LOCAL GOVERNMENT ACT 1993 - As at 12 November 2009 - Act 30 of 1993 TABLE OF PROVISIONS TABLE OF PROVISIONS CHAPTER 1 - PRELIMINARY ____ 1. Name of Act 2. Commencement 3. Definitions 4. Does this Act bind the Crown? 5. To what parts of the State does this Act apply? 6. Notes in the text CHAPTER 2 - WHAT ARE THE PURPOSES OF THIS ACT? ____ 7. What are the purposes of this Act? ____ CHAPTER 3 - WHAT IS A COUNCIL’S CHARTER? ____ 8. The council’s charter CHAPTER 4 - HOW CAN THE COMMUNITY INFLUENCE WHAT A COUNCIL DOES? ____ PART 1 - OPEN MEETINGS 9. Public notice of meetings 10. Who is entitled to attend meetings? 10A. Which parts of a meeting can be closed to the public? 10B. Further limitations relating to closure of parts of meetings to public 10C. Notice of likelihood of closure not required in urgent cases 10D. Grounds for closing part of meeting to be specified 10E. (Repealed) 11. Public access to correspondence and reports PART 2 - ACCESS TO INFORMATION 12. What information is publicly available? 12A. Restriction of access to information 12B. Copies of documents 13. Retention and preservation of records PART 3 - EXPRESSIONS OF COMMUNITY OPINION Division 1 - Council polls 14. Council polls Division 2 - Constitutional referendums 15. What is a constitutional referendum? 16. What matters must be dealt with at a constitutional referendum? 17. What is the effect of a constitutional referendum? 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? 19. Day for taking council poll or constitutional referendum 20. When is a question at a council poll or constitutional referendum carried? ____ CHAPTER 5 - WHAT ARE A COUNCIL’S FUNCTIONS? ____ 21. Functions under this Act 22. Other functions 23. Supplementary, incidental and consequential functions 23A. Director-General’s guidelines ____ CHAPTER 6 - WHAT ARE THE SERVICE FUNCTIONS OF COUNCILS? ____ PART 1 - GENERAL 24. Provision of goods, services and facilities and carrying out of activities PART 2 - PUBLIC LAND ____ Division 1 - Classification and reclassification of public land 25. All public land must be classified 26. What are the classifications? 27. How are the classifications made? 28. Forwarding of planning proposals to Minister for Planning 29. Public hearing into reclassification 30. Reclassification of community land as operational 31. Classification of land acquired after 1 July 1993 32. Reclassification of land dedicated under sec 94 of the Environmental Planning and Assessment Act 1979 33. Reclassification of operational land as community land 34. Public notice to be given of classification or reclassification by council resolution Division 2 - Use and management of community land 35. What governs the use and management of community land? 36. Preparation of draft plans of management for community land 36A. Community land comprising the habitat of endangered species 36B. Community land comprising the habitat of threatened species 36C. Community land containing significant natural features 36D. Community land comprising area of cultural significance 36DA. Location of places and items of Aboriginal significance may be kept confidential 36E. Core objectives for management of community land categorised as a natural area 36F. Core objectives for management of community land categorised as a sportsground 36G. Core objectives for management of community land categorised as a park 36H. Core objectives for management of community land categorised as an area of cultural significance 36I. Core objectives for management of community land categorised as general community use 36J. Core objectives for management of community land categorised as bushland 36K. Core objectives for management of community land categorised as wetland 36L. Core objectives for management of community land categorised as an escarpment 36M. Core objectives for management of community land categorised as a watercourse 36N. Core objectives for management of community land categorised as foreshore 37. Requirements of plans of management for community land that is not owned by the council 38. Public notice of draft plans of management 39. Notice to owner of draft plan of management 40. Adoption of plans of management 40A. Public hearing in relation to proposed plans of management 41. Amendment of plans of management 42. Revocation and cessation of plans of management 43. Public availability of plans of management 44. Use of community land pending adoption of plan of management 45. What dealings can a council have in community land? 46. Leases, licences and other estates in respect of community land—generally 46A. Means of granting leases, licences and other estates 47. Leases, licences and other estates in respect of community land—terms greater than 5 years 47A. Leases, licences and other estates in respect of community land—terms of 5 years or less 47AA. Special provisions for leases, licences and other estates granted for filming projects 47B. Lease or licence in respect of natural area 47C. Sublease of community land 47D. Occupation of community land otherwise than by lease or licence 47E. Development of community land 47F. Dedication of community land as public road Division 3 - Miscellaneous 47G. Public hearings 48. Responsibility for certain public reserves 49. Public reserves and drainage reserves dedicated on subdivision, transfer or conveyance 50. Public garden and recreation space and drainage reserves provided for in subdivisions approved before 15.6.1964 51. Use of land held for drainage purposes 52. Effect of sec 28 of the Environmental Planning and Assessment Act 1979 53. The council’s land register 54. Certificate as to classification of land 54A. Community land to be described in common terms 54B. Transfer of private trust land under Trustees of Schools of Arts Enabling Act 1902 ____ PART 3 - RESTRAINTS AND QUALIFICATIONS THAT APPLY TO SERVICE FUNCTIONS Division 1 - Tendering 55. What are the requirements for tendering? 55A. Extended operation of section 55 to council-related entities Division 2 - Water supply, sewerage and stormwater drainage works and facilities 56. Application of Division 57. Construction of works 58. Handing over of works 59. Vesting of works 59A. Ownership of water supply, sewerage and stormwater drainage works 60. Council works for which the approval of the Minister for Land and Water Conservation is required 61. Directions of the Minister for Land and Water Conservation concerning certain works 62. Powers of Minister during emergencies 63. Effect of failure to comply with directions 64. Construction of works for developers 65. Powers of Minister for Land and Water Conservation—entry on to land and other powers 66. Appointment of administrator Division 3 - Private works 67. Private works Division 4 - (Repealed) None CHAPTER 7 - WHAT ARE THE REGULATORY FUNCTIONS OF COUNCILS? ____ PART 1 - APPROVALS Division 1 - What activities require approval? 68. What activities, generally, require the approval of the council? 68A. Meaning of “operate a system of sewage management” Division 2 - Crown activities 69. Crown exemption from approval to do things incidental to erection or demolition of building 70, 71. (Repealed) 72. Determination of applications by the Crown 73. Effect of council’s failure to determine Crown application 74. Prohibition on appeals concerning Crown applications Division 3 - Making and determination of applications for approval—generally 75. Applications for approval 76. What may an application relate to? 77. Relevant regulations and local policies to be brought to notice of intending applicants 78. Who may make an application? 79. What is the form of application? 80. Is there an application fee? 81. What matters must accompany an application? 82. Objections to application of regulations and local policies 83. Ownership and use of plans and specifications 84. Acknowledgment of application 85. Rejection of unclear or illegible applications 86. Request for more information 87. Amendment of applications 88. Withdrawal of applications 89. Matters for consideration 90. Concurrence 91. Giving effect to concurrence 92. Approval where an accreditation is in force 93. Certification by qualified persons 94. Determination of application 95. “Deferred commencement” approval 96. Staged approval 97. Conditions concerning security 98. Other conditions 99. Notice to applicant of determination of application 100. Review of determination 101. Date from which approval operates 102. Insurance for residential building work 102A. Evidence of insurance-related matters 103. When does an approval lapse? 104. (Repealed) 105. Circumstances in which approval is taken to have been refused 106. Can approvals be amended? 107. Can approvals be extended or renewed? 107A. Special provision—renewal of approvals relating to operation of sewage management systems 108. Can approvals be revoked or modified? 109. In what circumstances can an approval be revoked or modified? 110. Notice to be given of proposed revocation or modification 111. Application of secs 108, 109 and 110 to the Crown 112. Entitlement to compensation 113. Record of approvals Division 4 - Approvals for filming 114. What is the purpose of this Division? 115. Applications for approvals for filming 116. Form of, and security deposits, bonds, fees and charges for, filming proposal 117. Acknowledgment of application and notification of fees 118. What matters must accompany a filming proposal? 119. Filming protocol to be brought to attention of intending applicants 119A. Amendment and withdrawal of applications 119B. Application for approvals under Division 3 119C. Application for approval other than under Division 3 119CA. Presumption in favour of grant of approval 119D. Applicable filming protocol 119E. Advertising or notification of applications made in filming proposal 119F. Application of this Division Division 5 - Accreditation of components, processes and designs 120. Application for accreditation 121. Determination of application 122. Revocation of accreditation 123. Councils to be informed of accreditation and revocation 123A. Application for extension or renewal of accreditation 123B. Acceptance of accreditation by others ____ PART 2 - ORDERS Division 1 - Giving of orders 124. What orders may be given, in what circumstances and to whom? 125. Abatement of public nuisances 126. Giving orders to public authorities 127. Making of regulations for the purposes of this Division 128. Catchment districts 128A. Orders about removal or keeping of waste Division 2 - Procedures to be observed before giving orders 129. Circumstances in which compliance with this Division is required 130. Effect of compliance with this Division 131. Criteria to be considered before order is given 131A. Orders that make or are likely to make residents homeless 132. Notice to be given of proposed order 133. Making of representations 134. Hearing and consideration of representations 135. Procedure after hearing and consideration of representations Division 3 - Orders generally 136. Reasons for orders to be given 137. Period for compliance with order 138. Notice of right to appeal against order 138A. Approval or consent not required to comply with order 139. Order may specify standards and work that will satisfy those standards 140. Compliance with order referred to in sec 139 (2) 141. Council’s response to submission of particulars of work by owner 142. Orders affecting heritage items 143. Combined orders 144. Giving and taking effect of orders 145. Orders may be given to two or more persons jointly 146. Notice in respect of land or building owned or occupied by more than one person 147. Compliance with orders by occupiers or managers 148. Occupier of land may be required to permit owner to carry out work 149–151. (Repealed) 152. Modification of orders 153. Revocation of orders 154. The Minister may exercise any function concerning an order that a council may exercise 155. Effect of inconsistency between council’s order and Minister’s order 156. Minister may revoke or modify a council’s order 157. Limitation on Minister’s orders ____ PART 3 - ADOPTION OF LOCAL POLICIES CONCERNING APPROVALS AND ORDERS 158. Preparation of draft local policy for approvals 159. Preparation of draft local policy for orders 160. Public notice and exhibition of draft local policy 161. Adoption of draft local policy 162. Director-General’s consent required to exemption from necessity for approval 163. Effect of inconsistency between council’s local policy and this Act or the regulations 164. Local policy not to be more onerous than this Act or the regulations 165. Amendment and revocation of local policy 166. Public notice of adoption of local policy 167. Public availability of local policy PART 4 - (Repealed) None PART 5 - APPEALS Division 1 - Approvals and orders 176. Appeal by an applicant concerning an approval 177. Appeal by an applicant as to whether a “deferred commencement” approval operates 178. Appeal against the revocation or modification of an approval 179. Awarding of compensation concerning approvals 180. Appeals concerning orders 181. Awarding of compensation concerning orders 182. Appeals concerning particulars of work submitted to councils 183. Effect of appeal on order 184. Court’s powers not limited by this Division Division 2 - (Repealed) None CHAPTER 8 - WHAT ANCILLARY FUNCTIONS DOES A COUNCIL HAVE? ____ PART 1 - ACQUISITION OF LAND 186. For what purposes may a council acquire land? 187. How does a council acquire land? 188. Restriction on compulsory acquisition of land for re-sale 189. No restriction as to area 190. Special provisions relating to land containing minerals PART 2 - ENTRY ON TO LAND AND OTHER POWERS 191. Power of entry 191A. Power of entry—construction and maintenance of water supply, sewerage and stormwater drainage works 192. Inspections and investigations 193. Notice of entry 194. Use of force 195. Notification of use of force or urgent entry 196. Care to be taken 197. Recovery of cost of entry and inspection 198. Compensation 199. Authority to enter premises 200. In what circumstances can entry be made to a residence? 201. Search warrants 202, 203. (Repealed) CHAPTER 9 - HOW ARE COUNCILS ESTABLISHED? ____ PART 1 - AREAS Division 1 - How are areas constituted and dissolved? 204. Constitution of areas 205. Land taken to be included in an area 206. Constitution of cities 207. Names of areas 208. Effect of changing name 209. (Repealed) 210. Division of areas into wards 210A. Consultation, public notice and exhibition of proposals regarding ward boundaries 211. Ward boundaries 212. Dissolution of areas 213. Facilitating provisions of proclamations Division 2 - What must be done before areas can be constituted? ____ 214. Exercise of functions under sec 204 215. Who may initiate a proposal? 216. Public notice to be given of a proposal 217. Making of representations 218. Referral of proposal for examination and report Division 2A - How are areas amalgamated or their boundaries altered? 218A. Amalgamation of areas 218B. Alteration of boundaries of areas 218C. Facilitating provisions of proclamations 218CA. Maintenance of staff numbers in rural centres Division 2B - What must be done before areas can be amalgamated or their boundaries altered? 218D. Exercise of functions under secs 218A and 218B 218E. Who may initiate a proposal? 218F. Referral of proposal for examination and report Division 2C - (Repealed) None PART 2 - COUNCILS Division 1 - Constitution 219. Constitution of councils 220. Legal status of a council 221. What is a council’s name? 222. Who comprise the governing body? 223. What is the role of the governing body? 224. How many councillors does a council have? 224A. Approval to reduce number of councillors Division 2 - The mayor 225. The mayor 226. What is the role of the mayor? 227. Who elects the mayor? 228. How is it decided that the mayor be elected by the electors? 229. Can the decision be changed? 230. For what period is the mayor elected? 231. Deputy mayor Division 3 - The councillors 232. What is the role of a councillor? 233. For what period is a councillor elected? 234. When does a vacancy occur in a civic office? Division 4 - Local Government Remuneration Tribunal 235. Local Government Remuneration Tribunal 236. Assessors 237. Provisions relating to the appointment, term of office and remuneration of the Remuneration Tribunal and assessors 238. Functions of the Remuneration Tribunal 239. Categorisation of councils and mayoral offices 240. How are the categories to be determined? 241. Determination of fees 242. Special determinations 243. Inquiries 244. Reports of the Remuneration Tribunal 245. Publication and tabling of reports 246. Effect of determination 247. Assistance for the Remuneration Tribunal Division 5 - What fees, expenses and facilities may be paid or provided to councillors? 248. Fixing and payment of annual fees for councillors 248A. Annual fees or other remuneration not to be paid during period of suspension 249. Fixing and payment of annual fees for the mayor 250. At what intervals are fees to be paid? 251. What is the consequence of paying fees? 252. Payment of expenses and provision of facilities 253. Requirements before policy concerning expenses and facilities can be adopted or amended 254. Decision to be made in open meeting 254A. Circumstances in which annual fees may be withheld Division 6 - Appointment of administrator 255. Governor may dismiss mayor and councillors 256. Governor may appoint administrator or order fresh election 257. Declaration of council as non-functioning 258. The administrator 259. Temporary exercise of the council’s functions PART 3 - LOCAL GOVERNMENT BOUNDARIES COMMISSION 260. Constitution of the Boundaries Commission 261. Membership of Boundaries Commission 262. How is a panel to be constituted for the purposes of making an appointment as a commissioner? 263. Functions of the Boundaries Commission 264. Can a person be represented in proceedings before the Boundaries Commission? 265. Boundaries Commission may conduct survey or poll CHAPTER 10 - HOW ARE PEOPLE ELECTED TO CIVIC OFFICE? ____ PART 1 - WHO MAY VOTE? 266. Who has the right to be enrolled as an elector? 267. Who has the right to vote? 268. One vote per elector 269. Who is a “resident” for the purposes of this Part? 270. Who is an “owner of rateable land” for the purposes of this Part? 271. Who is an “occupier” or “ratepaying lessee” for the purposes of this Part? 272. Competing claimants 273. Application of Part to area not divided into wards PART 2 - WHO MAY BE ELECTED? 274. What are the qualifications for civic office? 275. Who is disqualified from holding civic office? 276. What is the effect of disqualification? 277. May the holder of a civic office be re-elected? PART 3 - WHAT IS THE SYSTEM OF ELECTION? 278. Election of councillors for an area not divided into wards 279. Alternative methods for election of councillors for an area divided into wards 280. Ward election of councillors—method 1 281. Election of councillors partly by wards, partly by area—method 2 282. Election of mayor 283. Double candidature 284. Voting system for election of the mayor by all the electors of the area 285. Voting system for election of councillors 286. Is voting compulsory? PART 4 - WHEN ARE ELECTIONS HELD? 287. When is an ordinary election of councillors held? 288. Delayed elections of councillors 289. When is an election of a mayor by the electors to be held? 290. When is an election of a mayor by the councillors to be held? PART 5 - HOW ARE CASUAL VACANCIES FILLED? 291. By-elections 292. When is a by-election to be held? 293. Delayed by-elections 294. Dispensing with by-elections 294A. Casual vacancy not to be filled where councillor numbers reduced 295. Casual vacancy in office of mayor elected by the councillors PART 6 - HOW ARE ELECTIONS CONDUCTED? Division 1 - The role of the Electoral Commissioner 296. Elections to be conducted by the Electoral Commissioner 297. Delegation of functions by the Electoral Commissioner Division 2 - Electoral rolls ____ 298. Residential roll 299. Non-residential roll 300. Roll of occupiers and ratepaying lessees 301. Roll of electors 302. Public inspection of roll of electors 303. Making of claims for inclusion in the roll 304. Enrolment if qualified in more than one respect 305. Can an elector vote if his or her name is not on the roll of electors? Division 3 - Nominations and election 306. Nominations 307. Nomination where name omitted from roll 308. Candidate information sheets 308A. Grouping of candidates 308B. Group voting—recording of votes 308C. Group voting—marking of ballot-papers 308D. Group voting—regulations 309. Contested elections 310. Conduct of contested elections 310A. Postal votes 311. Uncontested elections Division 4 - Where residents fail to vote 312. Offence 313. List of residents failing to vote 314. Penalty notice to be issued for failure to vote 315. Evidence in list of non-voters Division 5 - Miscellaneous 316. Position on ballot-paper 317. Validity of elections 318. Lapsed or void election PART 6A - POSTPONEMENT OF ELECTIONS 318A. Definition 318B. Postponement of elections 318C. Revocation of postponement PART 7 - POLITICAL PARTIES 319. Local Government Register of Political Parties 320. Registration of political parties 321. Party endorsement on ballot-papers 322. Independent candidate on ballot-papers 323. Printing of political party name on ballot-papers 324. Form of political party name on ballot-papers PART 8 - (Repealed) None PART 8A - POLITICAL DONATIONS 328A. General manager to keep register of political donation disclosures 328B. Reference by general manager to Director-General of political donation matters PART 9 - DISMISSAL FROM CIVIC OFFICE 329. Can the holder of a civic office be dismissed? 330. Appeals to Supreme Court against dismissal order 331. When does an order of dismissal take effect? CHAPTER 11 - HOW ARE COUNCILS STAFFED? ____ PART 1 - ORGANISATION STRUCTURE 332. Determination of structure 333. Re-determination of structure PART 2 - THE GENERAL MANAGER AND OTHER SENIOR STAFF 334. Appointment of general manager 335. Functions of general manager 336. Filling of vacancy in position of general manager 337. Council to be consulted as to appointment and dismissal of senior staff 338. Nature of contracts for senior staff 339. Annual reporting of contracts for senior staff 340. Industrial arbitration excluded 341. Duty to report bankruptcy PART 3 - THE PUBLIC OFFICER 342. Appointment of the public officer 343. Functions of the public officer PART 4 - EQUAL EMPLOYMENT OPPORTUNITY 344. Objects 345. Preparation and implementation of EEO management plans 346. Inconsistencies with the Anti-Discrimination Act 1977 347. References PART 5 - OTHER PROVISIONS CONCERNING STAFF 348. Advertising of staff positions 349. Appointments to be on merit 350. Appointments to which secs 348 and 349 do not apply 351. Temporary appointments 352. Independence of staff for certain purposes 353. Other work 354. Restriction on appointment of a former mayor or councillor 354A. Ministerial approval for certain termination payments to senior staff PART 6 - ARRANGEMENTS FOR COUNCIL STAFF AFFECTED BY THE CONSTITUTION, AMALGAMATION OR ALTERATION OF COUNCIL AREAS 354B. Definitions 354C. No forced redundancy of affected staff members during proposal period 354D. Preservation of entitlements of staff members 354E. Certain increases or decreases in staff entitlements during proposal period not binding on transferee council without approval 354F. No forced redundancy of non-senior staff members for 3 years after transfer 354G. Lateral transfer of non-senior staff members 354H. External advertising not required in certain circumstances 354I. Limitations on transfer of work base of non-senior staff CHAPTER 12 - HOW DO COUNCILS OPERATE? ____ PART 1 - GENERAL 355. How does a council exercise its functions? 356. Can a council financially assist others? 357. Can a council exercise its functions only within its area? 358. Restrictions on formation of corporations and other entities 359. Can a council act as an agent? ____ PART 2 - HOW ARE DECISIONS MADE? Division 1 - Code of meeting practice 360. Conduct of meetings of councils and committees 361. Preparation, public notice and exhibition of draft code 362. Adoption of draft code 363. Amendment of the code 364. Public availability of the code Division 2 - Other provisions concerning council meetings 365. How often does the council meet? 366. Calling of extraordinary meeting on request by councillors 367. Notice of meetings 368. What is the quorum for a meeting? 369. Who presides at meetings of the council? 370. What are the voting entitlements of councillors? 371. What constitutes a decision of the council? 