Local Government Act 1993 (NSW)

Local Government Act 1993 No 30 An Act to provide for local government in New South Wales. Chapter 1 Preliminary 1 Name of Act This Act may be cited as the Local Government Act 1993. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions Expressions used in this Act (or in a particular provision of this Act) which are defined in the dictionary at the end of this Act have the meanings set out in the dictionary. 4 Does this Act bind the Crown? This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities, except to the extent to which this Act otherwise provides. Note. Particular provisions relating to the Crown are found in the following sections— • sections 72–74—concerning determination of Crown applications for approvals • section 111—concerning revocation or modification of approvals given to the Crown • section 126—concerning the giving of orders affecting Crown land (including Crown managed land) and commons • sections 555 and 561—concerning rates and charges on land owned by the Crown • section 560—concerning the liability to pay rates in respect of land owned by the Crown • section 611—concerning the imposition of an annual charge for certain things on, under or over public places • section 708—service of notices on the Crown • section 714—prohibition on sale of Crown lands for unpaid rates and charges 5 To what parts of the State does this Act apply? This Act applies to those parts of the State that are constituted as areas for the purposes of this Act, except as provided by or under this Act. Note. This Act does not apply to the whole of New South Wales. Some parts of the State do not come within a local government area. For example, parts of the Western Division of the State (to which the Crown Land Management Act 2016 applies) and Lord Howe Island (to which the Lord Howe Island Act 1953 applies) are not subject to this Act. Some local government areas or parts may not be subject to this Act (or to all of its provisions) because of special statutory exceptions. Other exceptions may be provided by regulations made under this Act. 6 Notes in the text Notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding. Chapter 2 What are the purposes of this Act? 7 Purposes of Act The purposes of this Act are as follows— (a) to provide the legal framework for the system of local government for New South Wales, (b) to set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government, (c) to provide for governing bodies of councils that are democratically elected, (d) to facilitate engagement with the local community by councils, councillors and other persons and bodies that constitute the system of local government, (e) to provide for a system of local government that is accountable to the community and that is sustainable, flexible and effective. The system of local government in New South Wales Chapter 3 Principles for local government 8 Object of principles The object of the principles for councils set out in this Chapter is to provide guidance to enable councils to carry out their functions in a way that facilitates local communities that are strong, healthy and prosperous. 8A Guiding principles for councils (1) Exercise of functions generally The following general principles apply to the exercise of functions by councils— (a) Councils should provide strong and effective representation, leadership, planning and decision-making. (b) Councils should carry out functions in a way that provides the best possible value for residents and ratepayers. (c) Councils should plan strategically, using the integrated planning and reporting framework, for the provision of effective and efficient services and regulation to meet the diverse needs of the local community. (d) Councils should apply the integrated planning and reporting framework in carrying out their functions so as to achieve desired outcomes and continuous improvements. (e) Councils should work co-operatively with other councils and the State government to achieve desired outcomes for the local community. (f) Councils should manage lands and other assets so that current and future local community needs can be met in an affordable way. (g) Councils should work with others to secure appropriate services for local community needs. (h) Councils should act fairly, ethically and without bias in the interests of the local community. (i) Councils should be responsible employers and provide a consultative and supportive working environment for staff. (2) Decision-making The following principles apply to decision-making by councils (subject to any other applicable law)— (a) Councils should recognise diverse local community needs and interests. (b) Councils should consider social justice principles. (c) Councils should consider the long term and cumulative effects of actions on future generations. (d) Councils should consider the principles of ecologically sustainable development. (e) Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions. (3) Community participation Councils should actively engage with their local communities, through the use of the integrated planning and reporting framework and other measures. 8B Principles of sound financial management The following principles of sound financial management apply to councils— (a) Council spending should be responsible and sustainable, aligning general revenue and expenses. (b) Councils should invest in responsible and sustainable infrastructure for the benefit of the local community. (c) Councils should have effective financial and asset management, including sound policies and processes for the following— (i) performance management and reporting, (ii) asset maintenance and enhancement, (iii) funding decisions, (iv) risk management practices. (d) Councils should have regard to achieving intergenerational equity, including ensuring the following— (i) policy decisions are made after considering their financial effects on future generations, (ii) the current generation funds the cost of its services. 