Local Government (Highways) Act 1982 (Tas)

Local Government (Highways) Act 1982 An Act to consolidate with amendments certain enactments concerning the functions of the corporations of municipalities with respect to highways and certain other ways and places open to the public [Royal Assent 23 December 1982] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Local Government (Highways) Act 1982 . 2. Commencement (1) This section and section 1 shall commence on the day on which this Act receives the royal assent. (2) Except as provided in subsection (1) , this Act shall commence on such day as may be fixed by proclamation. 3. Interpretation (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires – bridge includes a culvert and includes the abutments and any other part of a bridge, but does not include the approaches, or the causeway, or other works giving access, to a bridge; by-laws means by-laws made under the Local Government Act 1993 ; Commissioner means the Commissioner for Town and Country Planning; corporation and corporation of a municipality means a council and, in relation to any land, or a building, structure or other thing on any land, or a highway, means the council of the municipal area in which the land or highway is situated; council clerk means a general manager within the meaning of the Local Government Act 1993 ; country highway has the meaning assigned to that expression by section 4 (7) ; Crown land means land which is vested in the Crown and which is not contracted to be granted in fee simple, and includes land granted in fee simple which has revested in the Crown by way of purchase or otherwise; Director means the Director of Local Government appointed under the Local Government Act 1993 ; district means a municipal area; functions includes duties; highway includes – (a) a part of a highway; and (b) a mall; highway rights means rights acquired under section 4 of the Highways Act 1951 ; highway under local management has the meaning assigned to that expression by section 4 (6) ; highway works means any works carried out under this Act in, over, or under a highway or in the exercise of the powers conferred on a corporation in relation to a highway opened or to be opened; local highway has the meaning assigned to that expression by section 4 (1) ; local highway order means a local highway order under Division 2 of Part II ; local newspaper means a newspaper published in the State; maintain includes improve, widen, alter, and repair; maintainable by the corporation, in relation to a highway or local highway or to the widening or diversion of a highway, means maintainable at the expense of the corporation; mall means an area of a highway that has been set aside primarily for pedestrian traffic and recreational purposes; Minister for Crown Lands means the Minister having power under the Crown Lands Act 1976 to manage or dispose of Crown land; Minister for State Highways means the Minister for the time being administering the Roads and Jetties Act 1935 ; municipal district means a municipal area; municipal office means a public office within the meaning of the Local Government Act 1993 ; municipality means a municipal area; occupier, in relation to any land, includes a person having the control or management of the land and, if the land is unoccupied, includes the owner of the land; owner, in relation to a highway, means the owner of any land adjoining or adjacent to the highway or on which the highway is situated; proclaimed day means the day fixed by proclamation under section 2 (2) ; the regulations means regulations made by the Governor under this Act; Secretary means the Secretary of the responsible Department in relation to the Roads and Jetties Act 1935 ; standard requirements means requirements prescribed in by-laws for the dimensions, configuration or mode of construction of a road or other way; State highway has the meaning assigned to that expression by section 4 (1) ; statutory holiday means a statutory holiday as defined in the Statutory Holidays Act 2000 ; way includes any land appearing to be intended for use or to be made up for the passage of persons, vehicles, or animals. (2) A reference in this Act to the carrying out of works in a highway shall be read as including a reference to the carrying out of works on, under, or over the highway or in, on, or under a bridge, embankment, or other work carrying the highway or necessary for its convenient use. 4. Categories of highways (1) In this Act, all State highways and subsidiary roads within the meaning of the Roads and Jetties Act 1935 are referred to as State highways and all other highways (except highways that, immediately before the proclaimed day, were repairable by State authorities) are referred to as local highways. (2) In subsection (1) , State authority means a person, body, or authority, whether incorporated or unincorporated, constituted by or under an Act, or appointed by the Governor under the authority of an Act, to administer or control a department, office, business, or undertaking on behalf of the State. (3) A highway that, immediately before the proclaimed day, was repairable by a corporation becomes on that day a highway maintainable by the corporation. (4) Before a State highway ceases to be a State highway and becomes a local highway, it shall be put into such proper state of repair as may be agreed on by the Secretary and the corporation or, if they so fail to agree, into such proper state of repair as may be determined by the Minister for State Highways. (4A) If a State highway ceases to be a State highway and becomes a local highway, it is maintainable by the corporation if – (a) the corporation has agreed to maintain it; or (b) it ceased to be a State highway because a new State highway providing an alternative route has been constructed. (5) A local highway may, in accordance with this Act, become a highway maintainable by the corporation and, notwithstanding anything in the foregoing provisions of this section, a local