372. Rescinding or altering resolutions 373. Committee of council 374. Certain circumstances do not invalidate council decisions 375. Minutes 375A. Recording of voting on planning matters 376. Attendance of general manager at meetings PART 3 - DELEGATION OF FUNCTIONS 377. General power of the council to delegate 378. Delegations by the general manager 379. Delegation of regulatory functions 380. Review of delegations 381. Exercise of functions conferred or imposed on council employees under other Acts PART 4 - INSURANCE 382. Insurance against liability PART 5 - COUNTY COUNCILS 383. Proposal to establish or dissolve a county council or amend its constitution 384. Public notice to be given of a proposal 385. Making of representations 386. Minister’s recommendation concerning the proposal 387. Formation of county councils 388. Legal status of county councils 389. What is a county council’s name? 390. Who comprise the governing body? 391. The chairperson 391A. What are the functions of the chairperson? 392. Vacancy in office of member 393. Area of operations of county council 394. Functions of county council 395. General manager of county council 396. How often does a county council meet? 397. Amendment and dissolution of county councils 398. Facilitating provisions of proclamations 399. Making of financial contributions by constituent councils 400. Application of Act to county councils 400AA. Special provisions relating to Cudgegong (Abattoir) County Council 400A. (Repealed) PART 6 - PUBLIC-PRIVATE PARTNERSHIPS Division 1 - Preliminary 400B. Definitions 400C. Guidelines to be followed by councils in relation to public-private partnerships 400D. Ancillary provisions relating to PPP guidelines Division 2 - Restrictions relating to public-private partnerships 400E. General requirements 400F. Council to provide assessment of PPP project to Director-General 400G. Minister may require PPP project to be referred to Project Review Committee 400H. Director-General may require council to provide assessment of varied PPP project 400I. Review of PPP project by Project Review Committee Division 3 - Local Government Project Review Committee 400J. Establishment and constitution of Project Review Committee Division 4 - Miscellaneous provisions 400K. Compensation not payable 400L. Decision by council to enter into public-private partnership 400M. No contracting out 400N. Application of Part CHAPTER 13 - HOW ARE COUNCILS MADE ACCOUNTABLE FOR THEIR ACTIONS? ____ PART 1 - PRELIMINARY 401. Application of Chapter PART 2 - STRATEGIC PLANNING 402. Community strategic plan 403. Resourcing strategy 404. Delivery program 405. Operational plan 406. Integrated planning and reporting guidelines 407. (Repealed) PART 3 - FINANCIAL MANAGEMENT Division 1 - Funds 408. The council’s funds 409. The consolidated fund 410. Alternative use of money raised by special rates or charges 411. The trust fund Division 2 - Accounting records, financial reports and auditing 412. Accounting records 413. Preparation of financial reports 414. (Repealed) 415. Auditing of financial reports 416. Time for preparation and auditing of financial reports 417. Auditor’s reports 418. Public notice to be given of presentation of financial reports 419. Presentation of the council’s financial reports 420. Submissions on financial reports and auditor’s reports 421. Interim reports Division 3 - Auditors 422. Appointment of auditors 423. Disqualified persons 424. Auditor’s term of office 425. Auditor-General to be auditor in certain instances 426. Auditor may exercise general power of inspecting accounting records 427. Powers of auditor PART 4 - ANNUAL REPORTS 428. Annual reports 428A. State of the environment reports PART 5 - INQUIRIES, REVIEWS AND SURCHARGING Division 1 - Inquiries and reviews 429. Minister or Director-General may require councils to provide information 429A. Complaints about councils, councillors, delegates and staff 430. Director-General may authorise investigation of councils etc 431. Powers of Departmental representatives—generally 432. Entry on to premises 433. Report of investigation 434. Council’s response to report 434A. Council’s response to Ombudsman’s report Division 2 - Surcharging 435. Surcharging by Departmental representative 436. Procedure for surcharging 437. Applications for review by Administrative Decisions Tribunal 438. Recovery of amount surcharged CHAPTER 14 - HONESTY AND DISCLOSURE OF INTERESTS ____ PART 1 - CONDUCT Division 1 - Conduct generally 439. Conduct of councillors, staff and delegates 440. Codes of conduct Division 2 - Serious corrupt conduct 440A. Definition of “serious corrupt conduct” 440B. Dismissal from civic office for serious corrupt conduct 440C. Temporary suspension from civic office for serious corrupt conduct 440D. Temporary suspension of staff in connection with serious corrupt conduct 440E. Application of Division Division 3 - Misbehaviour 440F. Definitions 440G. Formal censure of councillor for misbehaviour 440H. How is the process for suspension of a councillor for misbehaviour initiated? 440I. What are the grounds on which a councillor may be suspended? 440J. How are requests and reports dealt with? 440K. Suspension by Director-General for misbehaviour 440L. When does an order of suspension take effect? 440M. Appeals against suspension 440N. Referral of matters to Pecuniary Interest and Disciplinary Tribunal 440O. Are there alternatives to suspension or referral to Pecuniary Interest and Disciplinary Tribunal? 440P. Expenses to be borne by council 440Q. Reasons to be given PART 2 - DUTIES OF DISCLOSURE Division 1 - Preliminary 441. Who are “designated persons”? 442. What is a “pecuniary interest”? 443. Who has a pecuniary interest? 444. What disclosures must be made by a councillor? 445. What disclosures must be made by a designated person? 446. What disclosures must be made by a member of a council committee? 447. What disclosures must be made by council advisers? 448. What interests do not have to be disclosed? ____ Division 2 - Disclosure of interests in written returns 449. Returns disclosing interests of councillors and designated persons 450. (Repealed) 450A. Register and tabling of returns Division 3 - Disclosure of pecuniary interests at meetings 451. Disclosure and presence in meetings 452. (Repealed) 453. Disclosures to be recorded 454. General disclosure 455. (Repealed) 456. Disclosure by adviser 457. Circumstances in which secs 451 and 456 are not breached 458. Powers of Minister in relation to meetings Division 4 - Disclosure of pecuniary interests in council dealings 459. Disclosure of pecuniary interests when dealing with council matters PART 3 - COMPLAINTS CONCERNING NON-DISCLOSURE ____ Division 1 - Making and investigation of complaints 460. Complaints concerning failure to disclose pecuniary interests 461. Director-General may require further information 462. Investigation of complaints 463. Decision not to investigate a complaint 464. Referral and investigation of complaints by other authorities 465. Pecuniary Interest and Disciplinary Tribunal to be notified of investigations 466. Persons to be notified of complaint 467. Reports of investigation of complaints by authorities 468. Presentation of reports to Pecuniary Interest and Disciplinary Tribunal Division 2 - Proceedings before the Pecuniary Interest and Disciplinary Tribunal—pecuniary interest matters 469. Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a complaint 470. Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing Division 3 - Proceedings before the Pecuniary Interest and Disciplinary Tribunal—misbehaviour matters 470A. Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour 470B. Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing Division 4 - Proceedings before the Pecuniary Interest and Disciplinary Tribunal—general provisions 471. General conduct of proceedings 472. Private and public hearings 473. Representation at hearings 474. Presentation of cases at hearings 475. Power to summon witnesses and take evidence at hearings 476. Power to obtain documents 477. Privilege concerning answers and documents 478. Additional complaints 479. Adjournments 480. Release of information 481. Witnesses’ expenses 482. Decision of Pecuniary Interest and Disciplinary Tribunal—pecuniary interest matters 482A. Decision of Pecuniary Interest and Disciplinary Tribunal—misbehaviour matters 483. Standard of proof 484. Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions 485. Appeals to Supreme Court 486. Referral of matters by Pecuniary Interest and Disciplinary Tribunal 486A. Contempt of Pecuniary Interest and Disciplinary Tribunal ____ PART 4 - LOCAL GOVERNMENT PECUNIARY INTEREST AND DISCIPLINARY TRIBUNAL 487. Establishment of Pecuniary Interest and Disciplinary Tribunal 488. Constitution of Pecuniary Interest and Disciplinary Tribunal 489. Functions of Pecuniary Interest and Disciplinary Tribunal 490. Annual report PART 5 - MISCELLANEOUS 490A. Acts of disorder 490B. Certain regulations not affected CHAPTER 15 - HOW ARE COUNCILS FINANCED? ____ PART 1 - AN OVERVIEW OF RATES AND CHARGES 491. Some sources of a council’s income 492. What are the types of rates? 493. Categories of ordinary rates and categories of land 494. Ordinary rates must be made and levied annually 495. Making and levying of special rates 495A. Strata lots and company titles taken to be separate parcels of land for annual charges 496. Making and levying of annual charges for domestic waste management services 496A. Making and levying of annual charges for stormwater management services 497. What is the structure of a rate? 498. The ad valorem amount 499. The base amount 500. Limit on revenue that can be raised from base amount 501. For what services can a council impose an annual charge? 502. Charges for actual use 503. What is the relationship between rates and charges? 504. Domestic waste management services PART 2 - LIMIT OF ANNUAL INCOME FROM RATES AND CHARGES 505. Application of Part 506. Variation of general income 507. Variation of annual charges for domestic waste management services 508. Orders under secs 506 and 507 508A. Special variation over a period of years 509. Maximum general income for a year 510. Maximum annual charge for domestic waste management services 510A. Maximum annual charge for stormwater management services 511. Catching up of shortfall in general income 511A. Catching up of income lost due to reductions in valuation 512. Effect of contravening section 509, 510, 510A, 511 or 511A 513. Estimates of increases and decreases in value for purposes of notional rate income ____ PART 3 - ORDINARY RATES 514. Categorisation of land for purposes of ordinary rates 515. Categorisation as farmland 516. Categorisation as residential 517. Categorisation as mining 518. Categorisation as business 518A. Strata lots and company titles taken to be separate parcels of land for categorisation 518B. Mixed development land 519. How is vacant land to be categorised? 520. Notice of declaration of category 521. When does the declaration of a category take effect? 522. When does the declaration of a category cease? 523. When are the declarations of categories reviewed? 524. Notice of change of category 525. Application for change of category 526. Appeal against declaration of category 527. Adjustment of rates following change in category 528. Rate may be the same or different for different categories 529. Rate may be the same or different within a category 530. (Repealed) 531. What provisions of this Part apply to the determination of sub-categories? PART 3A - CHARGES 531A. Adjustment of charges following change in category 531B. Aggregation of certain parcels subject to a charge PART 4 - MAKING OF RATES AND CHARGES 532. Publication of draft operational plan 533. Date by which a rate or charge must be made 534. Rate or charge to be made for a specified year 535. Rate or charge to be made by resolution 536. What criteria are relevant in determining the base amount? 537. Form of resolution specifying base amounts of rates 538. Form of resolution for special rate 539. What criteria are relevant in determining the amount of a charge? 540. Form of charge 541. Differing amounts of a charge 542. Minimum amounts of charges 543. Each form of rate and each charge to have its own name 544. Inclusion of names in rates and charges notices 545. Curing of irregularities ____ PART 5 - LEVYING OF RATES AND CHARGES Division 1 - General 546. How is a rate or charge levied? 547. Method of rating dwellings under company title 548. Minimum amounts 548A. Aggregation of values of certain parcels subject to rates containing base amounts 549. Reduction of rates containing base amounts if levied on vacant land 550. Charge of rates and charges on land Division 2 - Special rates and charges relating to water supply, sewerage and drainage 551. Application of Division 2 552. What land may be subject to a water supply special rate or charge? 553. Time at which land becomes subject to special rate or charge 553A. Special rates and charges not payable in relation to land provided with private water supply or sewerage PART 6 - WHAT LAND IS RATEABLE? 554. What land is rateable? 555. What land is exempt from all rates? 556. What land is exempt from all rates, other than water supply special rates and sewerage special rates? 557. What land is exempt from water supply special rates and sewerage special rates? 558. What land and bodies may be exempted from water supply special rates and sewerage special rates? 559. Determination as to whether a body is a public benevolent institution or public charity PART 7 - PAYMENT OF RATES AND CHARGES 560. Who is liable to pay rates? 561. Who is liable to pay charges? 562. Payment of rates and annual charges 563. Discount for prompt payment in full 564. Agreement as to periodical payment of rates and charges 565. Capital contributions instead of payment of special rates or charges 566. Accrual of interest on overdue rates and charges 567. Writing off of accrued interest 568. Application of payments 569. Liability of the occupier 570. Transfer of land in payment of rates or charges 571. What happens if land is transferred? 572. What happens if the rateability of land changes? 573. What happens if land is subdivided? 574. Appeal on question of whether land is rateable or subject to a charge PART 8 - CONCESSIONS Division 1 - Concessions for pensioners 575. Reductions for eligible pensioners 576. Application of this Division to postponed rates 577. Extension of concession to avoid hardship 578. When does an order under sec 577 take effect? 579. When and how is an application made for the purposes of this Division? 580. Variation by regulation of amounts of reductions 581. Reimbursement of councils by Parliament 582. Abandonment of pensioners rates and charges 583. Writing off of pensioners rates and charges 584. Ending of concession Division 2 - Other concessions ____ 585. Who may apply for postponement of rates? 586. Applications to be referred to Valuer-General 587. Attributable part of land value of land 588. Determination of attributable part of land value by Valuer-General 589. Redetermination of attributable part of land value 590. Use of determination of attributable part of land value 591. Postponement of rates 592. Interest on postponed rates 593. Paid rates to be refunded 594. Adjustment of rates 595. Rates to be written off after 5 years 596. Change of circumstances 597. Entitlement to postponement ceases 598. Redetermination on partial change of circumstances 599. When and how is an application made for the purposes of this Division? 600. Rebates in respect of certain land vested in public bodies 601. Hardship resulting from certain valuation changes PART 9 - MISCELLANEOUS MATTERS CONCERNING RATES AND CHARGES 602. Record of rates and charges 603. Certificate as to rates and charges 604. Notice of transfer of land 605. Expenses of tracing persons 606. Notice of granting of certain Crown leases 607. Writing off of rates, charges and accrued interest PART 10 - FEES Division 1 - Council fees—general 607A. Interpretation 608. Council fees for services 609. (Repealed) 610. Effect of other Acts Division 2 - Council fees for business activities 610A. Application of Division 610B. Fees to be determined in accordance with pricing methodologies Division 3 - Council fees for non-business activities 610C. Application of Division 610D. How does a council determine the amount of a fee for a service? 610E. Council may waive or reduce fees 610F. Public notice of fees Division 4 - Certain annual charges 611. Annual charge on rails, pipes etc 612. (Renumbered) PART 11 - GRANTS 613. Constitution of the Local Government Grants Commission 614. Membership of Grants Commission 615. What are the functions of the Grants Commission and the Minister under this Part? 616. How does the Grants Commission decide on its recommendations? 617. What information does the Minister have to provide? 618. What other functions does the Grants Commission have? 619. What happens to the money paid to the State under the Commonwealth Act? 620. Making of grants by the Minister PART 12 - LOANS 621. When and for what may a council borrow? 622. What form may a council borrowing take? 623. Security for borrowings 624. Are there any restrictions on a council borrowing? PART 13 - INVESTMENTS 625. How may councils invest? CHAPTER 16 - OFFENCES ____ PART 1 - GENERAL OFFENCES 626. Failure to obtain approval 627. Failure to comply with approval 628. Failure to comply with order PART 2 - PUBLIC PLACES 629. Injuring or removing plants, animals, rocks and soil in or from public place 630. Breaking glass and other matter 631. Damaging, defacing or polluting public bathing place 632. Acting contrary to notices erected by councils 633. Bathing (including nude bathing) and other water-based recreational activities 633A. Use of skateboards, roller blades and roller skates 633B. Part not to apply to National Park reserves 633C. Part not to affect roads and traffic functions under other Acts PART 3 - WATER, SEWERAGE AND STORMWATER DRAINAGE OFFENCES 634. Water, sewerage and stormwater drainage offences 635. Damage to council property 636. Tampering with meters and fittings 637. Waste or misuse of water 638. Discharge of prohibited matter into sewer or drain 639. Pollution of public water supply 640. Offences in catchment districts 641. (Repealed) PART 4 - STREET DRINKING 642. Confiscation of alcohol in alcohol-free zones 643. (Repealed) 644. Proposal for establishment of alcohol-free zone 644A. Public consultation on proposal to establish alcohol-free zone 644B. Establishment of alcohol-free zones 644C. Operation of alcohol-free zones 645. Suspension or cancellation 646. Guidelines for alcohol-free zones 647. (Repealed) 648. Other laws not affected 649. (Repealed) PART 5 - PARKING 650. Free parking areas 651. Liability of vehicle owner for certain offences PART 5A - IMMOBILISATION AND DETENTION OF VEHICLES 651A. Application of Part 651B. Immobilisation of vehicles 651C. Unlawful detention of vehicles PART 6 - OFFENCE RELATING TO CIVIC OFFICE 652. Acting in civic office while subject to disqualification PART 7 - (Repealed) None PART 8 - MISCELLANEOUS 659. Production of certificate of authority to enter premises 660. Obstruction 661. Failure to comply with certain directions 662. Occupier, manager or agent refusing to give name of owner 663. Owner refusing to give name of manager or occupier 664. Disclosure and misuse of information 665. False or misleading information 666. Wilful destruction of documents 667. Wilful destruction of notices and signs 668. Attempts 669. Penalties extended to persons causing offence 670. Notices and signs 671. Proof of lawful or reasonable excuse CHAPTER 17 - ENFORCEMENT ____ PART 1 - GENERAL Division 1 - Legal proceedings 672. What constitutes a breach of this Act for the purposes of this Part? 673. Remedy or restraint of breaches of this Act—the Minister, the Director- General and councils 674. Remedy or restraint of breaches of this Act—other persons 675. Time limit on proceedings questioning the validity of approvals 676. Functions of the Land and Environment Court 677. Compensation may be awarded against vexatious litigants 678. Failure to comply with order—carrying out of work by the council 679. Penalty notices for certain offences Division 2 - Other remedies 680. Demanding name of offender 681. Removal of offenders from community land 681A. Confiscation of recreational equipment PART 2 - PROCEEDINGS BY THE COUNCIL OR ITS EMPLOYEES Division 1 - General 682. Power to appear before local land boards 683. Authentication of documents 684. Laying of informations 685. Certain allegations in informations 686. Ownership of council property 687. Appearance in Local Court 688. Bankruptcy 689. Payment of expenses of employee 690. Other remedies 691. Proceedings for offences 691A, 692. (Repealed) 693. Time for bringing proceedings concerning electoral offences 694. Application of penalties 695. Suing for debts 696. Apportionment of expenses Division 2 - Evidence 697. Formal matters 698. Judicial notice of certain documents 699. Service of notices 700. Proof of ownership of, or leasehold estate in, land 701. Evidence as to whether a place is a public road 702. Offences on boundaries of areas 703. Minutes 704. Delineation of local government boundaries by reference to maps Division 3 - Notices by the council 705. What is public notice? 706. What happens after a council gives public notice? 707. Publication of notices in Gazette and newspaper 708. The Crown 709. Corporations 710. Service of notices on persons 711. Effect of service on successors in title Division 4 - Legal proceedings for the recovery of rates and charges 712. Special provisions with respect to the recovery of unpaid rates and charges Division 5 - Sale of land for unpaid rates and charges 713. Sale of land for unpaid rates and charges 714. Estates and interests of the Crown in land 715. Notice of proposal to sell land 716. Sale of land by public auction 717. Payment of purchase money 718. Application of purchase money 719. What if the purchase money is less than the amounts owing? 720. What if the purchase money is more than the amounts owing? 721. Apportionment of rates on subdivided land 722. Conveyance or transfer of the land 723. Land is conveyed free of certain interests 724. Special provisions concerning leases of land owned by the Crown 725. Transfers not invalid because of procedural irregularities 726. Registration of transfer of land under the Real Property Act 1900 PART 3 - PROCEEDINGS AGAINST COUNCILS, COUNCILLORS AND STAFF Division 1 - General 727. Service of documents 728. Suing for penalty 729. Proceedings alleging non-compliance with a procedural requirement 730. Compensation Division 2 - Liability 731. Liability of councillors, employees and other persons 732. Exemption from liability—accreditation and certification 733. Exemption from liability—flood liable land and land in coastal zone CHAPTER 18 - MISCELLANEOUS ____ PART 1 - GENERAL 734. Public hearings by a council 734A. Preliminary enquiries by Director-General 735. Notices to be given in writing 735A. Certificate as to notices 736. Proclamations 737. Correcting errors 738. Validity of proclamations 739. Protection of privacy 740. Public inquiries 740A. Ministerial committees 741. Exemption from taxes 742. Dispute resolution 743. Property in waste 744. Delegation of functions by the Minister 745. Delegation of functions by the Director-General 746. Authorised officers 747. Review of Act PART 2 - REGULATIONS 748. Regulations PART 3 - SAVINGS, TRANSITIONAL AND OTHER PROVISIONS 749. Savings, transitional and other provisions PART 4 - (Repealed) None SCHEDULE 1 SCHEDULE 2 SCHEDULE 3 SCHEDULE 4 SCHEDULE 5 SCHEDULE 6 SCHEDULE 6A SCHEDULE 7 SCHEDULE 8 SCHEDULE 9 SCHEDULE 99 Dictionary LOCAL GOVERNMENT ACT 1993 - LONG TITLE An Act to provide for local government in New South Wales. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 1This Chapter contains provisions which are helpful in understanding the Act as a whole, as well as some machinery provisions. LOCAL GOVERNMENT ACT 1993 - SECT 1 Name of Act 1 Name of Act This Act may be cited as the Local Government Act 1993. LOCAL GOVERNMENT ACT 1993 - SECT 2 Commencement 2 Commencement This Act commences on a day or days to be appointed by proclamation. LOCAL GOVERNMENT ACT 1993 - SECT 3 Definitions 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. Note: Expressions used in this Act (or in a particular provision of this Act) which are defined in the Interpretation Act 1987 have the meanings set out in that Act. LOCAL GOVERNMENT ACT 1993 - SECT 4 Does this Act bind the Crown? 