recommends to the Governor that the proposal be implemented—immediately before the date specified in the proclamation implementing the proposal.remaining staff member of a transferor council means, in relation to a staff transfer occurring in connection with a boundary alteration, a person who was a member of the staff of the transferor council immediately before the transfer day and who has not ceased to be a member of that staff.Note—In the case of a staff transfer effected in connection with the amalgamation of areas under Chapter 9, no members of staff continue in the employment of the councils of the areas being amalgamated because all those areas are dissolved. The members of staff would become employees of the newly constituted council.rural centre means a centre of population of 5,000 people or fewer, and includes a geographical area that is prescribed, or is of a kind prescribed, by regulations in force for the purposes of this definition as being a rural centre.staff transfer means a transfer of staff from the employment of one council to the employment of another council by or under a proclamation under Chapter 9.transfer day, in relation to a staff transfer, means the day on which the staff concerned were transferred from the employment of one council to the employment of another council.transferee council, in relation to a staff transfer, means the council into whose employment the staff concerned were transferred on the transfer day.transferor council, in relation to a staff transfer, means the council from whose employment the staff concerned were transferred on the transfer day.transferred staff member means a member of the staff of a council who is transferred to the employment of another council by or under a proclamation under Chapter 9.work base means the office, depot or other place of work at or from which any staff work.(2) The Minister may, by notice in writing to a council, extend the proposal period in relation to that council by determining an earlier date for the start of the period than the date the proposal is made under section 215 or 218E.s 354B: Ins 2003 No 30, Sch 1 [4]. Am 2004 No 25, Sch 3 [1] [2].
354C No forced redundancy of affected staff members during proposal period
The employment of a member of staff of a council that is affected by a proposal (other than of a general manager) must not be terminated, without the staff member’s agreement, during the proposal period on the ground of redundancy.s 354C: Ins 2003 No 30, Sch 1 [4]. Am 2024 No 29, Sch 1[28].
354D Preservation of entitlements of staff members
(1) If a staff transfer occurs, the employment of—(a) a transferred staff member, andother than a general manager, continues on the same terms and conditions that applied to the staff member immediately before the transfer day, subject to section 354E.(b) in the case of a boundary alteration—(i) a remaining staff member of the transferor council, and(ii) an existing staff member of the transferee council,(2) Subsection (1) applies until other provision is duly made under any Act or law.(3) Neither the contract of employment nor the period of employment of a transferred staff member is taken to have been broken by the transfer for the purposes of any law, award or agreement relating to the employment of that staff member.(4) A transferred staff member is not entitled to receive any payment or other benefit merely because the staff member ceases to be a staff member of the former council.(5) The transfer of a transferred staff member does not affect any accrued rights the staff member had immediately before the transfer, including in relation to recreation leave, sick leave, long service leave and superannuation, but does not entitle the staff member to claim dual benefits of the same kind for the same period of service.s 354D: Ins 2003 No 30, Sch 1 [4]. Am 2004 No 25, Sch 3 [3]; 2024 No 29, Sch 1[29].
354E Certain increases or decreases in staff entitlements during proposal period not binding on transferee council without approval
(1) This section applies to a determination of the terms and conditions of employment of staff members of a council that is made during the proposal period, and extends to any such determination made in an industrial agreement with or on behalf of the staff members, in an employment contract with a staff member or in an employment policy of the council.(2) After the transfer day—(a) the transferee council is not bound by any such determination, andunless the determination has been approved by the Minister under this section or the approval of the Minister is not required under this section.(b) any such determination is to be disregarded for the purposes of section 354D(1),(3) If an application is made to the Minister for approval of a determination to which this section applies, the Minister may refuse to approve the determination only if the Minister is satisfied that the determination arises from or is in anticipation of the proposal and would result in an unjustifiable increase or decrease in the obligations of the transferee council in relation to transferred staff members.(4) A determination to which this section applies is not required to be approved by the Minister if—(a) it complies with the requirements of regulations made for the purposes of this section, or(b) the Minister determines in writing that approval is not required.s 354E: Ins 2003 No 30, Sch 1 [4]. Am 2004 No 25, Sch 3 [4].