8C Integrated planning and reporting principles that apply to councils The following principles for strategic planning apply to the development of the integrated planning and reporting framework by councils— (a) Councils should identify and prioritise key local community needs and aspirations and consider regional priorities. (b) Councils should identify strategic goals to meet those needs and aspirations. (c) Councils should develop activities, and prioritise actions, to work towards the strategic goals. (d) Councils should ensure that the strategic goals and activities to work towards them may be achieved within council resources. (e) Councils should regularly review and evaluate progress towards achieving strategic goals. (f) Councils should maintain an integrated approach to planning, delivering, monitoring and reporting on strategic goals. (g) Councils should collaborate with others to maximise achievement of strategic goals. (h) Councils should manage risks to the local community or area or to the council effectively and proactively. (i) Councils should make appropriate evidence-based adaptations to meet changing needs and circumstances. Chapter 4 How can the community influence what a council does? Part 1 Open meetings 9 Public notice of meetings (1) A council must give notice to the public of the times and places of its meetings and meetings of those of its committees of which all the members are councillors. (2) A council and each such committee must have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting. (2A) In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public— (a) the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item), and (b) the requirements of subsection (2) with respect to the availability of business papers do not apply to the business papers for that item of business. (3) The copies are to be available to the public as nearly as possible to the time they are available to councillors. (4) The copies are to be available free of charge. (5) A notice given under this section or a copy of an agenda or of a business paper made available under this section may in addition be given or made available in electronic form. 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. 10A Which parts of a meeting can be closed to the public? (1) A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises— (a) the discussion of any of the matters listed in subclause (2), or (b) the receipt or discussion of any of the information so listed. (2) The matters and information are the following— (a) personnel matters concerning particular individuals (other than councillors), (b) the personal hardship of any resident or ratepayer, (c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business, (d) commercial information of a confidential nature that would, if disclosed— (i) prejudice the commercial position of the person who supplied it, or (ii) confer a commercial advantage on a competitor of the council, or (iii) reveal a trade secret, (e) information that would, if disclosed, prejudice the maintenance of law, (f) matters affecting the security of the council, councillors, council staff or council property, (g) advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege, (h) information concerning the nature and location of a place or an item of Aboriginal significance on community land, (i) alleged contraventions of any code of conduct requirements applicable under section 440. (3) A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public. (4) A council, or a committee of a council, may allow members of the public to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed. (5), (6) (Repealed) 10B Further limitations relating to closure of parts of meetings to public (1) A meeting is not to remain closed during the discussion of anything referred to in section 10A(2)— (a) except for so much of the discussion as is necessary to preserve the relevant confidentiality, privilege or security, and (b) if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret—unless the council or committee concerned is satisfied that discussion of the matter in an open meeting would, on balance, be contrary to the public interest. (2) A meeting is not to be closed during the receipt and consideration of information or advice referred to in section 10A(2)(g) unless the advice concerns legal matters that— (a) are substantial issues relating to a matter in which the council or committee is involved, and (b) are clearly identified in the advice, and (c) are fully discussed in that advice. (3) If a meeting is closed during the discussion of a motion to close another part of the meeting to the public (as referred to in section 10A(3)), the consideration of the motion must not include any consideration of the matter or information to be discussed in that other part of the meeting (other than consideration of whether the matter concerned is a matter referred to in section 10A(2)). (4) For the purpose of determining whether the discussion of a matter in an open meeting would be contrary to the public interest, it is irrelevant that— (a) a person may misinterpret or misunderstand the discussion, or (b) the discussion of the matter may— (i) cause embarrassment to the council or committee concerned, or to councillors or to employees of the council, or (ii) cause a loss of confidence in the council or committee. (5) In deciding whether part of a meeting is to be closed to the public, the council or committee concerned must have regard to any relevant guidelines issued by the Departmental Chief Executive. 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. 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. 