highway may, in accordance with this Act, cease to be maintainable by the corporation. (6) A reference in this Act to a highway under local management shall be read as a reference to – (a) a local highway maintainable by the corporation; or (b) a highway that, pursuant to section 50 , is subject to the care, control, and management of a corporation. (7) A reference in this Act to a country highway shall be read as a reference to a local highway situated elsewhere than in a city or town. 5. . . . . . . . . PART II - Creation, Closure, and Diversion of Highways and Other Matters Affecting Their Status Division 1 - Creation of highways, and their status with respect to maintenance by corporations 6. Making, widening, &c., of highways by corporations (1) The corporation, as it considers necessary, may make and open highways in the municipality and may, in the municipality, widen or extend a local highway maintainable by the corporation. (2) A corporation, before it opens a highway, or a widening or extension of a highway, under this Act, shall – (a) satisfy itself that standard requirements, if applicable, have been complied with; and (b) give at least 28 days' written notice to the Transport Commission of its intention to open the highway or, as the case may be, to open the widening or extension. (3) A highway, or widening or extension of a highway, that is opened under this section by a corporation is maintainable by the corporation. 7. Limitation on opening of highways in cities and towns by private persons (1) Subject to this section, the dedication as a highway of land in a city or town is of no effect unless the approval of the corporation under its seal is or has been given to the dedication. (2) The corporation shall, before giving its approval under this section to the dedication of any land as a highway, give at least 28 days' written notice to the Transport Commission of its intention to give such an approval. (3) An approval given under this section may be given subject to compliance with section 10 , and that section applies accordingly in respect of the highway to which the approval relates. (4) Except in a case to which subsection (3) applies, where approval is given under this section to the dedication of any land as a highway, that land shall be deemed not to have been dedicated as a highway unless the person capable of so dedicating the land has served notice on the corporation that it has been so dedicated. (5) This section does not prevent the creation of a highway under the Roads and Jetties Act 1935 or any other Act, nor does it prevent the exercise by a corporation of its powers under section 6 . 8. Maintenance of highways opened outside cities or towns by private persons (1) An owner may, by notice in writing, notify the corporation, in respect of a highway opened or to be opened elsewhere than in a city or town, that he requires the highway to be maintained by the corporation. (2) Where the corporation is of the opinion that the highway in respect of which a notice is served under subsection (1) is not, or will not be, useful enough to the inhabitants of its district to justify its being maintained by the corporation, it may, within 3 months of the receipt of the notice, notify the owner accordingly. (3) A highway in respect of which a notification is given under subsection (2) by the corporation is not maintainable by the corporation. (4) Except where the corporation notifies the owner as mentioned in subsection (2) , section 10 applies to a highway in respect of which a notice is served under subsection (1) . (5) Where by virtue of subsection (4) any works are or may be required to be carried out before the highway becomes maintainable by the corporation and the corporation is of the opinion that those works should be carried out as soon as possible, it may serve notice on the owner requiring him to carry out his obligations under section 10 , and that notice accordingly has such effect as is provided for in section 11 (10) . 9. Construction of highways on building estates (1) Section 10 applies in respect of dedicated highways over land in a sealed plan which takes effect under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 . (2) In the application of section 10 in a case to which this section applies, references in that section to an owner shall be construed as references to the owner of any of the land in the final plan of the building estate. 10. Obligations on landowners opening highways (1) Where this section applies to a highway opened or to be opened on any land, the owner shall ensure – (a) that works (in this section referred to as "the construction works") are carried out, in accordance with plans and specifications approved by the corporation, for the construction of a road or other way on the land or for the improvement, widening, or other alteration of a road or other way already existing on the land; and (b) that the road or other way is kept in repair throughout the statutory period. (2) Plans and specifications for the purposes of subsection (1) (a) shall be prepared by a civil engineer approved, or by another person approved, by the corporation. (3) Where standard requirements apply, the corporation shall not approve the plans and specifications for the purposes of subsection (1) (a) , unless it is satisfied that they conform with those requirements. (4) For the purposes of subsection (1) (b) , statutory period means a period of 6 months beginning on – (a) the date on which a certificate of completion referred to in subsection (5) (in this section referred to as "a certificate of completion") is issued in respect of the road works; or (b) the date determined by the corporation as the date of the opening of the highway – whichever is the later. (5) A certificate of completion is – (a) the certificate of the corporation's engineer; or (b) where the corporation has no engineer, the certificate of an engineer approved by the corporation – that the road or other way has been constructed substantially