354F No forced redundancy of transferred staff members for 3 years after transfer
If a staff transfer occurs, the employment of—(a) a transferred staff member, andother than a general manager, must not be terminated, without the staff member’s agreement, within 3 years after the transfer day on the ground of redundancy arising from the staff transfer.(b) in the case of a boundary alteration—(i) a remaining staff member of the transferor council, and(ii) an existing staff member of the transferee council,s 354F: Ins 2003 No 30, Sch 1 [4]. Subst 2004 No 25, Sch 3 [5]. Am 2024 No 29, Sch 1[30] [31].
354G Lateral transfer of transferred staff members
(1) This section applies if either—(a) the following subparagraphs apply—(i) a staff transfer occurs in connection with the constitution of a new area, whether as a result of the amalgamation of two or more areas or otherwise, and(ii) within 3 years after the transfer day, the general manager proposes to make an appointment to a position within the organisational structure of the council (the council), and(iii) a transferred staff member was, immediately before the transfer day, performing substantially the same duties for the staff member’s former council as are required to be performed in the position to be filled, or(b) the following subparagraphs apply—(i) a staff transfer occurs in connection with a boundary alteration, and(ii) within 3 years after the transfer day, the general manager of a council (the council) affected by the boundary alteration proposes to make an appointment to a position within the organisational structure of the council, and(iii) a staff member of the council was, immediately before the transfer day, performing substantially the same duties for either or any of the affected councils as are required to be performed in the position to be filled.(2) The council—(a) must notify its staff members of the position and give its staff members a reasonable opportunity to apply for the position, and(b) must not externally advertise the position.(3) A person who—(a) applies for appointment to a position referred to in this section, and(b) is employed by the council at the time of making the application, andmust be considered for appointment to the position in preference to any other applicant for the position who is not such a person.(c) is a person referred to in subsection (1)(a)(iii) or (b)(iii), as the case requires,(4) If there is more than one person referred to in subsection (3) who is eligible for appointment to a position, the applicant who has the greatest merit, determined in accordance with section 349(2) and (3), is to be selected.(5) Subject to subsection (4), sections 348 and 349 do not apply to an appointment to a position referred to in this section and the Council may not decide, under section 350(b), that those sections apply to the appointment.s 354G: Ins 2003 No 30, Sch 1 [4]. Am 2004 No 25, Sch 3 [6] [7]; 2024 No 29, Sch 1[32]–[34].
354H External advertising not required in certain circumstances
(1) This section applies if either—(a) the following subparagraphs apply—(i) a staff transfer occurs in connection with the constitution of a new area, whether as a result of the amalgamation of two or more areas or otherwise, and(ii) within 3 years after the transfer day, the general manager proposes to make an appointment to a position within the organisational structure of the council (the council), and(iii) the general manager is satisfied that one or more of the transferred staff members are suitably qualified for the position, and(iv) section 354G does not apply with respect to the position, or(b) the following subparagraphs apply—(i) a staff transfer occurs in connection with a boundary alteration, and(ii) within 3 years after the transfer day, the general manager of a council (the council) affected by the boundary alteration proposes to make an appointment to a position within the organisational structure of the council, and(iii) the general manager is satisfied that one or more of the staff members of the council who were, immediately before the transfer day, members of the staff of either or any of the affected councils are suitably qualified for the position, and(iv) section 354G does not apply with respect to the position.(2) The council—(a) must notify its staff members of the position and give its staff members a reasonable opportunity to apply for the position, and(b) must not externally advertise the position.(3) Section 348 does not apply to an appointment to a position referred to in this section.s 354H: Ins 2003 No 30, Sch 1 [4]. Am 2004 No 25, Sch 3 [8]; 2024 No 29, Sch 1[35] [36].
354I Limitations on transfer of work base of transferred staff
(1) This section applies, where a staff transfer occurs, to—(a) a transferred staff member, andother than a general manager.(b) in the case of a boundary alteration—(i) a remaining staff member of the transferor council, and(ii) an existing staff member of the transferee council,(2) The staff member must not be required by the council employing the staff member to be based within 3 years after the transfer day at a work base located—(a) in a case where the staff member is a transferred staff member—outside the boundaries of the area of his or her former council as they existed immediately before the transfer day, or(b) in a case where the staff member is a remaining staff member of the transferor council—outside the boundaries of the area of the transferor council as they existed immediately before the transfer day, orunless the staff member gives his or her written consent to the change of work base or such a requirement would not cause the staff member to suffer unreasonable hardship because of the distance required to travel to the proposed work base.(c) in a case where the staff member is an existing staff member of the transferee council—outside the boundaries of the area of the transferee council as they existed immediately before the transfer day,s 354I: Ins 2004 No 25, Sch 3 [9]. Am 2024 No 29, Sch 1[37] [38].