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. 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 lands, reserves under Part 5 of the Crown Lands Act 1989 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 charges LOCAL GOVERNMENT ACT 1993 - SECT 5 To what parts of the State does this Act apply? 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 Western Lands Act 1901 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. LOCAL GOVERNMENT ACT 1993 - SECT 6 Notes in the text 6 Notes in the text Introductions to Chapters, notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 2This Chapter states the Parliament’s purposes in enacting this Act. Section 51 of the Constitution Act 1902 provides: (1) There shall continue to be a system of local government for the State under which duly elected or duly appointed local government bodies are constituted with responsibilities for acting for the better government of those parts of the State that are from time to time subject to that system of local government. (2) The manner in which local government bodies are constituted and the nature and extent of their powers, authorities, duties and functions shall be as determined by or in accordance with laws of the Legislature. (3) The reference in subsection (2) to laws of the Legislature shall be read as a reference to laws that have been enacted by the Legislature, whether before or after the commencement of this section, and that are for the time being in force. (4) For the purposes of this section, the Western Lands Commissioner, the Lord Howe Island Board, and an administrator with all or any of the functions of a local government body, shall be deemed to be local government bodies. The Chapter also aims to give an overview of the major elements in the system of local government in this State. It contains a diagram showing the way in which these elements relate to one another. LOCAL GOVERNMENT ACT 1993 - SECT 7 What are the purposes of this Act? 7 What are the purposes of this Act? The purposes of this Act are as follows: (a) to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales, (b) to regulate the relationships between the people and bodies comprising the system of local government in New South Wales, (c) to encourage and assist the effective participation of local communities in the affairs of local government, (d) to give councils: • the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public • the responsibility for administering some regulatory systems under this Act • a role in the management, improvement and development of the resources of their areas, (e) to require councils, councillors and council employees to have regard to the principles of ecologically sustainable development in carrying out their responsibilities. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 2[graphic] LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 3The charter contained in this Chapter comprises a set of principles that are to guide a council in the carrying out of its functions. A council may add other principles not inconsistent with those in the Chapter. LOCAL GOVERNMENT ACT 1993 - SECT 8 The council’s charter 8 The council’s charter (1) A council has the following charter: • to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively • to exercise community leadership • to exercise its functions in a manner that is consistent with and actively promotes the principles of multiculturalism • to promote and to provide and plan for the needs of children • to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development • to have regard to the long term and cumulative effects of its decisions • to bear in mind that it is the custodian and trustee of public assets and to effectively plan for, account for and manage the assets for which it is responsible • to engage in long-term strategic planning on behalf of the local community • to exercise its functions in a manner that is consistent with and promotes social justice principles of equity, access, participation and rights • to facilitate the involvement of councillors, members of the public, users of facilities and services and council staff in the development, improvement and co-ordination of local government • to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments and, when appropriate, by borrowings and grants • to keep the local community and the State government (and through it, the wider community) informed about its activities • to ensure that, in the exercise of its regulatory functions, it acts consistently and without bias, particularly where an activity of the council is affected • to be a responsible employer. (2) A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 4Under this Chapter, meetings of the council and its committees are required, as a general rule, to be open to the public. The Chapter provides for public access to information held by councils. Apart from the provisions of this Chapter, members of the public may influence council decisions concerning matters such as the levels of rates and charges, the terms of community strategic plans, delivery programs and operational plans, the granting of development consents, etc (which are dealt with in later Chapters) by participating in council community engagement activities including by making submissions to the council and comments on or objections to proposals relating to those matters. The Chapter also enables the council to ascertain the views of the local community on various matters through 2 types of polls which may be conducted in the area. A summary of these polls is contained in Part 3 of this Chapter. LOCAL GOVERNMENT ACT 1993 - SECT 9 Public notice of 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. LOCAL GOVERNMENT ACT 1993 - SECT 10 Who is entitled to attend meetings? 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. LOCAL GOVERNMENT ACT 1993 - SECT 10A Which parts of a meeting can be closed to the public? 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 10B Further limitations relating to closure of parts of meetings to public 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. Note: Subsection (4) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989. (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 Director-General. LOCAL GOVERNMENT ACT 1993 - SECT 10C Notice of likelihood of closure not required in urgent cases 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. LOCAL GOVERNMENT ACT 1993 - SECT 10D Grounds for closing part of meeting to be specified 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. LOCAL GOVERNMENT ACT 1993 - SECT 11 Public access to correspondence and reports 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, or (b) were laid on the table at, or submitted to, the meeting, when the meeting was closed to the public. (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. LOCAL GOVERNMENT ACT 1993 - SECT 12 What information is publicly available? 12 What information is publicly available? (1) Everyone is entitled to inspect the current version of the following documents free of charge: • the model code prescribed under section 440 (1) and the code of conduct adopted by the council under section 440 (3) • the council’s code of meeting practice • annual report • annual financial reports • auditor’s report • community strategic plan • delivery program and operational plan • EEO management plan • the council’s policy concerning the payment of expenses incurred by, and the provision of facilities to, councillors • the council’s land register • register of investments • returns of the interests of councillors, designated persons and delegates • agendas and business papers for council and committee meetings (but not including business papers for matters considered when part of a meeting is closed to the public) • minutes of council and committee meetings, but restricted (in the case of any part of a meeting that is closed to the public), to the resolutions and recommendations of the meeting • the register of current declarations of disclosures of political donations to councillors kept in accordance with section 328A • the register of councillor voting on planning matters kept in accordance with section 375A • any codes referred to in this Act • register of delegations • annual reports of bodies exercising delegated council functions • development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and associated documents • local policies adopted by the council concerning approvals and orders • records of approvals granted, any variation from local policies with reasons for the variation, and decisions made on appeals concerning approvals • records of building certificates under the Environmental Planning and Assessment Act 1979 • plans of land proposed to be compulsorily acquired by the council • leases and licences for use of public land classified as community land • plans of management for community land • environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the council’s area • the statement of affairs, the summary of affairs and the register of policy documents required under the Freedom of Information Act 1989 • Departmental representatives’ reports presented at a meeting of the council in accordance with section 433 • the register of graffiti removal work kept in accordance with section 13 of the Graffiti Control Act 2008. (1A) Despite subsection (1) and the other provisions of this Act, a person does not have the right to inspect so much of a development application as consists of: (a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or (b) commercial information, if the information would be likely: (i) to prejudice the commercial position of the person who supplied it, or (ii) to reveal a trade secret. (2) Everyone is entitled to inspect free of charge: (a) a document that was replaced by a current document referred to in subsection (1), and (b) if a document referred to in subsection (1) is produced annually—the corresponding document produced for the previous year. (3) The documents may be inspected at the office of the council during ordinary office hours. (5) The council must allow inspection of versions of the documents other than the current and immediately preceding versions if those other versions are reasonably accessible. (6) The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest. (7) However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following: (a) personnel matters concerning particular individuals (other than councillors), (b) the personal hardship of any resident or ratepayer, (c) trade secrets, (d) a matter the disclosure of which would: (i) constitute an offence against an Act, or (ii) found an action for breach of confidence, (e) that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under section 36DA. (8) For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may: (a) cause embarrassment to the council or to councillors or to employees of the council, or (b) cause a loss of confidence in the council, or (c) cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason. Note: Subsection (8) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989. Note: A council could also make copies of the documents available at other places, for example, at libraries. A council may have other information available for inspection free of charge: for example, the rate record, the valuation list and the register of dog registrations. LOCAL GOVERNMENT ACT 1993 - SECT 12A Restriction of access to information 12A Restriction of access to information (1) If the general manager or any other member of the staff of a council decides that access to a document or other information held by the council should not be given to the public or a councillor, the person concerned must provide the council with written reasons for the restriction. (2) The reasons must be publicly available. (3) The council must review any such restriction no later than 3 months after it is imposed. (4) The council must, at the request of any person made after the expiry of a period of 3 months after that review (or of a period of 3 months after the most recent of any subsequent reviews), carry out a further review of the restriction. (5) The council must remove the restriction if, at any time: (a) it finds that there are no grounds for the restriction, or (b) access to the relevant document or other information is obtained under the Freedom of Information Act 1989. (6) A review is not required under this section if the restriction concerned has been removed. LOCAL GOVERNMENT ACT 1993 - SECT 12B Copies of documents 12B Copies of documents (1) A right under this Act to inspect a document includes the right to take away a copy of the document. (2) Accordingly, a council must have a copy of all relevant documents available for copying by, or on behalf of, any person who asks for one. (3) The copies may be taken away either free of charge or on payment of reasonable copying charges, as the council chooses (except as otherwise specifically provided by or under this Act). (4) This section does not apply to the following: (a) the residential roll of electors referred to in section 302 (1), (b) the information sheets of candidates for election referred to in section 308, (c) building certificates. Note: Section 174 (3) provides that a person may obtain a copy of a building certificate from the council’s record with the consent of the owner of the building (and on payment of the approved fee). LOCAL GOVERNMENT ACT 1993 - SECT 13 Retention and preservation of records 13 Retention and preservation of records The council must retain, preserve and destroy its records in accordance with any approved standards. LOCAL GOVERNMENT ACT 1993 - SECT 14 Council polls 14 Council polls A council may take a poll of electors for its information and guidance on any matter. LOCAL GOVERNMENT ACT 1993 - SECT 15 What is a constitutional referendum? 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. LOCAL GOVERNMENT ACT 1993 - SECT 16 What matters must be dealt with at a constitutional referendum? 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. LOCAL GOVERNMENT ACT 1993 - SECT 17 What is the effect of a constitutional referendum? 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. LOCAL GOVERNMENT ACT 1993 - SECT 18 What provisions apply to the conduct of 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. LOCAL GOVERNMENT ACT 1993 - SECT 19 Day for taking council poll or constitutional referendum 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. LOCAL GOVERNMENT ACT 1993 - SECT 20 When is a question at a council poll or constitutional referendum carried? 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Part 3 Expressions of community opinion __________________________________________________________________________ |__________________________| | |Council Poll |Constitutional | |__________________________________________________| | |Question to be | |__________________________| | | |• Creation or | | | |abolition of all | | | |wards• Change in the | | | |way in which the mayor | | |Any question |is chosen• Change in | | | |number of | | | |councillors• Change | | | |in the way councillors | | | |are elected for an area| |__________________________________________________| |__________________________| |__________________________________________________________________________| | |Council chooses | |Change cannot proceed | | |whether or not to |Change must proceed |until passed by a later| | |proceed | |constitutional | |__________________________________________________________________________| LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 5This Chapter specifies a council’s functions. In doing so, it recognises that all functions of a council come from statute, either from this Act or another Act. LOCAL GOVERNMENT ACT 1993 - SECT 21 Functions under this Act 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). LOCAL GOVERNMENT ACT 1993 - SECT 22 Other functions 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: ___________________________________________________________________ |Community Land Development Act |planning functions as consent | |___________________________________________________________________| |Companion Animals Act 1998 |companion animal registration and | |___________________________________________________________________| |___________________________________________________________________| |Environmental Planning and |environmental planning | |___________________________________________________________________| | |payment of contributions to fire | |Fire Brigades Act 1989 |brigade costs and furnishing of | |___________________________________________________________________| |Fluoridation of Public Water |fluoridation of water supply by | |___________________________________________________________________| |Food Act 2003 |inspection of food and food | |___________________________________________________________________| |___________________________________________________________________| |___________________________________________________________________| |Protection of the Environment |pollution control | |___________________________________________________________________| |Public Health Act 1991 |inspection of systems for purposes| |___________________________________________________________________| |Recreation Vehicles Act 1983 |restricting use of recreation | |___________________________________________________________________| |___________________________________________________________________| |Rural Fires Act 1997 |issue of permits to light fires | |___________________________________________________________________| | |requiring the furnishing of | | |information to the Rural Fire | | |Service Advisory Council and its | |___________________________________________________________________| |State Emergency Service Act 1989|recommending appointment of local | |___________________________________________________________________| |Strata Schemes (Freehold |approval of strata plans | |___________________________________________________________________| |Strata Schemes (Leasehold |approval of leasehold strata plans| |___________________________________________________________________| |Swimming Pools Act 1992 |ensuring restriction of access to | |___________________________________________________________________| The exercise by a council of its functions under this Act may also be modified by the provisions of another Act. Some of those Acts and some of the modifications they effect include: ___________________________________________________________________ |Coastal Protection Act 1979 |limitation on coastal development | |___________________________________________________________________| |Environmental Offences and |forfeiture of council functions to | |___________________________________________________________________| | |council required to publish certain| | |information, to grant access to | |Freedom of Information Act 1989|certain documents and to amend | | |certain records that are shown to | | |be incomplete, incorrect, out of | |___________________________________________________________________| |___________________________________________________________________| |State Emergency and Rescue |council required to prepare for | |___________________________________________________________________| | |unclaimed money to be paid to the | |Unclaimed Money Act 1995 |Chief Commissioner of Unclaimed | |___________________________________________________________________| LOCAL GOVERNMENT ACT 1993 - SECT 23 Supplementary, incidental and consequential functions 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. LOCAL GOVERNMENT ACT 1993 - SECT 23A Director-General’s guidelines 23A Director-General’s guidelines (1) For the purposes of this Act, the Director-General may from time to time prepare, adopt or vary guidelines relating to the exercise by a council of any of its functions. (2) The Director-General 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 Director-General 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 Director-General may determine, to any interested person. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 5 WHAT ARE A COUNCIL’S FUNCTIONS? ______________________________________________________________________________________ | |A COUNCIL | | |EXERCISES | | |FUNCTIONS | |__________________________| |_____________________________________| |SERVICE |REGULATORY |ANCILLARY |REVENUE |ADMINISTRATIVE|ENFORCEMENT|VARIOUS | |______________________________________________________________________________________| |For example: | | | | | | | |• Providing| | | | | | | |community | | | | | | | |health, | | | | | | | |recreation, | | | | | | | |education & | | | | | | | |information | | | | |For example| | |services • | | | | |• | | |Environmental| |• |• Rates |For example |Proceedings| | |protection |• |Resumption|• Charges|• Employment|for | | |• Waste |Approvals |of land |• Fees |of staff • |breaches of|See the | |removal & |• Orders |• Powers|• |Management |the Act •|Note to | |disposal • |• Building|of entry |Borrowings |plans • |Prosecution|section | |Land & |certificates|and |• |Financial |of offences|22 | |property, | |inspection|Investments|reporting • |• | | |industry & | | | |Annual reports|Recovery of| | |tourism | | | | |rates and | | |development &| | | | |charges | | |assistanceFor| | | | | | | |other | | | | | | | |functions, | | | | | | | |see the | | | | | | | |Introduction | | | | | | | |______________________________________________________________________________________| LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 6This Chapter confers on councils their service or non- regulatory functions. Examples of these functions include the provision, management or operation of: • community services and facilities • public health services and facilities • cultural, educational and information services and facilities • sporting, recreational and entertainment services and facilities • environment conservation, protection and improvement services and facilities • waste removal, treatment and disposal services and facilities • pest eradication and control services and facilities • public transport services and facilities • energy production, supply and conservation • water, sewerage and drainage works and facilities • storm water drainage and flood prevention, protection and mitigation services and facilities • fire prevention, protection and mitigation services and facilities • land and property development • housing • industry development and assistance • tourism development and assistance. This list of examples is not exhaustive. These functions are conferred in broad terms in Part 1. Particular provisions are made for the management of public land in Part 2. Part 3 imposes some restraints and qualifications on the exercise of the service functions. A council may have other service functions under other Acts. For example, a council has functions relating to the provision and management of roads under the Roads Act 1993. LOCAL GOVERNMENT ACT 1993 - SECT 24 Provision of goods, services and facilities and carrying out of activities 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Part 2This Part requires all land vested in a council (except a road or land to which the Crown Lands Act 1989 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. LOCAL GOVERNMENT ACT 1993 - SECT 25 All public land must be classified 25 All public land must be classified All public land must be classified in accordance with this Part. LOCAL GOVERNMENT ACT 1993 - SECT 26 What are the classifications? 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. LOCAL GOVERNMENT ACT 1993 - SECT 27 How are the classifications made? 