in accordance with the plans and specifications approved by the corporation for the purposes of this section. (6) Where the corporation is satisfied that there is already constructed on the land a road or other way suitable to become a highway maintainable by the corporation, it may, on receiving a certificate of completion, by written instrument, relieve an owner from the obligation to carry out construction works, and the instrument by which he is so relieved has the like effect as a certificate of completion. (7) Where an engineer referred to in subsection (5) certifies, after the end of the statutory period, that the road or other way is in a proper state of repair, the road or other way becomes a highway maintainable by the corporation. (8) On the request of an owner that a certificate of completion or a certificate referred to in subsection (7) be issued in respect of a road or other way, an engineer referred to in subsection (5) shall, with all reasonable despatch, cause the road or other way to be inspected and if, on that inspection, he finds that the issue of the certificate is justified, he shall forthwith cause it to be issued. (9) An engineer is not required under subsection (8) to cause a road or other way to be inspected where he knows that works are required to be carried out, or completed, before the certificate requested by the owner can be issued. 11. Enforcement of obligations of landowners opening highways (1) The corporation may enter into and carry into effect an agreement with an owner to carry out, at the expense of the owner, any works necessary for the discharge of the obligations of the owner under section 10 . (2) If, before the expiration of 12 months after the relevant date or within such further time as the corporation may allow, the obligations of an owner under section 10 (1) (a) have not been discharged, the corporation may cause such works to be carried out as are necessary for those obligations to be discharged and may recover the cost of those works from the owner. (3) For the purposes of subsection (2) , the relevant date means – (a) in a case to which section 7 applies, the date on which the approval of the corporation was notified to the owner; (b) in a case to which section 8 applies, the date on which the owner is notified by the corporation under subsection (5) of that section that the opening of the highway should be proceeded with; and (c) in a case to which section 9 applies, the date on which the sealed plan takes effect under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 . (4) If, at the expiration of the statutory period referred to in section 10 (4) , the road or other way is not in a proper state of repair, the corporation may cause such works to be carried out as are necessary to bring it into a proper state of repair, and may recover the cost of those works from the owner. (5) Subsection (2) and (4) do not apply to any works that the corporation is bound to carry out by virtue of an agreement under subsection (1) . (6) Before carrying out any works under subsection (2) or (4) , the corporation, unless it has already taken sufficient security for the execution of those works under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 , may require the owner to secure payment of the cost as estimated by it by means of a guarantee by an authorised deposit-taking institution or by a guarantee, money-lending, insurance, or trading corporation approved by the corporation. (7) Where any works are being, or have been, carried out, otherwise than by the corporation, for the purpose of the discharge of any of the obligations of an owner under section 10 , the owner shall – (a) furnish the corporation's engineer, when required, with a copy of each of the contracts and other documents relating to the carrying out of the works; (b) furnish the corporation's engineer with full particulars of all arrangements made in relation to the works; and (c) allow the corporation's engineer or a person authorized by him in that behalf to inspect and supervise the works. (8) If an owner fails to comply with any of the provisions of subsection (7) , he is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units. (9) A person concerned in the carrying out of works to which subsection (7) applies who does not obey the lawful orders of the corporation's engineer given in relation to their carrying out is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units. (10) Except where works to which subsection (7) applies are carried out under the direct supervision of a civil engineer engaged by the owner and approved by the corporation, the owner shall pay to the corporation a fee for supervision equal to 3 per cent of the cost of the works. (11) This section has effect subject to section 86 (5) of the Local Government (Building and Miscellaneous Provisions) Act 1993 . 12. Taking over by corporation of private roads, &c. (1) A corporation may, by resolution of the council, declare that a road or other way within the municipality that is not a highway shall become, as specified in the resolution, a highway maintainable by the corporation or a particular kind of highway so maintainable. (2) Where the standard requirements are applicable, the council shall not pass a resolution under this section unless it is satisfied that those requirements are complied with in respect of the road or other way to which the resolution relates. (3) A resolution made by the council for the purposes of this section is not invalidated by reason of the failure of the council to comply with subsection (2) . (4) The corporation shall cause a copy of a resolution under this section to be published in the Gazette and the road or other way to which the resolution relates becomes, on the date of the publication, such a highway as is specified in the resolution. Division 2 - Permanent closure, diversion, &c., of highways 13. Interpretation of Division 2 , Part II (1) In this Division – interested person, in relation to the proposed