Chapter 12 How do councils operate?
ch 12, introduction: Rep 2016 No 55, Sch 3.17 [2].
Part 1 General
355 How a council may exercise functions
A function of a council may, subject to this Chapter, be exercised—(a) by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or(b) by a committee of the council, or(c) partly or jointly by the council and another person or persons, or(d) jointly by the council and another council or councils (including by means of a joint organisation or a Voluntary Regional Organisation of Councils of which the councils concerned are members), or(e) by a delegate of the council (which may, for example, be a joint organisation or a Voluntary Regional Organisation of Councils of which the council is a member).s 355: Am 1998 No 16, Sch 1 [3]; 2017 No 65, Sch 1 [3].
356 Can a council financially assist others?
(1) A council may, in accordance with a resolution of the council, contribute money or otherwise grant financial assistance to persons for the purpose of exercising its functions.(2) A proposed recipient who acts for private gain is not ineligible to be granted financial assistance but must not receive any benefit under this section until at least 28 days’ public notice of the council’s proposal to pass the necessary resolution has been given.(3) However, public notice is not required if—(a) the financial assistance is part of a specific program, and(b) the program’s details have been included in the council’s draft operational plan for the year in which the financial assistance is proposed to be given, and(c) the program’s proposed budget for that year does not exceed 5 per cent of the council’s proposed income from the ordinary rates levied for that year, and(d) the program applies uniformly to all persons within the council’s area or to a significant group of persons within the area.(4) Public notice is also not required if the financial assistance is part of a program of graffiti removal work.Note—Part 4 of the Graffiti Control Act 2008 deals with graffiti removal work.s 356: Am 1997 No 61, Sch 1 [15]; 2001 No 19, Sch 1 [4]; 2002 No 20, Sch 1 [4] [5]; 2008 No 100, Sch 2.3 [4]; 2009 No 67, Sch 1 [7].
357 Can a council exercise its functions only within its area?
A council may exercise its functions within its area or outside its area, but may exercise its regulatory functions under Chapter 7 only within its area.
358 Restrictions on formation of corporations and other entities
(1) A council must not form or participate in the formation of a corporation or other entity, or acquire a controlling interest in a corporation or other entity, except—(a) with the consent of the Minister and subject to such conditions, if any, as the Minister may specify, or(b) as provided by this Act.(2) This section does not prevent a council from being a member of a co-operative society or a company limited by guarantee and licensed not to use the word “Limited” in its name.(3) In applying for the Minister’s consent under subsection (1)(a), the council is required to demonstrate, to the Minister’s satisfaction, that the formation of, or the acquisition of the controlling interest in, the corporation or entity is in the public interest.(3A) The regulations may make provision for or with respect to the matters to be taken into account by the Minister in deciding whether to grant consent under this section and the conditions that may or must be specified by the Minister under this section.(4) In this section, entity means any partnership, trust, joint venture, syndicate or other body (whether or not incorporated), but does not include any such entity that is of a class prescribed by the regulations as not being within this definition.s 358: Am 2003 No 82, Sch 1.17 [1]; 2004 No 113, Sch 1 [3] [4]; 2008 No 92, Sch 1 [4].
359 Can a council act as an agent?
A council may act as the agent of another person or of the Crown, subject to the regulations.
How can a council exercise its functions?
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Part 2 How are decisions made?
Division 1 Code of meeting practice
360 Conduct of meetings of councils and committees
(1) The regulations may prescribe a model code of meeting practice for the conduct of meetings of councils and committees of councils of which all the members are councillors.(2) The model code may contain both mandatory and non-mandatory provisions.(3) A council must, not later than 12 months after an ordinary election of councillors, adopt a code of meeting practice that incorporates the mandatory provisions of the model code prescribed by the regulations. The adopted code may also incorporate the non-mandatory provisions and other provisions.(4) A code adopted or amended by the council must not contain provisions that are inconsistent with the mandatory provisions.(5) A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it.s 360: Subst 2016 No 38, Sch 1 [25].