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. LOCAL GOVERNMENT ACT 1993 - SECT 28 Forwarding of planning proposals to Minister for Planning 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. LOCAL GOVERNMENT ACT 1993 - SECT 29 Public hearing into reclassification 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. LOCAL GOVERNMENT ACT 1993 - SECT 30 Reclassification of community land as operational 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 Lands Act 1989). (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. LOCAL GOVERNMENT ACT 1993 - SECT 31 Classification of land acquired after 1 July 1993 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 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. LOCAL GOVERNMENT ACT 1993 - SECT 32 Reclassification of land dedicated under sec 94 of the Environmental Planning and Assessment Act 1979 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. LOCAL GOVERNMENT ACT 1993 - SECT 33 Reclassification of operational land as community land 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. LOCAL GOVERNMENT ACT 1993 - SECT 34 Public notice to be given of classification or reclassification by council resolution 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. LOCAL GOVERNMENT ACT 1993 - SECT 35 What governs the 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. LOCAL GOVERNMENT ACT 1993 - SECT 36 Preparation of draft plans of management for community land 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, (d) the manner in which the council proposes to assess its performance with respect to 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 36A Community land comprising the habitat of endangered species 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 Director-General of National Parks and Wildlife, 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 Director of NSW Fisheries. (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 Director-General of National Parks and Wildlife under section 146 of the Threatened Species Conservation Act 1995 or any decision of the Director of Fisheries 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). LOCAL GOVERNMENT ACT 1993 - SECT 36B Community land comprising the habitat of threatened species 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 Director- General of National Parks and Wildlife, 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 Director of NSW Fisheries. "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). LOCAL GOVERNMENT ACT 1993 - SECT 36C Community land containing significant natural features 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, or (b) a wildlife corridor, is land to which this section applies. (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). LOCAL GOVERNMENT ACT 1993 - SECT 36D Community land comprising area of cultural significance 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 Director-General of National Parks and Wildlife, and (ii) incorporate any matter specified by the Director-General of National Parks and Wildlife 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). LOCAL GOVERNMENT ACT 1993 - SECT 36DA Location of places and items of Aboriginal significance may be kept confidential 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. LOCAL GOVERNMENT ACT 1993 - SECT 36E Core objectives for management of community land categorised as a natural area 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. LOCAL GOVERNMENT ACT 1993 - SECT 36F Core objectives for management of community land categorised as a sportsground 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. LOCAL GOVERNMENT ACT 1993 - SECT 36G Core objectives for management of community land categorised as a park 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. LOCAL GOVERNMENT ACT 1993 - SECT 36H Core objectives for management of community land categorised as an area of cultural significance 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. LOCAL GOVERNMENT ACT 1993 - SECT 36I Core objectives for management of community land categorised as general community use 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). LOCAL GOVERNMENT ACT 1993 - SECT 36J Core objectives for management of community land categorised as bushland 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. LOCAL GOVERNMENT ACT 1993 - SECT 36K Core objectives for management of community land categorised as wetland 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. LOCAL GOVERNMENT ACT 1993 - SECT 36L Core objectives for management of community land categorised as an escarpment 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. LOCAL GOVERNMENT ACT 1993 - SECT 36M Core objectives for management of community land categorised as a watercourse 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. LOCAL GOVERNMENT ACT 1993 - SECT 36N Core objectives for management of community land categorised as foreshore 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. LOCAL GOVERNMENT ACT 1993 - SECT 37 Requirements of plans of management for community land that is not owned by the council 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). LOCAL GOVERNMENT ACT 1993 - SECT 38 Public notice of draft plans of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 39 Notice to owner of draft plan of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 40 Adoption of plans of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 40A Public hearing in relation to proposed plans of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 41 Amendment of plans of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 42 Revocation and cessation of plans of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 43 Public availability of plans of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 44 Use of community land pending adoption of plan of management 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. LOCAL GOVERNMENT ACT 1993 - SECT 45 What dealings can a council have in community land? 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, section 21 (1). (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, a Crown reserve or to become, or be added to, land that is reserved or dedicated under the National Parks and Wildlife Act 1974. LOCAL GOVERNMENT ACT 1993 - SECT 46 Leases, licences and other estates in respect of community land—generally 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 (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, but may not otherwise be granted. (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 21 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. LOCAL GOVERNMENT ACT 1993 - SECT 46A Means of granting leases, licences and other estates 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. LOCAL GOVERNMENT ACT 1993 - SECT 47 Leases, licences and other estates in respect of community land—terms greater than 5 years 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, 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) If a person makes a submission by way of objection to the proposal, the council must not grant the lease, licence or other estate except with the Minister’s consent. (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 newspaper 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 • 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, and (c) in all the circumstances, it is desirable to grant consent, may 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. (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, or (b) would enjoy an advantage or benefit if the same or a similar lease, licence or estate were to be so granted, is taken to confer an option for renewal for a term equal to the further term. LOCAL GOVERNMENT ACT 1993 - SECT 47A Leases, licences and other estates in respect of community land—terms of 5 years or less 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. LOCAL GOVERNMENT ACT 1993 - SECT 47AA Special provisions for leases, licences and other estates granted for filming projects 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), or (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, must, 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 47B Lease or licence in respect of natural area 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, and (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, at the expense of the person to whom the lease, licence or other estate was granted. LOCAL GOVERNMENT ACT 1993 - SECT 47C Sublease of community land 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. LOCAL GOVERNMENT ACT 1993 - SECT 47D Occupation of community land otherwise than by lease or licence 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, or (b) a sublease or other title directly or indirectly derived from the holder of such a lease, licence or estate, is prohibited. (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. LOCAL GOVERNMENT ACT 1993 - SECT 47E Development of community land 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. LOCAL GOVERNMENT ACT 1993 - SECT 47F Dedication of community land as public road 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. LOCAL GOVERNMENT ACT 1993 - SECT 47G Public hearings 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. LOCAL GOVERNMENT ACT 1993 - SECT 48 Responsibility for certain public reserves 48 Responsibility for certain public reserves (1) Except as provided by section 98A of the Crown Lands Act 1989, 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. LOCAL GOVERNMENT ACT 1993 - SECT 49 Public reserves and drainage reserves dedicated on subdivision, transfer or conveyance 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. LOCAL GOVERNMENT ACT 1993 - SECT 50 Public garden and recreation space and drainage reserves provided for in subdivisions approved before 15.6.1964 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 Lands Act 1989 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. LOCAL GOVERNMENT ACT 1993 - SECT 51 Use of land held for drainage purposes 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. LOCAL GOVERNMENT ACT 1993 - SECT 52 Effect of sec 28 of the Environmental Planning and Assessment Act 1979 52 Effect of sec 28 of the Environmental Planning and Assessment Act 1979 This Part is not a regulatory instrument for the purposes of section 28 of the Environmental Planning and Assessment Act 1979. Note: Section 28 of the Environmental Planning and Assessment Act 1979 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. Section 52 prevents section 28 of that Act from removing any of the controls imposed by this Part. LOCAL GOVERNMENT ACT 1993 - SECT 53 The council’s land register 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. LOCAL GOVERNMENT ACT 1993 - SECT 54 Certificate as to classification of 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. LOCAL GOVERNMENT ACT 1993 - SECT 54A Community land to be described in common terms 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. LOCAL GOVERNMENT ACT 1993 - SECT 54B Transfer of private trust land under Trustees of Schools of Arts Enabling Act 1902 54B Transfer of private trust land under Trustees of Schools of Arts Enabling Act 1902 (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 the Trustees of Schools of Arts Enabling Act 1902. "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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Part 2 How do councils manage public land? _____________________________________________________________________________ | |Land owned or controlled by| |_______________________________________________________| |• Public roads• Land to|• All other land | |which the Crown Lands Act | | |1989 applies• Commons• |(It is this other land that| |Land subject to the |this Act defines to be | |Trustees of Schools of |public land.) | |_______________________________________________________| | |This land may be classified| |What regulates this land? |by a local environmental | | |plan or council resolution | |_______________________________________________________| |• PUBLIC ROADS— Roads | | | |Act | | | |1993• CROWN LANDS— | | | |Crown Lands Act | | | |1989• COMMONS— Commons | | | |Management Act |Community |Operational | |1989• MECHANICS’ | | | |INSTITUTES AND SCHOOLS OF | | | |ARTS— Trustees of Schools| | | |of Arts Enabling Act | | | |_____________________________________________________________________________| |_______________________________________________________| |_____________________________________________________________________________| |_______________________________________________________| | |• Use must not change | | | |until management plan | | | |adopted• Use and | | | |management must be in |NO | | |accordance with:— plan of| | | |management adopted by | | | |council— provisions of | | |_____________________________________________________________________________| |_______________________________________________________| | |• Sale prohibited• No | | | |lease or licence over 21 | | | |years• Leases or licences| | | |over 5 years only with |NO | | |Minister’s consent if | | | |anyone objects to the lease| | |_____________________________________________________________________________| |_______________________________________________________| | |By local environmental plan| | | |or, in some circumstances, |By council resolution| |_____________________________________________________________________________| LOCAL GOVERNMENT ACT 1993 - SECT 55 What are the requirements for tendering? 55 What are the 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: • 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 at a rate not exceeding the rate so specified • 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 • a contract entered into by a council with another council • a contract for the purchase or sale by a council of land • 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) • a contract for purchase or sale by a council at public auction • a contract for the purchase of goods, materials or services specified by the State Contracts Control Board or the Department of Administrative Services of the Commonwealth, made with a person so specified, during a period so specified and at a rate not exceeding the rate so specified • a contract for the employment of a person as an employee of the council • 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 • contract for which, because of provisions made by or under another Act, a council is exempt from the requirement to invite a tender • a contract made in a case of emergency • a contract to enter into a public-private partnership • 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) • a contract involving an estimated expenditure or receipt of an amount of less than $100,000 or such other amount as may be prescribed by the regulations. (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. LOCAL GOVERNMENT ACT 1993 - SECT 55A Extended operation of section 55 to council-related entities 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. LOCAL GOVERNMENT ACT 1993 - SECT 56 Application of Division 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. Note: See clause 2 of the Public Sector Employment and Management (Town Water) Order 2003, published on 28 November 2003 in Gazette No 186 at page 10775 for the way in which the references to the Minister for Land and Water Conservation in sections 57–66 are to be construed. LOCAL GOVERNMENT ACT 1993 - SECT 57 Construction of works 57 Construction of works (1) The Minister for Land and Water Conservation 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 Land and Water Conservation may agree to the construction of the works by the council or councils concerned on the Minister’s behalf. LOCAL GOVERNMENT ACT 1993 - SECT 58 Handing over of works 58 Handing over of works (1) The Minister for Land and Water Conservation 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. LOCAL GOVERNMENT ACT 1993 - SECT 59 Vesting of works 59 Vesting of works (1) The Minister for Land and Water Conservation 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. LOCAL GOVERNMENT ACT 1993 - SECT 59A Ownership of water supply, sewerage and stormwater drainage works 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. LOCAL GOVERNMENT ACT 1993 - SECT 60 Council works for which the approval of the Minister for Land and Water Conservation is required 60 Council works for which the approval of the Minister for Land and Water Conservation is required A council must not, except in accordance with the approval of the Minister for Land and Water Conservation, do any of the following: (a) as to works of water supply—construct or extend a dam for the impounding or diversion of water for public use or any associated works, (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) as to flood retarding basins prescribed by the regulations—construct or extend any such basins. LOCAL GOVERNMENT ACT 1993 - SECT 61 Directions of the Minister for Land and Water Conservation concerning certain works 61 Directions of the Minister for Land and Water Conservation concerning certain works (1) The Minister for Land and Water Conservation 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) dams for the impounding or diversion of water for public use or any associated works, (b) water treatment works, (c) sewage treatment works. (2) The council must comply with the direction. LOCAL GOVERNMENT ACT 1993 - SECT 62 Powers of Minister during emergencies 62 Powers of Minister during emergencies (1) The Minister for Land and Water Conservation 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 Land and Water Conservation has obtained the concurrence of the Minister for Health. (3) The council must comply with the direction. LOCAL GOVERNMENT ACT 1993 - SECT 63 Effect of failure to comply with directions 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 Land and Water Conservation 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. LOCAL GOVERNMENT ACT 1993 - SECT 64 Construction of works for developers 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. LOCAL GOVERNMENT ACT 1993 - SECT 65 Powers of Minister for Land and Water Conservation—entry on to land and other powers 65 Powers of Minister for Land and Water Conservation—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 Land and Water Conservation 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. LOCAL GOVERNMENT ACT 1993 - SECT 66 Appointment of administrator 66 Appointment of administrator (1) The Minister for Land and Water Conservation 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. (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 section 740, be made by the Minister for Land and Water Conservation with the concurrence of the Minister for Local Government. (4) The administrator is to be paid a salary determined by the Minister for Land and Water Conservation 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 67 Private works 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. 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 7The major regulatory functions of councils are found in this Chapter. It lists the activities that are regulated and it sets out the means of their regulation. A council, in relation to a range of activities within its area, exercises regulatory functions of 2 main kinds. First—various activities can only be carried out if the council gives its approval (for example, the operation of a caravan park). Some of these approvals may also be granted as part of the development consent process under Part 4 of the Environmental Planning and Assessment Act 1979. Second—a council can order a person to do, or to stop doing, something (for example, a council can order a person to keep fewer animals on specified premises). Failure to obtain or to comply with an approval and failure to comply with an order are made offences under sections 626, 627 and 628. A council is not given power to regulate activities by other means. For example, the Chapter does not confer power to require a person to hold a periodic licence. In exercising its regulatory functions, the council must observe any relevant statutory criteria and any other criteria contained in a local policy it may have adopted after public consultation. LOCAL GOVERNMENT ACT 1993 - SECT 68 What activities, generally, require the approval of the council? 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. (2) This section does not apply to the carrying out of an activity specified in Part B of the following Table: (a) on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or (b) on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991. (3) This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4 or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under the Water Management Act 2000. Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence—see secs 626 and 627. Table Approvals Part A Structures or places of public entertainment 1 Install a manufactured home, moveable dwelling or associated structure on land Part B Water supply, sewerage and stormwater drainage work 1 Carry out water supply work 2 Draw water from a council water supply or a standpipe or sell water so drawn 3 Install, alter, disconnect or remove a meter connected to a service pipe 4 Carry out sewerage work 5 Carry out stormwater drainage work 6 Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer Part C Management of waste 1 For fee or reward, transport waste over or under a public place 2 Place waste in a public place 3 Place a waste storage container in a public place 4 Dispose of waste into a sewer of the council 5 Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility 6 Operate a system of sewage management (within the meaning of section 68A) Part D Community land 1 Engage in a trade or business 2 Direct or procure a theatrical, musical or other entertainment for the public 3 Construct a temporary enclosure for the purpose of entertainment 4 For fee or reward, play a musical instrument or sing 5 Set up, operate or use a loudspeaker or sound amplifying device 6 Deliver a public address or hold a religious service or public meeting Part E Public roads 1 Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway 2 Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road Part F Other activities 1 Operate a public car park 2 Operate a caravan park or camping ground 3 Operate a manufactured home estate 4 Install a domestic oil or solid fuel heating appliance, other than a portable appliance 5 Install or operate amusement devices 7 Use a standing vehicle or any article for the purpose of selling any article in a public place 10 Carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations LOCAL GOVERNMENT ACT 1993 - SECT 68A Meaning of “operate a system of sewage management” 68A Meaning of “operate a system of sewage management” (1) In this Part, "operate a system of sewage management" means hold or process, or re-use or discharge, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated). (2) Without limiting subsection (1), "operate a system of sewage management" includes the following: (a) use artificial wetlands, transpiration mounds, trenches, vegetation and other effluent polishing, dispersal or re-use arrangements in related land application areas, (b) hold or process sewage that is to be subsequently discharged into a public sewer. (3) However, "operate a system of sewage management" does not include any of the following: (a) any action relating to the discharge of sewage directly into a public sewer, (b) any action relating to sewage or by-products of sewage after their discharge into a public sewer. (4) In this section: "public sewer" means a sewer operated by a council or county council, a water supply authority (within the meaning of the Water Management Act 2000), a State owned corporation specified in Schedule 1 or 5 to the State Owned Corporations Act 1989 (or a subsidiary of such a corporation) or any other public or local authority. "related land application area", in relation to a sewage management facility, means the area of land (if any) where it is intended that effluent and bio-solid waste from the facility will be re-used, applied or dispersed into the environment. "sewage" includes any effluent of the kind referred to in paragraph (a) of the definition of "waste" in the Dictionary to this Act. "sewage management facility" means: (a) a human waste storage facility, or (b) a waste treatment device intended to process sewage, and includes a drain connected to such a facility or device. LOCAL GOVERNMENT ACT 1993 - SECT 69 Crown exemption from approval to do things incidental to erection or demolition of building 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. LOCAL GOVERNMENT ACT 1993 - SECT 72 Determination of applications by the Crown 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. LOCAL GOVERNMENT ACT 1993 - SECT 73 Effect of council’s failure to determine Crown application 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. LOCAL GOVERNMENT ACT 1993 - SECT 74 Prohibition on appeals concerning Crown applications 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. LOCAL GOVERNMENT ACT 1993 - SECT 75 Applications for approval 75 Applications for approval An application may be made to the council for an approval under this Part. LOCAL GOVERNMENT ACT 1993 - SECT 76 What may an application relate to? 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. LOCAL GOVERNMENT ACT 1993 - SECT 77 Relevant regulations and local policies to be brought to notice of intending applicants 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. LOCAL GOVERNMENT ACT 1993 - SECT 78 Who may make an application? 