closure or diversion of a highway under section 14 or an application for a local highway order under section 16 or 17 , means – (a) an owner or occupier affected; (b) a person who uses the highway; (c) the Commissioner; (d) the Transport Commission; or (e) any other person who would be aggrieved by the closure or diversion or by the order; owner or occupier affected, in relation to the proposed closure or diversion of a highway under section 14 or an application for a local highway order under section 16 or 17 , means the person who is the owner or occupier of the lands on, or adjacent to which, there is situated the highway proposed to be closed or diverted or to which the application relates. (2) Where a notice under section 14 (1) or an application for a local highway order under section 16 or 17 applies to, or would affect, Crown land or a local highway situated on Crown land, the Minister for Crown Lands may exercise the rights of an interested person conferred by section 14 or 18 . 14. Closure and diversion of highways (1) If, in the opinion of the corporation, a local highway or part of a local highway should be diverted or closed for the public benefit, in the interests of public safety or because of lack of use, it may – (a) if it is satisfied, in the case of a diversion of a highway, that standard requirements, if applicable, have been complied with; and (b) not less than 28 days after a written notice of its intention to do so – (i) has been served on each of the owners and occupiers affected; (ii) has been served on the Transport Commission; (iii) has been displayed in a prominent position at each end of the highway; and (iv) has been published twice in separate issues of a local newspaper circulating in the municipality in which the highway is situated – close or divert the highway in respect of all traffic or particular types of traffic or subject to the reservation of a footpath or some other highway that may be used only for limited purposes. (2) A notice under subsection (1) may apply to 2 or more highways that are connected with one another. (3) Subject to subsection (4) , a notice under subsection (1) shall contain a map or plan showing the proposed closure or diversion to which it relates. (4) A notice under subsection (1) that is required to be published in a newspaper may, instead of containing such a map or plan as is referred to in subsection (3) , contain a statement of a place in the municipality in which the highway is situated where the plan may be inspected free of charge at all reasonable hours. (5) An interested person may, before the expiration of a notice under subsection (1) , give written notice to the corporation of his objection to the proposed closure or diversion. (6) The corporation is to refer each objection that it is notified of under subsection (5) to the Magistrates Court (Administrative Appeals Division). (7) The Magistrates Court (Administrative Appeals Division) has power to receive and determine the objection as if it were an application to review the decision relating to the proposed closure or diversion and, in addition to its powers under the Magistrates Court (Administrative Appeals Division) Act 2001 , the Court may make a local highway order – (a) upholding the objection; or (b) authorizing the proposed closure or diversion. (8) An order under subsection (7)(b) may prohibit, in whole or in part, the closure or diversion authorized by the order until such conditions as may be specified in the order have been fulfilled, being conditions that the Magistrates Court (Administrative Appeals Division) considers proper to impose for the provision or preservation of the means of communication by highway or the means of access to a highway. (9) Where the Magistrates Court (Administrative Appeals Division) makes an order under subsection (7)(b) , the Minister shall, as soon as possible after the making of the order, cause a notice containing particulars of the order to be published in the Gazette. (10) A diversion of a highway that is opened under this section by a corporation is maintainable by the corporation. 15. Dealing with sites of closed highways (1) Where a highway over land other than Crown land is closed in accordance with section 14 , the corporation may acquire any of that land, and, if a notice to treat for the purchase of the land is served within 3 months of the making of the order, the compensation for the taking of the land shall be determined as if the highway were continuing. (2) Without prejudice to the exercise of powers under any other Act, where a highway over Crown land is closed in accordance with section 14 , the land may be dealt with in accordance with the Crown Lands Act 1976 . (3) Where a person is entitled to compensation in respect of the acquisition of land for the purposes of the diversion of a highway made in pursuance of section 14 , and the corporation is able and willing to cause to be transferred to him other land that is capable of being occupied and used with land retained by him that adjoined the highway before its diversion, the compensation shall be reduced by the value of the land that may be so transferred, so far as that compensation is attributable to the value of the land acquired. (4) The powers of a corporation to acquire land for the purposes of the diversion of a highway include power to acquire land for the purpose of its transference pursuant to subsection (3) . 16. Relief from duty to maintain highway (1) Where, on an application by the corporation that is made as prescribed in the regulations, a magistrate is satisfied in respect of a country highway – (a) that it has at no time been formed, made, repaired, or improved by a highway authority; or (b) that no substantial loss or detriment would be suffered by any person if it ceased to be maintainable by the corporation – he may, by a local highway order, declare that the highway is not a highway maintainable by the corporation. (2) An order under subsection (1) does not prevent the highway to which it relates subsequently becoming a highway maintainable by the corporation. 