361 Preparation, public notice and exhibition of draft code
(1) Before adopting a code of meeting practice, a council must prepare a draft code.(2) The council must give public notice of the draft code after it is prepared.(3) The period of public exhibition must not be less than 28 days.(4) The public notice must also specify a period of not less than 42 days after the date on which the draft code is placed on public exhibition during which submissions may be made to the council.(5) The council must publicly exhibit the draft code in accordance with its notice.
362 Adoption of draft code
(1) After considering all submissions received by it concerning the draft code, the council may decide—(a) to amend those provisions of its draft mandatory code that are non-mandatory provisions, or(b) to adopt the draft code as its code of meeting practice.(2) If the council decides to amend its draft code, it may publicly exhibit the amended draft in accordance with this Division or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft code without public exhibition as its code of meeting practice.s 362: Am 2016 No 38, Sch 1 [26].
363 Amendment of the code
A council may amend a code adopted under this Part by means only of a code so adopted.
364 Public availability of the code
(1) The code of meeting practice adopted under this Division by a council must be available for public inspection free of charge at the office of the council during ordinary office hours.(2) Copies of the code must be available free of charge or, if the council determines, on payment of the approved fee.
Division 2 Other provisions concerning council meetings
365 How often does the council meet?
The council is required to meet at least 10 times each year, each time in a different month.
366 Calling of extraordinary meeting on request by councillors
If the mayor receives a request in writing signed by at least 2 councillors, the mayor must call an extraordinary meeting of the council to be held as soon as practicable but in any event within 14 days after receipt of the request.s 366: Am 1994 No 44, Sch 8 (1); 1995 No 12, Sch 1 [7].
367 Notice of meetings
(1) The general manager of a council must send to each councillor, at least 3 days before each meeting of the council, a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting.(2) Notice of less than 3 days may be given of an extraordinary meeting called in an emergency.(3) A notice under this section and the agenda for, and the business papers relating to, the meeting may be given to a councillor in electronic form but only if all councillors have facilities to access the notice, agenda and business papers in that form.s 367: Am 1997 No 61, Sch 1 [16]; 1997 No 145, Sch 1 [11] [12].
368 What is the quorum for a meeting?
(1) The quorum for a meeting of the council is a majority of the councillors of the council who hold office for the time being and are not suspended from office.(2) This section does not apply if the quorum is required to be determined in accordance with directions of the Minister in a performance improvement order issued in respect of the council.s 368: Am 2013 No 44, Sch 1 [22].
369 Who presides at meetings of the council?
(1) The mayor or, at the request of or in the absence of the mayor, the deputy mayor (if any) presides at meetings of the council.(2) If the mayor and the deputy mayor (if any) are absent, a councillor elected to chair the meeting by the councillors present presides at a meeting of the council.
370 What are the voting entitlements of councillors?
(1) Each councillor is entitled to one vote.(2) However, the person presiding at a meeting of the council has, in the event of an equality of votes, a second or casting vote.
370A Powers of Minister in relation to meetings
(1) The Minister may, conditionally or unconditionally, allow a councillor or a member of a council committee who has a pecuniary interest in a matter with which the council is concerned to be present at a meeting of the council or committee, to take part in the consideration or discussion of the matter and to vote on the matter if the Minister is of the opinion—(a) that the number of councillors prevented from voting would be so great a proportion of the whole as to impede the transaction of business, or(b) that it is in the interests of the electors for the area to do so.(2) A councillor or member of a council committee who attends a meeting in accordance with this section is not, for that reason only, taken to have engaged in misconduct within the meaning of Division 3 of Part 1 of Chapter 14.s 370A: Ins 2016 No 38, Sch 1 [28].
371 What constitutes a decision of the council?
A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council.