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. LOCAL GOVERNMENT ACT 1993 - SECT 79 What is the form of application? 79 What is the form of application? An application must be made in the approved form. LOCAL GOVERNMENT ACT 1993 - SECT 80 Is there an application fee? 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. LOCAL GOVERNMENT ACT 1993 - SECT 81 What matters must accompany an application? 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. LOCAL GOVERNMENT ACT 1993 - SECT 82 Objections to application of regulations and local policies 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 Director-General, in determining the application, direct that: (a) such provisions of any regulation relating to that activity as are specified in the direction: (i) are not to apply, or (ii) are to apply with such modifications as are specified in the direction, in respect of the carrying out of that activity, or (b) such requirements as are specified in the direction are to apply to the carrying out of that activity, or give directions under both paragraphs (a) and (b). (3A) If the objection relates to a local policy adopted under Part 3 by the council and the council is satisfied that the objection is well founded, it may, in determining the application, direct that: (a) such provisions of any local policy relating to that activity as are specified in the direction: (i) are not to apply, or (ii) are to apply with such modifications as are specified in the direction, in respect of the carrying out of that activity, or (b) such requirements as are specified in the direction are to apply to the carrying out of that activity, or give directions under both paragraphs (a) and (b) and the council must give the reasons for its direction or directions. (3B) An objection is well founded for the purposes of subsection (3A) only if the council is satisfied that no person or the public interest will be adversely affected by the variation and that any variation is consistent with the principles of ecologically sustainable development. (4) Any direction given by the council under subsection (3) or (3A), if the council’s approval to the application concerned is granted, has effect according to its tenor and, in the case of a direction referred to in subsection (3) (a) (ii) or (b) or subsection (3A) (a) (ii) or (b), is a condition of that approval. LOCAL GOVERNMENT ACT 1993 - SECT 83 Ownership and use of plans and specifications 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. LOCAL GOVERNMENT ACT 1993 - SECT 84 Acknowledgment of application 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. LOCAL GOVERNMENT ACT 1993 - SECT 85 Rejection of unclear or illegible applications 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. LOCAL GOVERNMENT ACT 1993 - SECT 86 Request for more information 86 Request for more information (1) The council may, before it determines or is taken to have determined an application, request an applicant to provide it with more information that is reasonably necessary to enable the proper determination of the application. (2) The request must be made within 21 days after the council receives the application. (3) The information must be provided within a reasonable period specified by the council for the purpose, subject to subsection (4). (4) The period of time that elapses between the date of the council’s request and the date on which: (a) the information is provided, or (b) the applicant notifies the council that the information will not be provided, or (c) the period specified by the council ends, whichever is the sooner, is not to be taken into consideration in calculating the period referred to in section 105. (5) A second or subsequent request for information may be made by the council, but such a request has no effect for the purposes of section 105. LOCAL GOVERNMENT ACT 1993 - SECT 87 Amendment of applications 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. LOCAL GOVERNMENT ACT 1993 - SECT 88 Withdrawal of applications 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. LOCAL GOVERNMENT ACT 1993 - SECT 89 Matters for consideration 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. LOCAL GOVERNMENT ACT 1993 - SECT 90 Concurrence 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. LOCAL GOVERNMENT ACT 1993 - SECT 91 Giving effect to 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. LOCAL GOVERNMENT ACT 1993 - SECT 92 Approval where an accreditation is in force 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. LOCAL GOVERNMENT ACT 1993 - SECT 93 Certification by qualified persons 93 Certification by qualified persons (1) A council or the Minister may be satisfied that: (a) a particular design, material, process or product complies with a criterion for approval, or (b) an activity has been carried out in compliance with an approval, by relying on a certificate to that effect from an appropriately qualified person. (2) A certificate relating to a particular design, material, process or product must specify the particular criterion with which the design, material, process or product complies. (3) The council or the Minister must rely on such a certificate if it is from an appropriately qualified person and is furnished by a public authority. Note: Sections 92 and 93 specify circumstances in which a council does not have to form an independent judgment about some aspect of an activity for which approval is being sought, but may rely on an accreditation or certification of a competent person. A component, process or design relating to an activity may be accredited in accordance with the procedure set out in Division 5 of this Part. Section 732 exempts a council, councillor or employee of a council from liability that would otherwise be incurred as a consequence of relying on an accreditation or certification. LOCAL GOVERNMENT ACT 1993 - SECT 94 Determination of application 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. LOCAL GOVERNMENT ACT 1993 - SECT 95 “Deferred commencement” approval 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. LOCAL GOVERNMENT ACT 1993 - SECT 96 Staged approval 96 Staged approval (1) An approval may be granted: (a) for the activity or one or more of the activities for which the approval is sought, or (b) for such an activity, except for a specified part or aspect of the activity, or (c) for a specified part or aspect of such an activity. (2) Such an approval may be granted subject to a condition that the activity or the specified part or aspect of the activity, or any thing associated with the activity or the carrying out of the activity, must be the subject of: (a) a further approval, or (b) a consent, approval or permission under another Act, or both. LOCAL GOVERNMENT ACT 1993 - SECT 97 Conditions concerning security 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. LOCAL GOVERNMENT ACT 1993 - SECT 98 Other conditions 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. LOCAL GOVERNMENT ACT 1993 - SECT 99 Notice to applicant of determination of application 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. LOCAL GOVERNMENT ACT 1993 - SECT 100 Review of determination 100 Review of determination (1) An applicant may request the council to review a determination of the applicant’s application. (2) The request for a review must be made within 28 days after the date of the determination. (3) An approved fee must, if required by the council, be paid in connection with a request for a review. (4) The council may review the determination and, as a consequence of its review, may confirm or change the determination. (4A) The decision whether or not to review the determination must not be made by the person who made the determination, unless that person was the council, but is to be made by a person who is qualified under subsection (5) to make the review. (5) If the council reviews the determination, the review must be made by: (a) if the determination was made by a delegate of the council—the council or another delegate of the council who is not subordinate to the delegate who made the determination, or (b) if the determination was made by the council—the council. (6) The council must give notice of the result of the review to the applicant as soon as practicable after the review. (7) The date of review must be endorsed on the notice. (8) If, as a consequence of a review, the council changes a determination, the changed determination replaces the earlier determination as from the date of the review. (9) A determination on a review may not be further reviewed under this section. LOCAL GOVERNMENT ACT 1993 - SECT 101 Date from which approval operates 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. LOCAL GOVERNMENT ACT 1993 - SECT 102 Insurance for residential building work 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. LOCAL GOVERNMENT ACT 1993 - SECT 102A Evidence of insurance-related matters 102A Evidence of insurance-related matters (1) A statement purporting to be signed by an owner of land and declaring that: (a) the owner intends to do residential building work (within the meaning of the Home Building Act 1989) on the land, and (b) the reasonable market cost of the labour and materials involved in the work is not high enough for the owner to need an owner-builder permit to do the work, is, for the purpose of the council’s making an endorsement, sufficient evidence of the matter referred to in subsection (1) (b). (2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 to the effect that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purpose of the council’s making an endorsement, sufficient evidence that the person has complied with the requirements of that Part. LOCAL GOVERNMENT ACT 1993 - SECT 103 When does an approval lapse? 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: (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. LOCAL GOVERNMENT ACT 1993 - SECT 105 Circumstances in which approval is taken to have been refused 105 Circumstances in which approval is taken to have been refused (1) If the council has not determined an application: (a) within the period of 40 days after the application is lodged with it, except as provided by paragraph (b), or (b) within the period of 80 days after the application is lodged with it in the case of an application for which the concurrence of a person or authority is required by or under this Act, the council is, for the purposes only of section 176, taken to have determined the application by refusing approval on the date on which that period expires. (2) Nothing in subsection (1) prevents the council from determining an application after the expiration of the 40-day or 80-day period, whether on a review under section 100 or otherwise. (3) A determination under subsection (2) does not prejudice or affect the continuance or determination of an appeal made under section 176 in respect of a determination that is taken under subsection (1) to have been made, subject to subsection (4). (4) Where a determination under subsection (2) is made by granting approval, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 176 in respect of a determination that is taken by subsection (1) to have been made, withdrawn at any time before the appeal is determined. LOCAL GOVERNMENT ACT 1993 - SECT 106 Can approvals be amended? 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 107 Can approvals be extended or renewed? 107 Can approvals be extended or renewed? (1) The council may determine to extend or renew an approval (but without changing the terms of the approval) if satisfied there is good cause for doing so. (2) The renewal of an approval operates as if it were an approval granted on the date of renewal. (3) The extension or renewal may be granted before the approval lapses or at any time within 3 months after the approval lapses. (4) The relevant provisions of: (a) sections 72, 73, 74, 78, 79, 80, 84, 85, 87, 88, 99 and 105, and (b) Division 1 of Part 5, apply to an application made by the Crown or a person prescribed by the regulations referred to in section 72 (1) to extend or renew an approval in the same way as they apply to an application for an approval. (5) The relevant provisions of: (a) sections 78, 79, 80, 84, 85, 87, 88, 99 and 105, and (b) Division 1 of Part 5, apply to an application made by any other person to extend or renew an approval in the same way as they apply to an application for an approval. LOCAL GOVERNMENT ACT 1993 - SECT 107A Special provision—renewal of approvals relating to operation of sewage management systems 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). LOCAL GOVERNMENT ACT 1993 - SECT 108 Can approvals be revoked or modified? 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. LOCAL GOVERNMENT ACT 1993 - SECT 109 In what circumstances can an approval be revoked or modified? 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. LOCAL GOVERNMENT ACT 1993 - SECT 110 Notice to be given of proposed revocation or modification 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. LOCAL GOVERNMENT ACT 1993 - SECT 111 Application of secs 108, 109 and 110 to the Crown 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. LOCAL GOVERNMENT ACT 1993 - SECT 112 Entitlement to compensation 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). LOCAL GOVERNMENT ACT 1993 - SECT 113 Record of approvals 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. LOCAL GOVERNMENT ACT 1993 - SECT 114 What is the purpose of this Division? 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. LOCAL GOVERNMENT ACT 1993 - SECT 115 Applications for approvals for filming 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. LOCAL GOVERNMENT ACT 1993 - SECT 116 Form of, and security deposits, bonds, fees and charges for, filming proposal 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). LOCAL GOVERNMENT ACT 1993 - SECT 117 Acknowledgment of application and notification of fees 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. LOCAL GOVERNMENT ACT 1993 - SECT 118 What matters must accompany a filming proposal? 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. LOCAL GOVERNMENT ACT 1993 - SECT 119 Filming protocol to be brought to attention of intending applicants 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. LOCAL GOVERNMENT ACT 1993 - SECT 119A Amendment and withdrawal of applications 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. LOCAL GOVERNMENT ACT 1993 - SECT 119B Application for approvals under Division 3 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. LOCAL GOVERNMENT ACT 1993 - SECT 119C Application for approval other than under Division 3 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. LOCAL GOVERNMENT ACT 1993 - SECT 119CA Presumption in favour of grant of approval 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. LOCAL GOVERNMENT ACT 1993 - SECT 119D Applicable filming protocol 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 Director-General 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 Director- General—that filming protocol. (2) The Director-General 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 Director-General must not approve a filming protocol adopted by a council unless the Director-General is satisfied that it is comparable to the filming protocol issued by the Director-General. (4) Before issuing a filming protocol, or approving a filming protocol adopted by a council, the Director-General 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. LOCAL GOVERNMENT ACT 1993 - SECT 119E Advertising or notification of applications made in filming proposal 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. LOCAL GOVERNMENT ACT 1993 - SECT 119F Application of this Division 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. LOCAL GOVERNMENT ACT 1993 - SECT 120 Application for accreditation 120 Application for accreditation (1) Any person may apply to the Director-General 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 Director-General 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 Director-General considers appropriate. (4) The Director-General may refuse to consider an application but in that event must refund the fee paid. LOCAL GOVERNMENT ACT 1993 - SECT 121 Determination of application 121 Determination of application (1) The Director-General 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 Director-General thinks fit. (3) In determining an application for accreditation, the Director- General may have regard to sources of information published or otherwise made available by such persons or bodies as the Director- General considers appropriate. (4) In granting an accreditation, the Director-General 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. LOCAL GOVERNMENT ACT 1993 - SECT 122 Revocation of accreditation 122 Revocation of accreditation (1) The Director-General may at any time revoke an accreditation if the Director-General 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 Director-General determines to revoke an accreditation, the Director-General must notify the applicant for accreditation of the Director-General’s determination. LOCAL GOVERNMENT ACT 1993 - SECT 123 Councils to be informed of accreditation and revocation 123 Councils to be informed of accreditation and revocation The Director-General 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. LOCAL GOVERNMENT ACT 1993 - SECT 123A Application for extension or renewal of accreditation 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 Director-General 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. LOCAL GOVERNMENT ACT 1993 - SECT 123B Acceptance of accreditation by others 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 Director-General, and (b) may provide that an accreditation granted by a person or body other than the Director-General is to be taken to be an accreditation granted and notified under, and subject to the revocation provisions of, this Division. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Part 1[graphic] LOCAL GOVERNMENT ACT 1993 - SECT 124 What orders may be given, in what circumstances and to whom? 124 What orders may be given, in what circumstances and to whom? 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: ___________________________________________________________________ |Food Act 2003 |(by delegation) improvement notice or| |___________________________________________________________________| |Protection of the Environment|environment protection notices | |___________________________________________________________________| | |direction concerning maintenance or | |Public Health Act 1991 |use of certain air-conditioning | |___________________________________________________________________| |Roads Act 1993 |order preventing the passage of | |___________________________________________________________________| | |order for the removal of an | |___________________________________________________________________| | |order requiring owner of swimming | |Swimming Pools Act 1992 |pool to bring it into compliance with| |___________________________________________________________________| A person who fails to comply with an order is guilty of an offence—see sec 628. Table Orders Orders requiring or prohibiting the doing of things to or on premises ___________________________________________________________________ |___________________________________________________________________| | |To do what? |In what |To whom? | |___________________________________________________________________| | | |(d) Building is | | | | |erected in a | | | |To demolish or |catchment district | | |1 |remove a building |and causes or is |Owner of building | | | |likely to cause | | | | |pollution of the | | |___________________________________________________________________| |___________________________________________________________________| | | |(c) Building is | | | |To repair or make |erected in a | | | |structural |catchment district | | |3 |alterations to a |and causes or is |Owner of building | | |building |likely to cause | | | | |pollution of the | | |___________________________________________________________________| |___________________________________________________________________| | |To take such action| |Owner, occupier or | | |as is necessary to | |manager or, in the | | |bring into | |case of a water | | |compliance with | |meter, water supply | | |relevant standards | |or sewerage system | | |or requirements set| |in respect of which | | |or made by or under| |a defect occurs in | | |this Act or under | |work due to faulty | | |the Local | |workmanship of, or | | |Government Act |Failure to comply |defective material | | |1919:(a) a camping |with relevant |supplied by, a | | |ground, caravan |standards or |licensed contractor | |5 |park or |requirements set or|(being the holder of| | |manufactured home |made by or under |a licence in force | | |estate(b) a |this Act or under |under the Home | | |moveable dwelling |the Local |Building Act 1989 | | |or manufactured |Government Act 1919|authorising the | | |home(d) a place of | |holder to contract | | |shared | |to do the work) | | |accommodation(e) a | |within 12 months | | |hairdressers shop | |after the work is | | |or beauty salon(f) | |carried out or the | | |a mortuary(h) a | |material is | | |water meter, water | |supplied, the | | |supply or sewerage | |licensed contractor | |___________________________________________________________________| |___________________________________________________________________| | | |Public health, | | | | |safety or | | | | |convenience renders| | | | |it necessary or |Owner or occupier of| |7 |To fence land |expedient to do so |land | | | |and there is no | | | | |adequate fence | | | | |between the land | | |___________________________________________________________________| | |To identify |Premises have a | | | |premises with such |frontage to or | | | |numbers or other |entrance from a | | |8 |identification in |road and there are |Owner or occupier of| | |such manner as is |no markings that |land | | |specified in the |can readily be seen| | | |order |and understood from| | |___________________________________________________________________| | |To fence, empty, | | | | |fill in or cover up|Hole or waterhole | | |9 |a hole or waterhole|is or may become |Owner or occupier of| | |in the manner |dangerous to life |land | | |specified in the | | | |___________________________________________________________________| | | |Land is in the | | | |To remove or stack |immediate vicinity | | | |articles or matter,|of a public place | | | |to cover articles |and is used for the|Owner or occupier of| |10 |or matter, to erect|storage of articles|land | | |fences or screens |or matter so as to | | | |or to plant trees |create or be likely| | | | |to create unsightly| | |___________________________________________________________________| | | |Work carried out on| | | | |land has caused or | | | | |is likely to cause | | | | |environmental | | | | |damage, being | | | | |damage to the | | | | |physical | | | | |environment that is| | | | |caused by:(a) | | | | |drainage, or(b) | | | | |drainage works, or | | | | |(c) obstructing a | | | |To do or to refrain|natural watercourse| | | |from doing such |other than by a | | | |things as are |work constructed or| | | |specified in the |used under a water | | | |order to prevent |management work | | | |environmental |approval granted |Owner or occupier of| |11 |damage, to repair |under the Water |land | | |environmental |Management Act | | | |damage or to |2000,not being | | | |prevent further |environmental | | | |environmental |damage arising from| | | |damage |premises, works or | | | | |equipment the | | | | |subject of a | | | | |licence issued | | | | |under the | | | | |Protection of the | | | | |Environment | | | | |Operations Act 1997| | | | |or the subject of a| | | | |notice or direction| | | | |issued by a | | | | |regulatory | | | | |authority under | | |___________________________________________________________________| | |To do such things |Other land, or a | | | |as are necessary to|building on the | | |12 |control the flow of|land or other land,|Owner or occupier of| | |surface water |is being damaged or|land | | |across land |is likely to be | | |___________________________________________________________________| |___________________________________________________________________| Orders requiring that premises be used or not used in specified ways ___________________________________________________________________ |___________________________________________________________________| | |To do what? |In what |To whom? | |___________________________________________________________________| | | |The activity | | | | |constitutes or is | | | | |likely to | | | |Not to conduct, or |constitute:(a) a | | | |to cease conducting,|life threatening |Any person apparently| | |an activity on |hazard, or(b) a |engaged in promoting,| |15 |premises (whether or|threat to public |conducting or | | |not the activity is |health or public |carrying out the | | |approved under this |safetyand is not |activity | | |Act) |regulated or | | | | |controlled under any| | | | |other Act by a | | |___________________________________________________________________| |___________________________________________________________________| | |To cease the use of |A person to whom | | |16 |premises or to |order No 15 is given|The person to whom | | |evacuate premises |has failed to comply|order No 15 is given | |___________________________________________________________________| | |To leave premises or|A person to whom | | |17 |not to enter |order No 15 is given|Any person | | |premises |has failed to comply| | |___________________________________________________________________| | | |Birds or animals | | | | |kept on premises | | | | |are:(a) in the case | | | | |of any premises | | | | |(whether or not in a| | | | |catchment | | | | |district)—of an | | | |Not to keep birds or|inappropriate kind | | | |animals on premises,|or number or are | | | |other than of such |kept | | |18 |kinds, in such |inappropriately, or |Occupier of premises | | |numbers or in such |(b) in the case of | | | |manner as specified |premises in a | | | |in the order |catchment | | | | |district—birds or | | | | |animals (being birds| | | | |or animals that are | | | | |suffering from a | | | | |disease which is | | | | |communicable to man | | | | |or to other birds or| | |___________________________________________________________________| | | |Actual or likely | | | |To use or not to use|annoyance or threat | | |19 |a tennis court as |to the safety of |Occupier of land | | |specified |neighbours or users | | |___________________________________________________________________| Orders requiring the preservation of healthy conditions ___________________________________________________________________ |___________________________________________________________________| | |To do what? |In what |To whom? | |___________________________________________________________________| | |To do such things as| | | | |are specified in the| | | | |order to put | | | | |premises, vehicles | | | | |or articles used for| | | | |the manufacture, |The premises, vehicle|Owner or occupier of| |20 |preparation, |or article is not in |premises or owner or| | |storage, sale, |a clean or sanitary |operator of vehicle | | |transportation or |condition |or article | | |other handling or | | | | |use of or in | | | | |relation to food | | | | |into a clean or | | | |___________________________________________________________________| | |To do or refrain | | | | |from doing such | | | | |things as are | | | | |specified in the |The land or premises |Owner or occupier of| |21 |order to ensure that|are not in a safe or |land or premises | | |land is, or premises|healthy condition | | | |are, placed or kept | | | | |in a safe or healthy| | | |___________________________________________________________________| | |To store, treat, |Waste is present or | | | |process, collect, |generated on the land| | | |remove, dispose of |or premises and is |Owner or occupier of| | |or destroy waste |not being dealt with |land or premises, | | |which is on land or |satisfactorily, and |owner of or person | | |premises in the |is not regulated or |responsible for the | |22 |manner specified in |controlled by, or |waste or for any | | |the order, provided |subject to, a licence|receptacle or | | |that it is not |or notice granted or |container in which | | |inconsistent with |issued under the |the waste is | | |regulations made |Protection of the |contained | | |under the Protection|Environment | | | |of the Environment |Operations Act 1997 | | |___________________________________________________________________| | | |The waste is, in the | | | | |opinion of an | | | |To remove or dispose|environmental health | | | |of waste that is on |officer (within the | | | |any residential |meaning of the Public|Owner or occupier of| |22A|premises or to |Health Act 1991), |the premises | | |refrain from keeping|causing or is likely | | | |waste on those |to cause a threat to | | | |premises |public health or the | | | | |health of any | | |___________________________________________________________________| | |To connect premises |The premises are | | |23 |to the council’s |situated within 225 |Owner or occupier of| | |water supply by a |metres of a water |land | |___________________________________________________________________| | |To connect premises |The premises are | | |24 |with a sewerage |situated within 75 |Owner or occupier of| | |system by a |metres of a sewer of |premises | |___________________________________________________________________| | |Not to use or permit| | | | |the use of a human |It is necessary for | | |25 |waste storage |the purpose of |Owner or occupier of| | |facility on premises|protecting public |premises | | |after a specified |health | | |___________________________________________________________________| Orders requiring the protection or repair of public places ___________________________________________________________________ |___________________________________________________________________| | |To do what? |In what |To whom? | |___________________________________________________________________| |___________________________________________________________________| | | |The object or matter:| | | | |(a) is causing or is | | | | |likely to cause an | | | | |obstruction or | | | |To remove an object |encroachment of or on|Person causing | | |or matter from a |the public place and |obstruction or | | |public place or |the obstruction or |encroachment or owner| |27|prevent any object |encroachment is not |or occupier of land | | |or matter being |authorised by or |from which the object| | |deposited there |under any Act, or(b) |or matter emanates or| | | |is causing or is |is likely to emanate | | | |likely to cause | | | | |danger, annoyance or | | | | |inconvenience to the | | |___________________________________________________________________| | |To take whatever | | | | |steps are necessary | | | |28|to prevent damage to|There is actual or | | | |a public place and |likely damage: | | | |to repair damage to | | | |___________________________________________________________________| | |(a) by excavation or|Person responsible | | |removal of material |for the excavation or| | |from or adjacent to |the removal of the | |_____________________________________________| | | |Owner or person | | |(b) by a work or |entitled to the | | |structure, or |benefit of the work | |_____________________________________________| | | |Owner or occupier of | | |(c) by surface |land from which | | |drainage or |surface drainage | | |irrigation |flows or from which | |_____________________________________________| | |To alter or repair a| | | |29|work or structure |It is in the public |Owner of the work or | | |on, over or under a |interest to do so |structure | |___________________________________________________________________| Orders requiring compliance with approval ___________________________________________________________________ |___________________________________________________________________| |___________________________________________________________________| | | | |Person entitled to act | | |To comply with an|The approval is not |on the approval or | |30|approval |being complied with |person acting otherwise| | | | |than in compliance with| |___________________________________________________________________| LOCAL GOVERNMENT ACT 1993 - SECT 125 Abatement of public nuisances 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. LOCAL GOVERNMENT ACT 1993 - SECT 126 Giving orders to public authorities 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 • a reserve within the meaning of Part 5 of the Crown Lands Act 1989 • a common. (2) The Minister must not give consent in respect of vacant Crown lands or a reserve within the meaning of Part 5 of the Crown Lands Act 1989 until after the Minister has consulted the Minister administering the Crown Lands Act 1989. LOCAL GOVERNMENT ACT 1993 - SECT 127 Making of regulations for the purposes of this Division 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. LOCAL GOVERNMENT ACT 1993 - SECT 128 Catchment districts 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. LOCAL GOVERNMENT ACT 1993 - SECT 128A Orders about removal or keeping of waste 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. LOCAL GOVERNMENT ACT 1993 - SECT 129 Circumstances in which compliance with this Division is required 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. LOCAL GOVERNMENT ACT 1993 - SECT 130 Effect of compliance with this Division 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). LOCAL GOVERNMENT ACT 1993 - SECT 131 Criteria to be considered before order is given 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. LOCAL GOVERNMENT ACT 1993 - SECT 131A Orders that make or are likely to make residents homeless 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. LOCAL GOVERNMENT ACT 1993 - SECT 132 Notice to be given of proposed order 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. LOCAL GOVERNMENT ACT 1993 - SECT 133 Making of representations 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. LOCAL GOVERNMENT ACT 1993 - SECT 134 Hearing and consideration of representations 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. LOCAL GOVERNMENT ACT 1993 - SECT 135 Procedure after hearing and consideration of representations 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. LOCAL GOVERNMENT ACT 1993 - SECT 136 Reasons for orders to be given 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. LOCAL GOVERNMENT ACT 1993 - SECT 137 Period for compliance with order 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. LOCAL GOVERNMENT ACT 1993 - SECT 138 Notice of right to appeal against order 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. LOCAL GOVERNMENT ACT 1993 - SECT 138A Approval or consent not required to comply with order 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. LOCAL GOVERNMENT ACT 1993 - SECT 139 Order may specify standards and work that will satisfy those standards 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. LOCAL GOVERNMENT ACT 1993 - SECT 140 Compliance with order referred to in sec 139 (2) 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. LOCAL GOVERNMENT ACT 1993 - SECT 141 Council’s response to submission of particulars of work by owner 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. LOCAL GOVERNMENT ACT 1993 - SECT 142 Orders affecting heritage items 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. LOCAL GOVERNMENT ACT 1993 - SECT 143 Combined orders 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. LOCAL GOVERNMENT ACT 1993 - SECT 144 Giving and taking effect of orders 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. LOCAL GOVERNMENT ACT 1993 - SECT 145 Orders may be given to two or more persons jointly 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. LOCAL GOVERNMENT ACT 1993 - SECT 146 Notice in respect of land or building owned or occupied by more than one person 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. LOCAL GOVERNMENT ACT 1993 - SECT 147 Compliance with orders by occupiers or managers 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. LOCAL GOVERNMENT ACT 1993 - SECT 148 Occupier of land may be required to permit owner to carry out work 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. LOCAL GOVERNMENT ACT 1993 - SECT 152 Modification of orders 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. LOCAL GOVERNMENT ACT 1993 - SECT 153 Revocation of orders 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. LOCAL GOVERNMENT ACT 1993 - SECT 154 The Minister may exercise any function concerning an order that a council may exercise 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 1991. (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. LOCAL GOVERNMENT ACT 1993 - SECT 155 Effect of inconsistency between council’s order and Minister’s order 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. LOCAL GOVERNMENT ACT 1993 - SECT 156 Minister may revoke or modify a council’s order 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. LOCAL GOVERNMENT ACT 1993 - SECT 157 Limitation on Minister’s orders 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Part 2[graphic] LOCAL GOVERNMENT ACT 1993 - SECT 158 Preparation of draft local policy for approvals 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. LOCAL GOVERNMENT ACT 1993 - SECT 159 Preparation of draft local policy for orders 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. LOCAL GOVERNMENT ACT 1993 - SECT 160 Public notice and exhibition of draft local policy 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. LOCAL GOVERNMENT ACT 1993 - SECT 161 Adoption of draft local policy 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. LOCAL GOVERNMENT ACT 1993 - SECT 162 Director-General’s consent required to exemption from necessity for approval 162 Director-General’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 Director-General’s consent to the adoption of that part. LOCAL GOVERNMENT ACT 1993 - SECT 163 Effect of inconsistency between council’s local policy and this Act or the regulations 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. LOCAL GOVERNMENT ACT 1993 - SECT 164 Local policy not to be more onerous than this Act or the regulations 164 Local policy not to be more onerous than this Act or the regulations (1) If a criterion is prescribed by this Act or the regulations in relation to: (a) a specified aspect of an activity that may be carried out only with the prior approval of the council, or (b) a specified aspect of anything for which an order may be given under Part 2, a local policy adopted under this Part by a council, to the extent to which its provisions impose a more onerous criterion in relation to the specified aspect, is void. (2) However, for the purposes of this section, the imposition of a criterion in a local policy in relation to a specified aspect, does not, in the absence of the prescription by this Act or the regulations of a criterion in relation to that aspect, constitute a more onerous criterion. LOCAL GOVERNMENT ACT 1993 - SECT 165 Amendment and revocation of local policy 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. LOCAL GOVERNMENT ACT 1993 - SECT 166 Public notice of adoption of local policy 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. LOCAL GOVERNMENT ACT 1993 - SECT 167 Public availability of 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. LOCAL GOVERNMENT ACT 1993 - SECT 176 Appeal by an applicant concerning an approval 176 Appeal by an applicant concerning an approval (1) An applicant who is dissatisfied with the determination of a council with respect to the applicant’s application for an approval may appeal to the Land and Environment Court. (2) The appeal must be made within 12 months after: (a) the date endorsed on the notice under section 99 or 100 in respect of the application, or (b) the date on which the application is taken to have been determined under section 105, or (c) the date endorsed on the notice of extension or renewal of the approval if the approval has been extended or renewed under section 107 or the date endorsed on the refusal to extend or renew the approval if extension or renewal of the approval is refused under section 107, as the case requires. LOCAL GOVERNMENT ACT 1993 - SECT 177 Appeal by an applicant as to whether a “deferred commencement” approval operates 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. LOCAL GOVERNMENT ACT 1993 - SECT 178 Appeal against the revocation or modification of an approval 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. LOCAL GOVERNMENT ACT 1993 - SECT 179 Awarding of compensation concerning approvals 179 Awarding of compensation concerning approvals (1) The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to an applicant for an approval for any expense incurred by the person as a consequence of: (a) a council’s refusal to grant the approval, or (b) a council’s delay in granting the approval, if the Court considers that the council would not have acted in the way it did but for the fact that it was unduly influenced by vexatious or unmeritorious submissions made by members of the public or that the council has acted vexatiously. (2) An application for compensation may be made on the hearing of an appeal or by proceedings brought for the purpose of claiming compensation. (3) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on an appeal concerning the application for approval or more than 3 months after the date of the council’s determination of the application if an appeal is not made against the determination. (4) Compensation under this section is to be awarded against the council. Note: The Land and Environment Court has other powers to award compensation under section 677. LOCAL GOVERNMENT ACT 1993 - SECT 180 Appeals concerning orders 180 Appeals concerning orders (1) A person on whom an order is served may appeal against the order to the Land and Environment Court. (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. LOCAL GOVERNMENT ACT 1993 - SECT 181 Awarding of compensation concerning orders 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. LOCAL GOVERNMENT ACT 1993 - SECT 182 Appeals concerning particulars of work submitted to councils 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. LOCAL GOVERNMENT ACT 1993 - SECT 183 Effect of appeal on order 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. LOCAL GOVERNMENT ACT 1993 - SECT 184 Court’s powers not limited by this Division 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 8This Chapter confers on councils certain functions which it is necessary or desirable for them to have in order to carry out their other functions. These functions are “ancillary” in the sense that they are auxiliary to, they give support to, and they aid the carrying out of, the other functions of a council, particularly its service and regulatory functions. Councils are given power to acquire land by compulsory process. The Chapter also confers on councils powers to enter land and buildings and to carry out inspections. A council may also have similar powers for different purposes under other Acts. For example, under the Roads Act 1993, a council has power to compulsorily acquire land for road purposes and may enter land for the purposes of that Act. LOCAL GOVERNMENT ACT 1993 - SECT 186 For what purposes may a council acquire 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. LOCAL GOVERNMENT ACT 1993 - SECT 187 How does a council acquire land? 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. LOCAL GOVERNMENT ACT 1993 - SECT 188 Restriction on compulsory acquisition of land for re-sale 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. LOCAL GOVERNMENT ACT 1993 - SECT 189 No restriction as to area 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. LOCAL GOVERNMENT ACT 1993 - SECT 190 Special provisions relating to land containing minerals 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. LOCAL GOVERNMENT ACT 1993 - SECT 191 Power of entry 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. LOCAL GOVERNMENT ACT 1993 - SECT 191A Power of entry—construction and maintenance of water supply, sewerage and stormwater drainage works 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. LOCAL GOVERNMENT ACT 1993 - SECT 192 Inspections and investigations 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. LOCAL GOVERNMENT ACT 1993 - SECT 193 Notice of entry 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. LOCAL GOVERNMENT ACT 1993 - SECT 194 Use of force 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. LOCAL GOVERNMENT ACT 1993 - SECT 195 Notification of use of force or urgent entry 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, or (b) enters the premises in an emergency without giving written notice to the owner or occupier, must promptly advise the council. (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. LOCAL GOVERNMENT ACT 1993 - SECT 196 Care to be taken 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. LOCAL GOVERNMENT ACT 1993 - SECT 197 Recovery of cost of entry and inspection 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. LOCAL GOVERNMENT ACT 1993 - SECT 198 Compensation 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. LOCAL GOVERNMENT ACT 1993 - SECT 199 Authority to enter premises 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. LOCAL GOVERNMENT ACT 1993 - SECT 200 In what circumstances can entry be made to a residence? 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. LOCAL GOVERNMENT ACT 1993 - SECT 201 Search warrants 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: "authorised officer" has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 9This Chapter contains provisions dealing separately with the constitution of land as a local government area and the constitution of a council to manage that area. It enables the making of changes to those areas and to councils. It provides for the dissolution of councils and the appointment of administrators. Each council is a statutory corporation. The councillors are the governing body of the corporation and they have the responsibility of directing and controlling the affairs of the council in accordance with this Act. The Chapter includes a statement of the role of the mayor and of a councillor. Provision is made for the payment of fees to the mayor and other councillors. Payment is to be made in accordance with determinations of the Local Government Remuneration Tribunal which is established by this Chapter. Provision is also made for the payment of expenses and the provision of facilities to the mayor and other councillors. The Chapter also constitutes the Local Government Boundaries Commission and provides for its functions. LOCAL GOVERNMENT ACT 1993 - SECT 204 Constitution of areas 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. LOCAL GOVERNMENT ACT 1993 - SECT 205 Land taken to be included in an area 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, and (b) those foreshores, is taken to be in the area. (3) Land on the boundary of an area is taken to be in the area if: (a) it is reclaimed from tidal waters, or (b) it is on the foreshores of the area and beyond low- water mark, and it is privately owned or has a structure erected on it. (4) This section is subject to any proclamation made under this Division. LOCAL GOVERNMENT ACT 1993 - SECT 206 Constitution of cities 206 Constitution of cities The Governor may, by proclamation, constitute an area as a city. LOCAL GOVERNMENT ACT 1993 - SECT 207 Names of areas 207 Names of areas The Governor may, by proclamation, name or rename an area. LOCAL GOVERNMENT ACT 1993 - SECT 208 Effect of changing name 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. LOCAL GOVERNMENT ACT 1993 - SECT 210 Division of areas into wards 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. LOCAL GOVERNMENT ACT 1993 - SECT 210A Consultation, public notice and exhibition of proposals regarding ward boundaries 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 subdivisions (within the meaning of the Parliamentary Electorates and Elections Act 1912) 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. LOCAL GOVERNMENT ACT 1993 - SECT 211 Ward boundaries 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, and (b) that difference remains at the end of the first year of the following term of office of the council, the 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 212 Dissolution of areas 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. LOCAL GOVERNMENT ACT 1993 - SECT 213 Facilitating provisions of proclamations 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, 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 senior staff) 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, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things. (3) In this section, "related county council", in relation to an area constituted or dissolved by a proclamation of the Governor for the purposes of this Division, means a county council that has an area of operations that includes the whole or any part of the area so constituted or dissolved. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Division 2This 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. LOCAL GOVERNMENT ACT 1993 - SECT 214 Exercise of functions under sec 204 214 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. LOCAL GOVERNMENT ACT 1993 - SECT 215 Who may initiate a proposal? 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. LOCAL GOVERNMENT ACT 1993 - SECT 216 Public notice to be given of a proposal 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. LOCAL GOVERNMENT ACT 1993 - SECT 217 Making of representations 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. LOCAL GOVERNMENT ACT 1993 - SECT 218 Referral of proposal for examination and report 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, and (b) with such other modifications as the Minister determines, but may not do so if of the opinion that the modifications constitute a new proposal. (3) The Minister may decline to recommend to the Governor that the proposal be implemented. LOCAL GOVERNMENT ACT 1993 - SECT 218A Amalgamation of areas 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. LOCAL GOVERNMENT ACT 1993 - SECT 218B Alteration of boundaries of areas 218B Alteration of boundaries of areas The Governor may, by proclamation, alter the boundaries of one or more areas. LOCAL GOVERNMENT ACT 1993 - SECT 218C Facilitating provisions of proclamations 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 senior staff) 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. LOCAL GOVERNMENT ACT 1993 - SECT 218CA Maintenance of staff numbers in rural centres 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, and (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, but does not include senior staff. "rural centre" has the meaning given by section 354B. LOCAL GOVERNMENT ACT 1993 - SECT 218D Exercise of functions under secs 218A and 218B 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. LOCAL GOVERNMENT ACT 1993 - SECT 218E Who may initiate a proposal? 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. LOCAL GOVERNMENT ACT 1993 - SECT 218F Referral of proposal for examination and report 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 Director-General. (2) Sections 263, 264 and 265 apply to the examination of a proposal by the Director-General 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 Director-General, 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 Director-General 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 Director-General under subsection (1): (a) the Director-General must furnish the Director- General’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 Director-General’s report (and, if applicable, the Boundaries Commission’s comments on that report), and (b) with such other modifications as the Minister determines, but may not do so if of the opinion that the modifications constitute a new proposal. (8) The Minister may decline to recommend to the Governor that the proposal be implemented. LOCAL GOVERNMENT ACT 1993 - SECT 219 Constitution of councils 219 Constitution of councils A council is constituted by this Act for each area. LOCAL GOVERNMENT ACT 1993 - SECT 220 Legal status of a council 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). LOCAL GOVERNMENT ACT 1993 - SECT 221 What is a council’s name? 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. LOCAL GOVERNMENT ACT 1993 - SECT 222 Who comprise the governing body? 222 Who comprise the governing body? The elected representatives, called “councillors”, comprise the governing body of the council. LOCAL GOVERNMENT ACT 1993 - SECT 223 What is the role of the governing body? 223 What is the role of the governing body? The role of the governing body is to direct and control the affairs of the council in accordance with this Act. LOCAL GOVERNMENT ACT 1993 - SECT 224 How many councillors does a council have? 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. LOCAL GOVERNMENT ACT 1993 - SECT 224A Approval to reduce number of councillors 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 21 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 only within the period of 12 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 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. LOCAL GOVERNMENT ACT 1993 - SECT 225 The mayor 225 The mayor An area must have a mayor who is elected in accordance with this Division. LOCAL GOVERNMENT ACT 1993 - SECT 226 What is the role of the mayor? 226 What is the role of the mayor? The role of the mayor is: • to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council • to exercise such other functions of the council as the council determines • to preside at meetings of the council • to carry out the civic and ceremonial functions of the mayoral office. LOCAL GOVERNMENT ACT 1993 - SECT 227 Who elects the mayor? 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. LOCAL GOVERNMENT ACT 1993 - SECT 228 How is it decided that the mayor be elected by the electors? 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. LOCAL GOVERNMENT ACT 1993 - SECT 229 Can the decision be changed? 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. LOCAL GOVERNMENT ACT 1993 - SECT 230 For what period is the mayor elected? 230 For what period is the mayor elected? (1) A mayor elected by the councillors holds the office of mayor for 1 year, 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. LOCAL GOVERNMENT ACT 1993 - SECT 231 Deputy mayor 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. LOCAL GOVERNMENT ACT 1993 - SECT 232 What is the role of a councillor? 232 What is the role of a councillor? (1) The role of a councillor is, as a member of the governing body of the council: • to provide a civic leadership role in guiding the development of the community strategic plan for the area and to be responsible for monitoring the implementation of the council’s delivery program • to direct and control the affairs of the council in accordance with this Act • to participate in the optimum allocation of the council’s resources for the benefit of the area • to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the council’s regulatory functions • to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the council. (2) The role of a councillor is, as an elected person: • to represent the interests of the residents and ratepayers • to provide leadership and guidance to the community • to facilitate communication between the community and the council. LOCAL GOVERNMENT ACT 1993 - SECT 233 For what period is a councillor elected? 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. LOCAL GOVERNMENT ACT 1993 - SECT 234 When does a vacancy occur in a civic office? 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 section 482) 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 (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. LOCAL GOVERNMENT ACT 1993 - SECT 235 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. LOCAL GOVERNMENT ACT 1993 - SECT 236 Assessors 236 Assessors (1) For the purposes of this Part, there are to be 2 assessors: (a) one of whom is to be the Director-General, 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. LOCAL GOVERNMENT ACT 1993 - SECT 237 Provisions relating to the appointment, term of office and remuneration of the Remuneration Tribunal and 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. LOCAL GOVERNMENT ACT 1993 - SECT 238 Functions of the Remuneration Tribunal 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. LOCAL GOVERNMENT ACT 1993 - SECT 239 Categorisation of councils and mayoral offices 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. LOCAL GOVERNMENT ACT 1993 - SECT 240 How are the categories to be determined? 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. LOCAL GOVERNMENT ACT 1993 - SECT 241 Determination of fees 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. LOCAL GOVERNMENT ACT 1993 - SECT 242 Special determinations 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. LOCAL GOVERNMENT ACT 1993 - SECT 243 Inquiries 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. LOCAL GOVERNMENT ACT 1993 - SECT 244 Reports of the Remuneration Tribunal 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. LOCAL GOVERNMENT ACT 1993 - SECT 245 Publication and tabling of reports 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. LOCAL GOVERNMENT ACT 1993 - SECT 246 Effect of determination 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. LOCAL GOVERNMENT ACT 1993 - SECT 247 Assistance for the Remuneration Tribunal 247 Assistance for the Remuneration Tribunal The Minister is to make available to the Remuneration Tribunal such persons employed under Part 2 of the Public Sector Management Act 1988 as may be necessary to assist the Remuneration Tribunal in the exercise of the Remuneration Tribunal’s functions. LOCAL GOVERNMENT ACT 1993 - SECT 248 Fixing and payment of annual fees for 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. LOCAL GOVERNMENT ACT 1993 - SECT 248A Annual fees or other remuneration not to be paid during period of suspension 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, 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, or (b) the councillor’s right to be paid any fee or other remuneration is suspended under this Act, unless 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. LOCAL GOVERNMENT ACT 1993 - SECT 249 Fixing and payment of annual fees for the mayor 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. LOCAL GOVERNMENT ACT 1993 - SECT 250 At what intervals are fees to be paid? 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. LOCAL GOVERNMENT ACT 1993 - SECT 251 What is the consequence of paying fees? 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. LOCAL GOVERNMENT ACT 1993 - SECT 252 Payment of expenses and provision of facilities 252 Payment of expenses and provision of facilities (1) Within 5 months after the end of each year, a 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. LOCAL GOVERNMENT ACT 1993 - SECT 253 Requirements before policy concerning expenses and facilities can be adopted or amended 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) Within 28 days after adopting a policy or making an amendment to a policy for which public notice is required to be given under this section, a council is to forward to the Director-General: (a) a copy of the policy or amendment together with details of all submissions received in accordance with subsection (1), and (b) a statement setting out, for each submission, the council’s response to the submission and the reasons for the council’s response, and (c) a copy of the notice given under subsection (1). (5) A council must comply with this section when proposing to adopt a policy each year in accordance with section 252 (1) even if the council proposes to adopt a policy that is the same as its existing policy. LOCAL GOVERNMENT ACT 1993 - SECT 254 Decision to be made in open meeting 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. LOCAL GOVERNMENT ACT 1993 - SECT 254A Circumstances in which annual fees may be withheld 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. Section 428 (2) (f) requires a council to include, in its annual report: • the total amount of money expended during the year on mayoral fees and councillor fees • the council’s policy on the provision of facilities for, and the payment of expenses to, councillors • the total amount of money expended during the year on providing those facilities and paying those expenses. (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. LOCAL GOVERNMENT ACT 1993 - SECT 255 Governor may dismiss mayor and councillors 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) after considering the results of the inquiry, the Minister has recommended that the Governor make such a declaration. (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. LOCAL GOVERNMENT ACT 1993 - SECT 256 Governor may appoint administrator or order fresh election 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, or (b) to order the holding of a fresh council election, or both. (2) The Governor may, by those or other proclamations, make such further orders as the Minister recommends are necessary in the circumstances. LOCAL GOVERNMENT ACT 1993 - SECT 257 Declaration of council as non-functioning 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 under section 255 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. LOCAL GOVERNMENT ACT 1993 - SECT 258 The administrator 258 The administrator (1) When the administrator of a council 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 until immediately before the first meeting of the council held after the fresh election. (2) The administrator must be paid a salary from the council’s funds determined by the Governor. (3) The Governor may terminate the administrator’s appointment at any time. (4) The 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. LOCAL GOVERNMENT ACT 1993 - SECT 259 Temporary exercise of the council’s functions 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. LOCAL GOVERNMENT ACT 1993 - SECT 260 Constitution of the 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. LOCAL GOVERNMENT ACT 1993 - SECT 261 Membership of 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 an officer of the Department nominated by the Director-General, 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. LOCAL GOVERNMENT ACT 1993 - SECT 262 How is a panel to be constituted for the purposes of making an appointment as a commissioner? 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, 4 of whom are councillors nominated by the executive of the Local Government Association of New South Wales and 4 of whom are councillors nominated by the executive of the 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. LOCAL GOVERNMENT ACT 1993 - SECT 263 Functions of the Boundaries Commission 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, and (b) must hold an inquiry if the Minister so directs, but may not hold an inquiry otherwise than as referred to in paragraph (a) or (b). (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. LOCAL GOVERNMENT ACT 1993 - SECT 264 Can a person be represented in proceedings before the Boundaries Commission? 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. LOCAL GOVERNMENT ACT 1993 - SECT 265 Boundaries Commission may conduct survey or poll 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 10This Chapter deals with the election of persons to civic office. Those qualified for civic office are elected for 4-year terms under a system which is preferential (wherever 1 or 2 positions must be filled) and proportional (wherever 3 or more positions must be filled). Voting is compulsory for residents but optional for non-resident ratepayers, occupiers and ratepaying lessees. Elections are conducted under the supervision of the Electoral Commissioner. When an area is not divided into wards, councillors are elected by the area. When it is divided, councillors may be elected by wards (or, if so decided at a referendum, by wards and area). The mayor may be popularly elected or elected by the councillors from among their number. The choice of method depends on a constitutional referendum as referred to in sections 228 and 229. A popularly-elected mayor holds office for 4 years and is a councillor by virtue of being mayor. A mayor elected by the councillors holds office for 1 year. In each case, the mayor votes as mayor, not as a councillor, at council meetings. (See Chapter 9.) LOCAL GOVERNMENT ACT 1993 - SECT 266 Who has the right to be enrolled as an elector? 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) A person who is disqualified by section 21 of the Parliamentary Electorates and Elections Act 1912 from having his or her name placed or retained on a roll under that Act is subject to the same disqualification in relation to a roll under this Act. LOCAL GOVERNMENT ACT 1993 - SECT 267 Who has the right to vote? 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, and (c) ceases to be qualified in respect of that parcel, is 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 268 One vote per elector 268 One vote per elector Nothing in this Chapter entitles a person to more than one vote in one area in an election. 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. LOCAL GOVERNMENT ACT 1993 - SECT 269 Who is a “resident” for the purposes of this Part? 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: (a) the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the relevant date on the roll for an electoral district, and (b) the person’s place of living as described on that roll is in the ward or (in the case of a person whose place of living is not described on that roll) the person’s place of living is in the ward. (2) 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 residents of the ward, or (b) the closing date for the election referred to in Part 4, if the claim is for the purpose of voting at the election. (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. LOCAL GOVERNMENT ACT 1993 - SECT 270 Who is an “owner of rateable land” for the purposes of this Part? 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 (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 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. LOCAL GOVERNMENT ACT 1993 - SECT 271 Who is an “occupier” or “ratepaying lessee” for the purposes of this Part? 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. LOCAL GOVERNMENT ACT 1993 - SECT 272 Competing claimants 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. LOCAL GOVERNMENT ACT 1993 - SECT 273 Application of Part to area not divided into wards 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. LOCAL GOVERNMENT ACT 1993 - SECT 274 What are the qualifications for civic office? 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). LOCAL GOVERNMENT ACT 1993 - SECT 275 Who is disqualified from holding civic office? 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 (b) while a judge of any court of the State or the Commonwealth, or (c) while serving a sentence (whether or not by way of periodic detention) 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 5 years before nomination for election, election or appointment to the office, convicted of an offence referred to in Part 4 of the Crimes Act 1900 (Offences relating to property), 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. (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 Administrative Decisions 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. Note: If a person while holding civic office becomes subject to disqualification under this section, the office becomes vacant under section 234. LOCAL GOVERNMENT ACT 1993 - SECT 276 What is the effect of disqualification? 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. LOCAL GOVERNMENT ACT 1993 - SECT 277 May the holder of a civic office be re-elected? 277 May the holder of a civic office be re-elected? The holder of a civic office is eligible for re-election, subject to this Act. LOCAL GOVERNMENT ACT 1993 - SECT 278 Election of councillors for an area not divided into wards 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. LOCAL GOVERNMENT ACT 1993 - SECT 279 Alternative methods for election of councillors for an area divided into wards 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. LOCAL GOVERNMENT ACT 1993 - SECT 280 Ward election of councillors—method 1 280 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. LOCAL GOVERNMENT ACT 1993 - SECT 281 Election of councillors partly by wards, partly by area—method 2 281 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. LOCAL GOVERNMENT ACT 1993 - SECT 282 Election of mayor 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. LOCAL GOVERNMENT ACT 1993 - SECT 283 Double candidature 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. LOCAL GOVERNMENT ACT 1993 - SECT 284 Voting system for election of the mayor by all the electors of the area 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. LOCAL GOVERNMENT ACT 1993 - SECT 285 Voting system for election of councillors 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 the number of councillors to be elected is 1 or 2, or (b) proportional, if the number of councillors to be elected is 3 or more. LOCAL GOVERNMENT ACT 1993 - SECT 286 Is voting compulsory? 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. LOCAL GOVERNMENT ACT 1993 - SECT 287 When is an ordinary election of councillors 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) all civic offices in relation to the council of the area are declared to be vacant under section 255, or (c) the council is declared to be non-functioning under section 257. LOCAL GOVERNMENT ACT 1993 - SECT 288 Delayed elections of councillors 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. LOCAL GOVERNMENT ACT 1993 - SECT 289 When is an election of a mayor by the electors to be 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. LOCAL GOVERNMENT ACT 1993 - SECT 290 When is an election of a mayor by the councillors to be held? 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. Note: The filling of a casual vacancy in the office of a mayor elected by the councillors is dealt with in section 295. LOCAL GOVERNMENT ACT 1993 - SECT 291 By-elections 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. LOCAL GOVERNMENT ACT 1993 - SECT 292 When is a by-election to be held? 