17. Definition of boundaries of highway (1) On an application under this section, a magistrate may, by a local highway order, define the boundaries of a local highway. (1A) An application is to be in a form approved by the Director. (2) An application under this section may be made by the corporation or by the owner or occupier of land on, or adjacent to which, it is alleged, the highway is situated. (3) In making an order under this section, the magistrate, if it appears to him that the boundary is uncertain, shall fix the boundary where he thinks it ought to be, in the light of the evidence adduced before him. 18. Procedure on applications for local highway orders under section 16 or 17 (1) A magistrate shall not make a local highway order under section 16 or 17 unless he is satisfied that, at least 28 days before the making of the application for the order, a notice of the intention to make the application – (a) has been served on each of the owners and occupiers affected and, unless the corporation is the applicant, on the corporation; (b) has been served on the Transport Commission; (c) has been displayed in a prominent position at each end of the highway to which the application relates; and (d) has been published twice in separate issues of a local newspaper circulating in the municipality in which the highway is situated. (2) A notice referred to in subsection (1) shall specify the time and place at which the application is to be made and the terms of the order applied for, embodying a map or plan showing its effect. (3) A notice required to be published in a newspaper may, instead of containing such a map or plan as is referred to in subsection (2) , contain a statement of a place in the municipality in which the highway is situated where the plan may be inspected free of charge at all reasonable hours. (4) On the hearing of an application for a local highway order to which this section relates, the following persons have a right to be heard: (a) the corporation; (b) the person making the application; (c) an interested person. Division 3 - Temporary closure of local highways 19. Closure of local highways for public functions, &c. (1) For a purpose in connection with a public function, or in order to facilitate work on land adjoining a local highway, a corporation may, after consulting the Commissioner of Police– (a) close a local highway or part of a local highway in the municipality; (b) forbid the use of a local highway or part of a local highway in the municipality by all person, or by all persons with vehicles, subject to such exceptions as the corporation considers appropriate; or (c) subject to a resolution of the council, grant exclusive licences to occupy part of a local highway so closed for such periods and on such conditions as the corporation thinks fit. (2) When practicable, a corporation shall give notice in a local newspaper circulating in the municipality of any action that it proposes to take under this section. (3) The forbidding under subsection (1) (b) of the use of a local highway or part of a local highway in a municipality shall be effected by an order– (a) published in a local newspaper circulating in the municipality; or (b) displayed where the public right of passage ceases under the order. (4) A licence granted under subsection (1) (c) is to name at least one licensee and may describe other licensees in general terms. (5) While part of a local highway is closed or forbidden to be used under subsection (1) , that part shall be deemed to be the property of the corporation for the purpose of civil or criminal proceedings against persons who are not authorized to enter that part. 20. Closure of parts of local highways for sale of goods, &c. (1) For the purpose of providing a place for the sale of goods and for entertainment, the corporation may – (a) after giving– (i) at least 10 days' written notice of its intention to do so to the Transport Commission and the Commissioner of Police and after consulting the Transport Commission and the Commissioner of Police; and (ii) at least 5 days' notice of its intention to do so in a local newspaper circulating in the municipality– close part of a local highway on a Saturday or a statutory holiday, or Sunday for not more than 12 hours; and (b) subject to subsection (2) , enter into occupation of, and exercise all the rights of an owner over, the part so closed, and in particular but without limiting the generality of this paragraph – (i) give persons written permission to occupy portions of that part at such times, for such purposes, and on such conditions as it thinks fit; and (ii) charge for giving such a permission; (c) provide and use or hire stalls, stands, pens, signs, fences, and other structures; and (d) by resolution of the council, empower officers of the corporation to take any action required for the purposes of this section or to control the part so closed. (2) Anything done by the corporation under subsection (1) in relation to the part of a local highway closed by it under that subsection is not invalidated by reason of the failure of the corporation to comply with paragraph (a) of that subsection. (3) The corporation shall give to frontagers on the part of a local highway closed under subsection (1) reasonable means of access to their lands and those frontagers may use those means of access for themselves, visitors, and persons doing anything on those lands and for vehicles and machinery that the frontagers require to enter or leave their lands. (4) . . . . . . . . PART III - Construction, Maintenance, and Management of Local Highways Division 1 - General powers and duties of corporations 21. General responsibility of corporations (1) Subject to this Act, the corporation of a municipality is charged with the duty of maintaining the local highways in the municipality that are maintainable by the corporation as shown on its municipal map, and, in any particular