372 Rescinding or altering resolutions
(1) A resolution passed by a council may not be altered or rescinded except by a motion to that effect of which notice has been duly given in accordance with the council’s code of meeting practice.(2) If notice of motion to rescind a resolution is given at the meeting at which the resolution is carried, the resolution must not be carried into effect until the motion of rescission has been dealt with.(3) If a motion has been negatived by a council, a motion having the same effect must not be considered unless notice of it has been duly given in accordance with the council’s code of meeting practice.(4) A notice of motion to alter or rescind a resolution, and a notice of motion which has the same effect as a motion which has been negatived by the council, must be signed by 3 councillors if less than 3 months has elapsed since the resolution was passed, or the motion was negatived, as the case may be.(5) If a motion to alter or rescind a resolution has been negatived, or if a motion which has the same effect as a previously negatived motion, is negatived, no similar motion may be brought forward within 3 months. This subsection may not be evaded by substituting a motion differently worded, but in principle the same.(6) A motion to which this section applies may be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.(7) The provisions of this section concerning negatived motions do not apply to motions of adjournment.s 372: Am 2004 No 73, Sch 3 [3] [4]; 2016 No 38, Sch 1 [29].
373 Committee of council
A council may resolve itself into a committee to consider any matter before the council.
374 Certain circumstances do not invalidate council decisions
Proceedings at a meeting of a council or a council committee are not invalidated because of—(a) a vacancy in a civic office, or(b) a failure to give notice of the meeting to any councillor or committee member, or(c) any defect in the election or appointment of a councillor or committee member, or(d) a failure of a councillor or a committee member to disclose a pecuniary interest, or to refrain from the consideration or discussion of, or vote on, the relevant matter, at a council or committee meeting in accordance with the council’s code of conduct, or(e) a failure to comply with the code of meeting practice.s 374: Am 2000 No 53, Sch 1.15 [11]; 2016 No 38, Sch 1 [30].
375 Minutes
(1) The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council.(2) The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting.
375A Recording of voting on planning matters
(1) In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979—(a) including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but(b) not including the making of an order under Division 2A of Part 6 of that Act.(2) The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.(3) For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.(4) Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.(5) This section extends to a meeting that is closed to the public.s 375A: Ins 2008 No 44, Sch 1 [3].
376 Attendance of general manager at meetings
(1) The general manager is entitled to attend, but not to vote at, a meeting of the council or a meeting of a committee of the council of which all the members are councillors.(2) The general manager is entitled to attend a meeting of any other committee of the council and may, if a member of the committee, exercise a vote.(3) However, the general manager may be excluded from a meeting of the council or a committee while the council or committee deals with a matter relating to the standard of performance of the general manager or the terms of the employment of the general manager.
Part 3 Delegation of functions
377 General power of the council to delegate
(1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following—(a) the appointment of a general manager,(b) the making of a rate,(c) a determination under section 549 as to the levying of a rate,(d) the making of a charge,(e) the fixing of a fee,(f) the borrowing of money,(g) the voting of money for expenditure on its works, services or operations,(h) the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment),(i) the acceptance of tenders to provide services currently provided by members of staff of the council,(j) the adoption of an operational plan under section 405,(k) the adoption of a financial statement included in an annual financial report,(l) a decision to classify or reclassify public land under Division 1 of Part 2 of Chapter 6,(m) the fixing of an amount or rate for the carrying out by the council of work on private land,(n) the decision to carry out work on private land for an amount that is less than the amount or rate fixed by the council for the carrying out of any such work,(o) the review of a determination made by the council, and not by a delegate of the council, of an application for approval or an application that may be reviewed under section 82A of the Environmental Planning and Assessment Act 1979,(p) the power of the council to authorise the use of reasonable force for the purpose of gaining entry to premises under section 194,(q) a decision under section 356 to contribute money or otherwise grant financial assistance to persons,(r) a decision under section 234 to grant leave of absence to the holder of a civic office,(s) the making of an application, or the giving of a notice, to the Governor or Minister,(t) this power of delegation,(u) any function under this or any other Act that is expressly required to be exercised by resolution of the council.(1A) Despite subsection (1), a council may delegate its functions relating to the granting of financial assistance if—(a) the financial assistance is part of a specified program, and(b) the program is included in the council’s draft operational plan for the year in which the financial assistance is proposed to be given, and(c) the program’s proposed budget for that year does not exceed 5 per cent of the council’s proposed income from the ordinary rates levied for that year, and(d) the program applies uniformly to all persons within the council’s area or to a significant proportion of all the persons within the council’s area.(2) A council may, by resolution, sub-delegate to the general manager or any other person or body (not including another employee of the council) any function delegated to the council by the Departmental Chief Executive except as provided by the instrument of delegation to the council.(3) A council may delegate functions to a joint organisation only with the approval, by resolution, of the board of the joint organisation.s 377: Am 1