10E (Repealed) 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. Part 2 12–13 (Repealed) Part 3 Expressions of community opinion Division 1 Council polls 14 Council polls A council may take a poll of electors for its information and guidance on any matter. Division 2 Constitutional referendums 15 What is a constitutional referendum? A constitutional referendum is a poll initiated by a council in order to give effect to a matter referred to in section 16. 16 What matters must be dealt with at a constitutional referendum? A council may not do any of the following unless approval to do so has been given at a constitutional referendum— (a) divide its area into wards or abolish all wards in its area, (b) change the basis on which the mayor attains office (that is, by election by the councillors or by election by the electors), (c) increase or decrease the number of councillors in accordance with the limits under section 224, (d) change the method of ordinary election of councillors for an area divided into wards. (e) (Repealed) 17 What is the effect of a constitutional referendum? (1) The decision made at a constitutional referendum binds the council until changed by a subsequent constitutional referendum. (2) However, such a decision does not apply to a by-election held after the constitutional referendum and before the next ordinary election. Division 3 General provisions concerning a council poll or constitutional referendum 18 What provisions apply to the conduct of a council poll or constitutional referendum? Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How are people elected to civic office?) apply to a council poll, and Part 1 and Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional referendum, with such modifications as may be necessary, in the same way as they apply to an election. Note. Part 1 of Chapter 10 identifies the people who are entitled to vote in council elections, and Part 6 governs the conduct of those elections. Division 3 of Part 6 of that Chapter deals with nominations for election, Division 4 with failure to vote and Division 5 with miscellaneous matters such as irregularities of form or procedure in elections, overdue elections and those declared void. 19 Day for taking council poll or constitutional referendum A council poll or constitutional referendum may be taken on any Saturday, including the Saturday of an ordinary election. 20 When is a question at a council poll or constitutional referendum carried? (1) The question at a council poll or constitutional referendum is carried if it is supported by a majority of the votes cast. (2) The reference to votes in subsection (1) does not include a reference to any vote that, pursuant to the regulations, is found to be informal. Expressions of community opinion Types of expression Council Poll Constitutional Referendum Question to be determined • Creation or abolition of all wards Any question • Change in the way in which the mayor is chosen • Change in number of councillors • Change in the way councillors are elected for an area divided into wards Result of Poll If Yes If No If Yes If No Council chooses whether or not to proceed Change must proceed Change cannot proceed until passed by a later constitutional referendum Chapter 5 What are a council's functions? 21 Functions under this Act A council has the functions conferred or imposed on it by or under this Act. Note. This Act classifies certain of a council's functions as service, that is, non-regulatory (Chapter 6), regulatory (Chapter 7) or ancillary (Chapter 8). Ancillary functions are those functions that assist the carrying out of a council's service and regulatory functions. A council also has revenue functions (Chapter 15), administrative functions (Chapters 11, 12 and 13) and functions relating to the enforcement of this Act (Chapters 16 and 17). 22 Other functions A council has the functions conferred or imposed on it by or under any other Act or law. Note. While the main functions of councils are provided for under this Act, councils also have functions under other Acts. An important general provision is contained in section 50 of the Interpretation Act 1987 which provides, in part— (1) A statutory corporation— (a) has perpetual succession, (b) shall have a seal, (c) may take proceedings and be proceeded against in its corporate name, (d) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and (e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions … (4) This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted. Some other Acts and some of the functions they confer include— Community Land Development Act 2021 planning functions as consent authority Companion Animals Act 1998 companion animal registration and control Conveyancing Act 1919 placing covenants on council land Environmental Planning and Assessment Act 1979 environmental planning Fire and Rescue NSW Act 1989 payment of contributions to fire brigade costs and furnishing of returns Fluoridation of Public Water Supplies Act 1957 fluoridation of water supply by council Food Act 2003 inspection of food and food premises Library Act 1939 library services Protection of the Environment Operations Act 1997 pollution control Public Health Act 2010 inspection of systems for purposes of microbial control Public Spaces (Unattended Property) Act 2021 taking possession of property Recreation Vehicles Act 1983 restricting use of recreation vehicles Roads Act 1993 roads Rural Fires Act 1997 issue of permits to light fires during bush fire danger periods requiring the furnishing of information to the Rural Fire Service Advisory Council and its Co-ordinating Committee State Emergency Service Act 1989 recommending appointment of local commander Strata Schemes Development Act 2015 approval of strata plans Swimming Pools Act 1992 ensuring restriction of access to swimming pools 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— Environmental Offences and Penalties Act 1989 