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 is fixed by the Electoral Commissioner and that falls not later than 3 months after the vacancy occurs. LOCAL GOVERNMENT ACT 1993 - SECT 293 Delayed by-elections 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. LOCAL GOVERNMENT ACT 1993 - SECT 294 Dispensing with by-elections 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, on or after 1 October last preceding the end of the term of a council. (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. LOCAL GOVERNMENT ACT 1993 - SECT 294A Casual vacancy not to be filled where councillor numbers reduced 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. LOCAL GOVERNMENT ACT 1993 - SECT 295 Casual vacancy in office of mayor elected by the councillors 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. LOCAL GOVERNMENT ACT 1993 - SECT 296 Elections to be conducted by the Electoral Commissioner 296 Elections to be conducted by the Electoral Commissioner (1) The Electoral Commissioner is to conduct elections for the purposes of this Chapter, other than the election of the mayor or a deputy mayor by the councillors. (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) Expenses incurred by the Electoral Commissioner, returning officer, substitute returning officer and electoral officials in connection with an election are to be met by the council for which it is conducted and are recoverable from the council as a debt owed to the Electoral Commissioner as the holder of that office. (8) The Electoral Commissioner, the returning officer and the substitute returning officer must not vote at any election which they are conducting. LOCAL GOVERNMENT ACT 1993 - SECT 297 Delegation of functions by the Electoral Commissioner 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Division 2The roll of electors for an area is prepared in time for each election. The roll of electors is a composite roll based on the residential roll, the non-residential roll and the roll of occupiers and ratepaying lessees. The residential roll is a roll of residents in the area, whether or not they own the property where they reside. It is prepared and confirmed by the Electoral Commissioner in time for each election. It may be based on the same roll as the one used for State and Federal elections. The non-residential roll is a roll of persons who pay rates on property they own in an area but who do not live on that property. It is prepared by the general manager of the council for the area and confirmed by the Electoral Commissioner in time for each election. The roll of occupiers and ratepaying lessees covers both occupiers of rateable land who are not owners, and lessees who, under the terms of their leases, must pay rates. It is prepared for a specific election by the general manager and includes only those who actually apply for inclusion on this roll. It is confirmed by the Electoral Commissioner. LOCAL GOVERNMENT ACT 1993 - SECT 298 Residential roll 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 the roll used for elections of the Legislative Assembly or for Commonwealth elections as a basis for the residential roll. (3) The Electoral Commissioner is to confirm as the residential roll for an election the roll referred to in subsection (1) if, in the Commissioner’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the residential roll as electors. LOCAL GOVERNMENT ACT 1993 - SECT 299 Non-residential roll 299 Non-residential roll (1) Not later than the closing date for an election, the general manager is to prepare a roll of non-resident owners of rateable land for confirmation by the Electoral Commissioner as the roll of non- resident owners of rateable land within the area. (2) The roll of non-resident owners of rateable land lapses after the election for which it is prepared, and it consists only of the names of those non-resident owners of rateable land who have applied for the inclusion of their names for the purposes of the election for which it is being prepared. (3) 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. LOCAL GOVERNMENT ACT 1993 - SECT 300 Roll of occupiers and ratepaying lessees 300 Roll of occupiers and ratepaying lessees (1) Not later than the closing date for an election, the general manager is to prepare the roll of occupiers and ratepaying lessees for confirmation by the Electoral Commissioner as the roll of occupiers (of land within the area) and ratepaying lessees (of rateable land within the area) for the election. (2) The roll of occupiers and ratepaying lessees lapses after the election for which it is prepared, and it consists only of the names of those occupiers and ratepaying lessees who have applied for the inclusion of their names for the purpose of the election for which it is being prepared. (3) 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. LOCAL GOVERNMENT ACT 1993 - SECT 301 Roll of electors 301 Roll of electors (1) The roll of electors for an area is a composite roll, consisting of the residential roll kept and confirmed 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, the roll of electors is to be compiled in accordance with this Division and printed in the form prescribed by the regulations. (3) If an area is divided into wards, the roll of electors is to be prepared separately for each ward or, if 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. LOCAL GOVERNMENT ACT 1993 - SECT 302 Public inspection of roll of electors 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. LOCAL GOVERNMENT ACT 1993 - SECT 303 Making of claims for inclusion in the roll 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 Administrative Decisions Tribunal for a review 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 Administrative Decisions Tribunal. (5) Despite this section, the roll of electors is not to be altered between the closing date for an election and the end of polling day. LOCAL GOVERNMENT ACT 1993 - SECT 304 Enrolment if qualified in more than one respect 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. LOCAL GOVERNMENT ACT 1993 - SECT 305 Can an elector vote if his or her name is not on the roll of electors? 305 Can an elector vote if his or her name is not on the roll of electors? An elector for an area: (a) whose name is not on the roll of electors for an election, and (b) who claims to be entitled to vote at the election, and (c) who makes a declaration in the form prescribed by the regulations that is written or printed on an envelope that is addressed to the returning officer, is to be given a ballot-paper by the returning officer or electoral official in charge of a polling place and permitted to vote in accordance with this Act. Note: A person may apply under section 739 for the omission of the person’s place of living from a roll. LOCAL GOVERNMENT ACT 1993 - SECT 306 Nominations 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 under the Parliamentary Electorates and Elections Act 1912 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, and (b) has lodged a claim under section 308A (2), the 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. (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. LOCAL GOVERNMENT ACT 1993 - SECT 307 Nomination where name omitted from roll 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. LOCAL GOVERNMENT ACT 1993 - SECT 308 Candidate information sheets 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. LOCAL GOVERNMENT ACT 1993 - SECT 308A Grouping of candidates 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. LOCAL GOVERNMENT ACT 1993 - SECT 308B Group voting—recording of votes 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. LOCAL GOVERNMENT ACT 1993 - SECT 308C Group voting—marking of ballot-papers 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. LOCAL GOVERNMENT ACT 1993 - SECT 308D Group voting—regulations 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. LOCAL GOVERNMENT ACT 1993 - SECT 309 Contested elections 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. LOCAL GOVERNMENT ACT 1993 - SECT 310 Conduct of contested elections 310 Conduct of contested elections A contested election for a civic office is to be conducted as prescribed by the regulations. LOCAL GOVERNMENT ACT 1993 - SECT 310A Postal votes 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 6 pm on the first business day immediately following the close of the poll, 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. LOCAL GOVERNMENT ACT 1993 - SECT 311 Uncontested elections 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. LOCAL GOVERNMENT ACT 1993 - SECT 312 Offence 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. LOCAL GOVERNMENT ACT 1993 - SECT 313 List of residents failing to vote 313 List of residents failing to vote After the close of the poll at a contested election, the Electoral Commissioner is to prepare a list of the names of the persons on the residential roll for the election 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. LOCAL GOVERNMENT ACT 1993 - SECT 314 Penalty notice to be issued for failure to vote 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 (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. LOCAL GOVERNMENT ACT 1993 - SECT 315 Evidence in list of non-voters 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, or (c) that a reason was given for a failure by a resident to vote at an election, but the reason was insufficient, if there is on a certified list a notation to that effect in relation to the resident. (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). LOCAL GOVERNMENT ACT 1993 - SECT 316 Position on ballot-paper 316 Position on ballot-paper The order of candidates’ names on ballot-papers is to be determined by a ballot conducted as prescribed by the regulations. LOCAL GOVERNMENT ACT 1993 - SECT 317 Validity of elections 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 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. LOCAL GOVERNMENT ACT 1993 - SECT 318 Lapsed or void election 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. LOCAL GOVERNMENT ACT 1993 - SECT 318A Definition 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. LOCAL GOVERNMENT ACT 1993 - SECT 318B Postponement of elections 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: (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. LOCAL GOVERNMENT ACT 1993 - SECT 318C Revocation of postponement 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, or (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, appoint a day as the day on which the election is to be held. (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. LOCAL GOVERNMENT ACT 1993 - SECT 319 Local Government Register of 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. LOCAL GOVERNMENT ACT 1993 - SECT 320 Registration of political parties 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 4A of the Parliamentary Electorates and Elections Act 1912, 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 4A of the Parliamentary Electorates and Elections Act 1912, 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 66C, 66D (3), 66FA (2), 66H (3A), 66JA and 66N of that Act are to be disregarded, (g) the reference in section 66FA (1) (a) of that Act to Division 6B of Part 5 of that Act is a reference to section 321 of this Act, (g1) the reference in section 66FA (1) (b) of that Act to sections 79 and 81B of that Act is a reference to any regulations under this Act regarding a political party proposing a candidate for nomination, (g2) the reference in section 66FA (1) (c) of that Act to section 151G 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. LOCAL GOVERNMENT ACT 1993 - SECT 321 Party endorsement on ballot-papers 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. LOCAL GOVERNMENT ACT 1993 - SECT 322 Independent candidate on ballot-papers 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. LOCAL GOVERNMENT ACT 1993 - SECT 323 Printing of political party name on ballot-papers 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. LOCAL GOVERNMENT ACT 1993 - SECT 324 Form of political party name on ballot-papers 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. LOCAL GOVERNMENT ACT 1993 - SECT 328A General manager to keep register of political donation disclosures 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 Election Funding Authority 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 6 of the Election Funding and Disclosures Act 1981 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 6 of the Election Funding and Disclosures Act 1981 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. LOCAL GOVERNMENT ACT 1993 - SECT 328B Reference by general manager to Director-General of political donation matters 328B Reference by general manager to Director-General 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 Director-General. (2) Any such matter may be referred by the Director-General to the Pecuniary Interest and Disciplinary Tribunal. (3) Any such matter is taken (for the purposes of this Act) to be referred to the Tribunal under section 440N (but a referral under this section may be made without the councillor concerned having previously been suspended for misbehaviour). LOCAL GOVERNMENT ACT 1993 - SECT 329 Can the holder of a civic office be dismissed? 329 Can the holder of a civic office be dismissed? (1) Any person may apply to the Administrative Decisions 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 Pecuniary Interest and Disciplinary Tribunal under section 482 or by a decision of the Governor under section 440B. (6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part. LOCAL GOVERNMENT ACT 1993 - SECT 330 Appeals to Supreme Court against dismissal order 330 Appeals to Supreme Court against dismissal order (1) A person against whom an order of dismissal is made by the Tribunal may appeal against the order, on a question of law, to the Supreme Court. (2) Such an appeal may not be made more than 28 days after the date on which the order of dismissal is made. LOCAL GOVERNMENT ACT 1993 - SECT 331 When does an order of dismissal take effect? 331 When does an order of dismissal take effect? An order of dismissal made by the Tribunal takes effect: (a) if no appeal to the Supreme Court is made 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. LOCAL GOVERNMENT ACT 1993 - NOTES Note to Chapter 11The Chapter provides for the employment of staff to assist councils to exercise their functions. A council should have sufficient and appropriately qualified staff for the efficient and effective management of its organisation. The Chapter includes provision for the appointment by each council of a general manager and other senior staff and of a “public officer”. Some requirements concerning employment of staff are contained in other law (for example, industrial relations legislation). LOCAL GOVERNMENT ACT 1993 - SECT 332 Determination of structure 332 Determination of structure (1) A council must determine: • an organisation structure • those positions within the organisation structure that are senior staff positions • the resources to be allocated towards the employment of staff. (2) A council may not determine a position to be a senior staff position unless: (a) the responsibilities, skills and accountabilities of the position are generally equivalent to those applicable to the Executive Band of the Local Government (State) Award, and (b) the total remuneration package payable with respect to the position is equal to or greater than the minimum remuneration package (within the meaning of Part 3A of the Statutory and Other Offices Remuneration Act 1975) payable with respect to senior executive office holders whose positions are graded Level 1 (General Management). (3) For the purposes of subsection (2) (b), the total remuneration package payable with respect to a position within a council’s organisation structure includes: (a) the total value of the salary component of the package, and (b) the total amount payable by the council by way of the employer’s contribution to any superannuation scheme to which the holder of the position may be a contributor, and (c) the total value of any non-cash benefits for which the holder of the position may elect under the package, and (d) the total amount payable by the council by way of fringe benefits tax for any such non-cash benefits. LOCAL GOVERNMENT ACT 1993 - SECT 333 Re-determination of structure 333 Re-determination of structure The organisation structure may be re-determined by the council from time to time. It must be re-determined within 12 months after any ordinary election of the council. LOCAL GOVERNMENT ACT 1993 - SECT 334 Appointment of general manager 334 Appointment of general manager (1) A council must appoint a person to be its general manager. The person must not be a body corporate. (2) The position of general manager is a senior staff position. LOCAL GOVERNMENT ACT 1993 - SECT 335 Functions of general manager 335 Functions of general manager (1) The general manager is generally responsible for the efficient and effective operation of the council’s organisation and for ensuring the implementation, without undue delay, of decisions of the council. (2) The general manager has the following particular functions: • to assist the council in connection with the development and implementation of the community strategic plan and the council’s resourcing strategy, delivery program and operational plan and the preparation of its annual report and state of the environment report • the day-to-day management of the council • to exercise such of the functions of the council as are delegated by the council to the general manager • to appoint staff in accordance with an organisation structure and resources approved by the council • to direct and dismiss staff • to implement the council’s equal employment opportunity management plan. (3) The general manager has such other functions as may be conferred or imposed on the general manager by or under this or any other Act. LOCAL GOVERNMENT ACT 1993 - SECT 336 Filling of vacancy in position of general manager 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. LOCAL GOVERNMENT ACT 1993 - SECT 337 Council to be consulted as to appointment and dismissal of senior staff 337 Council to be consulted as to appointment and dismissal of senior staff The general manager may appoint or dismiss senior staff only after consultation with the council. LOCAL GOVERNMENT ACT 1993 - SECT 338 Nature of contracts for senior staff 338 Nature of contracts for senior staff (1) The general manager and other senior staff of a council are to be employed under contracts that are 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 Director-General may, by order in writing, approve one or more standard forms of contract for the employment of the general manager or other senior staff of a council. (5) A standard form of contract approved by the Director-General is not to include provisions relating to the level of remuneration or salary (including employment benefits) of the general manager or other senior staff 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 or another member of the senior staff 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 or another member of the senior staff 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. LOCAL GOVERNMENT ACT 1993 - SECT 339 Annual reporting of contracts for senior staff 339 Annual reporting of contracts for senior staff The general manager must, at least once annually, report to the council on the contractual conditions of senior staff. LOCAL GOVERNMENT ACT 1993 - SECT 340 Industrial arbitration excluded 340 Industrial arbitration excluded (1) In this section, a reference to the employment of the general manager or another senior staff member is a reference to: (a) the appointment of, or failure to appoint, a person to the vacant position of general manager or to another vacant senior staff position, 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 another senior staff member, 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 or another vacant senior staff position. (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 senior staff members. (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 or to another senior staff position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. LOCAL GOVERNMENT ACT 1993 - SECT 341 Duty to report bankruptcy 341 Duty to report bankruptcy (1) If a person who is a senior staff member becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the person’s creditors, the person must: (a) immediately give notice of the bankruptcy, composition, arrangement or assignment to the general manager, and (b) provide the general manager, within the time specified by the general manager, with any further information concerning the cause of the bankruptcy or of the making of the composition, arrangement or assignment required by the general manager. (2) If the person is the general manager, subsection (1) applies as if references to the general manager were references to the council. LOCAL GOVERNMENT ACT 1993 - SECT 342 Appointment of 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) The position of public officer may, but need not be, a senior staff position. LOCAL GOVERNMENT ACT 1993 - SECT 343 Functions of the public officer 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. LOCAL GOVERNMENT ACT 1993 - SECT 344 Objects 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 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. LOCAL GOVERNMENT ACT 1993 - SECT 345 Preparation and implementation of EEO management plans 345 Preparation and implementation of EEO management plans (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. LOCAL GOVERNMENT ACT 1993 - SECT 346 Inconsistencies with the Anti-Discrimination Act 1977 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 Director of Equal Opportunity in Public Employment. 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. LOCAL GOVERNMENT ACT 1993 - SECT 347 References 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 Director of Equal Opportunity in Public Employment. (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. LOCAL GOVERNMENT ACT 1993 - SECT 348 Advertising of staff positions 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) If the position is a senior staff position, the requirement of this section is satisfied if the position is advertised at least twice in a daily newspaper circulating throughout the State. (3) This section does not apply to: (a) the re-appointment, under a new contract, of a senior staff member, 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. LOCAL GOVERNMENT ACT 1993 - SECT 349 Appointments to be on merit 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). LOCAL GOVERNMENT ACT 1993 - SECT 350 Appointments to which secs 348 and 349 do not apply 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. LOCAL GOVERNMENT ACT 1993 - SECT 351 Temporary appointments 351 Temporary appointments (1) If a position (including a senior staff 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, or (b) the general manager, in the case of any other position, may appoint a person to the position temporarily. (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. LOCAL GOVERNMENT ACT 1993 - SECT 352 Independence of staff for certain purposes 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. LOCAL GOVERNMENT ACT 1993 - SECT 353 Other work 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). LOCAL GOVERNMENT ACT 1993 - SECT 354 Restriction on appointment of a former mayor or councillor 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. LOCAL GOVERNMENT ACT 1993 - SECT 354A Ministerial approval for certain termination payments to senior staff 354A Ministerial approval for certain termination payments to senior staff (1) A council must not make a payment to the general manager or other senior staff member 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. LOCAL GOVERNMENT ACT 1993 - SECT 354B Definitions 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 Director-General 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. LOCAL GOVERNMENT ACT 1993 - SECT 354C No forced redundancy of affected staff members during proposal period 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 senior staff member) must not be terminated, without the staff member’s agreement, during the proposal period on the ground of redundancy. LOCAL GOVERNMENT ACT 1993 - SECT 354D Preservation of entitlements of staff members 354D Preservation of entitlements of staff members (1) If a staff transfer occurs, the employment of: (a) a transferred staff member, and (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, other than a senior staff member, continues on the same terms and conditions that applied to the staff member immediately before the transfer day, subject to section 354E. (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. LOCAL GOVERNMENT ACT 1993 - SECT 354E Certain increases or decreases in staff entitlements during proposal period not binding on transferee council without approval 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, and (b) any such determination is to be disregarded for the purposes of section 354D (1), unless the determination has been approved by the Minister under this section or the approval of the Minister is not required under this section. (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. LOCAL GOVERNMENT ACT 1993 - SECT 354F No forced redundancy of non-senior staff members for 3 years after transfer 354F No forced redundancy of non-senior staff members for 3 years after transfer If a staff transfer occurs, the employment of: (a) a transferred staff member, and (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, other than a senior staff member, 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. LOCAL GOVERNMENT ACT 1993 - SECT 354G Lateral transfer of non-senior staff members 354G Lateral transfer of non-senior 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"), other than a senior staff position, and (iii) a transferred staff member (other than a senior 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, other than a senior staff position, and (iii) a staff member (other than a senior 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, and (c) is a person referred to in subsection (1) (a) (iii) or (b) (iii), as the case requires, must be considered for appointment to the position in preference to any other applicant for the position who is not such a person. (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. LOCAL GOVERNMENT ACT 1993 - SECT 354H External advertising not required in certain circumstances 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"), other than a senior staff position, and (iii) the general manager is satisfied that one or more of the transferred staff members (other than a senior staff member) 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, other than a senior staff position, and (iii) the general manager is satisfied that one or more of the staff members (other than a senior staff member) 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. LOCAL GOVERNMENT ACT 1993 - SECT 354I Limitations on transfer of work base of non-senior staff 354I Limitations on transfer of work base of non-senior staff (1) This section applies, where a staff transfer occurs, to: (a) a transferred staff member, and (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, other than a senior staff member. (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