forfeiture of council functions to person appointed by Governor Government Information (Public Access) Act 2009 council required to publish certain information and to grant access to certain documents Heritage Act 1977 rating based on heritage valuation Privacy and Personal Information Protection Act 1998 council required to amend certain records that are shown to be incomplete, incorrect, out of date or misleading State Emergency and Rescue Management Act 1989 council required to prepare for emergencies Unclaimed Money Act 1995 unclaimed money to be paid to the Chief Commissioner of Unclaimed Money 23 Supplementary, incidental and consequential functions A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions. 23A Departmental Chief Executive's guidelines (1) For the purposes of this Act, the Departmental Chief Executive may from time to time prepare, adopt or vary guidelines relating to the exercise by a council of any of its functions. (2) The Departmental Chief Executive may only prepare, adopt or vary guidelines relating to the exercise by a council of functions conferred or imposed on the council by or under any Act or law that is not administered by or the responsibility of the Department of Local Government if the Departmental Chief Executive has first obtained the concurrence of the Minister administering or responsible for the administration of the other Act or law. (3) A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions. (4) The guidelines for the time being in force are to be made available to councils on request and, on payment of such fee (if any) as the Departmental Chief Executive may determine, to any interested person. WHAT ARE A COUNCIL'S FUNCTIONS? A COUNCIL EXERCISES FUNCTIONS UNDER THIS ACT OTHER ACTS SERVICE FUNCTIONS REGULATORY FUNCTIONS ANCILLARY FUNCTIONS REVENUE FUNCTIONS ADMINISTRATIVE FUNCTIONS ENFORCEMENT FUNCTIONS VARIOUS FUNCTIONS For example— • Rates For example For example • Providing community health, recreation, education & information services • Approvals • Resumption of land • Charges • Employment of staff • Proceedings for breaches of the Act • Environmental protection • Orders • Powers of entry and inspection • Fees • Management plans • Prosecution of offences See the Note to section 22 • Waste removal & disposal • Building certificates • Borrowings • Financial reporting • Recovery of rates and charges • Land & property, industry & tourism development & assistance • Investments • Annual reports Chapter 6 What are the service functions of councils? Part 1 General 24 Provision of goods, services and facilities and carrying out of activities A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law. Part 2 Public land Note. This Part requires all land vested in a council (except a road or land to which the Crown Land Management Act 2016 applies) to be classified as either "community" or "operational". The classification will generally be achieved by a local environmental plan but may, in some circumstances, be achieved by resolution of the council (see sections 31, 32 and 33). The purpose of classification is to identify clearly that land which should be kept for use by the general public (community) and that land which need not (operational). The major consequence of classification is that it determines the ease or difficulty with which land may be alienated by sale, leasing or some other means. Community land must not be sold (except in the limited circumstances referred to in section 45(4)). Community land must not be leased or licensed for more than 21 years and may only be leased or licensed for more than 5 years if public notice of the proposed lease or licence is given and, in the event that an objection is made to the proposed lease or licence, the Minister's consent is obtained. No such restrictions apply to operational land. Classification or reclassification of land does not affect any estate or interest a council has in the land. Community land would ordinarily comprise land such as a public park. Operational land would ordinarily comprise land held as a temporary asset or as an investment, land which facilitates the carrying out by a council of its functions or land which may not be open to the general public, such as a works depot or a council garage. The use and management of community land is to be regulated by a plan of management. Until a plan of management is adopted, the nature and use of the land must not change. Division 1 Classification and reclassification of public land 25 All public land must be classified All public land must be classified in accordance with this Part. 26 What are the classifications? There are 2 classifications for public land—"community" and "operational". Note. On the commencement of this Part, certain land that is vested in or under the control of a council is taken to have been classified as community land by the operation of clause 6 of Schedule 7. 27 How are the classifications made? (1) The classification or reclassification of public land may be made by a local environmental plan. (2) The classification or reclassification of public land may also be made by a resolution of the council under section 31, 32 or 33. 28 Forwarding of planning proposals to Minister for Planning (1) A council may not forward a planning proposal to the Minister for Planning under section 56 of the Environmental Planning and Assessment Act 1979 which includes a proposal to classify or reclassify public land that is not owned by the council unless the council has obtained the consent of the owner to the proposed classification or reclassification of public land. (2) A local environmental plan that classifies or reclassifies public land may apply to one or more areas of public land. 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. 30 Reclassification of community land as operational (1) A local environmental plan that r