Div 11Miscellaneous

Division 11—Miscellaneous 232—Trees Before a council plants vegetation, or authorises or permits the planting of vegetation, on a road, the council must (in addition to complying with any other statutory requirement)— (a) give consideration to whether the vegetation is, on balance, appropriate to the proposed site taking into account— (i) environmental and aesthetic issues; and (ii) the use and construction of the road (including the potential for interference with the construction of the road or with structures (including pipes, wires, cables, fixtures, fittings or other objects) in the road); and (iii) road safety matters; and (iv) other matters (if any) considered relevant by the council; and (b) if the vegetation may have a significant impact on residents, the proprietors of nearby businesses or advertisers in the area, undertake public consultation. 233—Damage (1) A person who, without the council's permission, intentionally or negligently damages a road or a structure (including pipes, wires, cables, fixtures, fittings and other objects) belonging to the council associated with a road is liable to the council in damages. (2) The council may recover damages under this section in the same way as damages for a tort. 234—Council's power to remove objects etc from roads (1) A council may remove and dispose of any structure, object or substance from a road if— (a) it has been erected, placed or deposited on the road without the authorisation or permit required under this Part; or (b) an authorisation or permit has been granted but has later expired or been cancelled. (2) The council may recover the cost of acting under this section as a debt from the person who erected, placed or deposited the structure, object or substance on the road. (3) If, as a result of any accident involving a vehicle or vehicles, any wreckage, objects or materials are left on a road, the council may clear the area and may recover the cost from the driver of the vehicle or, if more than one vehicle was involved, the driver of any one of the vehicles. 234A—Prohibition of traffic or closure of streets or roads (1) Subject to this section, a council may, by resolution supported by an absolute majority of the members of the council, exclude vehicles (either generally or of a particular class) from the whole or any part of a road or public place. (2) The council may, by further resolution, vary or revoke a resolution under subsection (1). (3) A resolution or resolutions passed under this section may only operate so as to exclude vehicles from the whole or part of a particular road for a maximum period of 30 days in a year. (4) To avoid doubt, a resolution passed under this section cannot be extended, renewed or remade so as to operate to exclude vehicles from the whole or part of a particular road for more than the maximum period of 30 days in a year. (5) Subject to the Road Traffic Act 1961, the council may erect such barricades or other traffic control devices as are necessary to give effect to a resolution passed under this section. (6) A resolution passed under this section cannot take effect before notice of the resolution is published on a website determined by the chief executive officer of the council. (6a) A council must also give public notice of a resolution passed under this section as soon as possible after passing the resolution. (7) A person who contravenes or fails to comply with a resolution under this section is guilty of an offence. Maximum penalty: $5 000. Part 3—Anti-pollution measures 236—Abandonment of vehicles (1) A person who abandons a vehicle on a public road or public place is guilty of an offence. Expiation fee: $315. (2) The court by which a person is convicted of an offence against subsection (1) must, on application by the council, order the convicted person to pay to the council any costs incurred by the council in removing or disposing of the vehicle. 237—Removal of vehicles (1) If a vehicle has been left on a public road or place, or on local government land for at least 24 hours, an authorised person may place a prescribed warning notice on the vehicle. (2) After 24 hours has expired since the placement of a prescribed warning notice, an authorised person may have the vehicle removed to an appropriate place. (3) The regulations may provide that subsections (1) and (2) do not apply, or apply with prescribed variations, in circumstances or a class of circumstances prescribed in the regulations. (3a) To avoid doubt, a vehicle parked or left standing on a public road in a manner that does not contravene a law regulating the parking or standing of vehicles on public roads will be taken not to have been left on a public road for the purposes of subsection (1), unless the vehicle has, in the opinion of the authorised person, been abandoned. (4) The council must ensure that the owner of the vehicle is notified of the removal of the vehicle— (a) by written notice in the prescribed form— (i) served on the owner personally; or (ii) served on the owner by the use of person‑to‑person registered post, as soon as practicable after the removal of the vehicle; or (b) if the owner is unknown or cannot be found—by public notice given within 14 days after the removal of the vehicle. (5) If the owner of the vehicle does not, within 1 month after service or publication of the notice relating to the removal of the vehicle— (a) take possession of the vehicle; and (b) pay all expenses in connection with the removal, custody and maintenance of the vehicle and of serving, posting or publishing the notice, the council must, subject to subsection (6)(b), offer the vehicle for sale by public auction or public tender. (a) the vehicle is offered for sale but is not sold; or (b) the council reasonably believes that the proceeds of the sale of the vehicle would be unlikely to exceed the costs incurred in selling the vehicle or the costs incidental to removing or holding the vehicle, or those costs combined, the council may dispose of the vehicle in such manner as the council thinks fit. (7) The council must apply any proceeds of sale of the vehicle as follows: (a) firstly, in payment of the costs of and incidental to the sale; (b) secondly, in payment of the costs of and incidental to the removal, custody and maintenance of the vehicle and of the notice served, posted or published under this section; (c) thirdly, in payment of the balance to the owner of the vehicle. (8) If after reasonable inquiry following sale of the vehicle the owner of the vehicle cannot be found, the balance of the proceeds of the sale is to be paid to the council. (9) If after taking reasonable steps the council cannot return property found in the vehicle— (a) the goods will be taken to be unclaimed goods for the purposes of the Unclaimed Goods Act 1987; and (b) the council will be taken to be a bailee of the goods under that Act. Part 4—Specific by-law provisions 238—Power to control access and use of land (1) A council may make by-laws controlling access to and use of local government land. The by-laws may for example— • fix opening hours for specified land and prohibit or restrict access at other times; • regulate, restrict or prohibit public access to specified land; • regulate, restrict or prohibit the bringing of animals or a specified class of animals onto specified land or the movement of animals or a specified class of animals on specified land; • close specified land, or part of the land, to public access; • regulate, restrict or prohibit the lighting of fires; • regulate, restrict or prohibit sporting or other activities on specified land; • regulate the use of facilities provided on specified land; • regulate the speed or route of vehicles driving on the land; • regulate, restrict or prohibit the parking or standing of vehicles. (2) However— (a) a by-law cannot be made under subsection (1) about access to or use of a road; and (b) a by-law prohibiting a person from bringing alcoholic liquor onto local government land, or consuming alcoholic liquor on local government land, may only be made if the land constitutes a park or a reserve. (3) If a council makes a by-law about access to or use of a particular piece of local government land under this section, a notice setting out the effect of the by-law should be erected in a prominent position on, or in the immediate vicinity of, the land to which the by-law applies. 239—By-laws about use of roads (1) A council may make by-laws about the use of roads for— (a) moveable signs; or (b) the broadcasting of announcements or advertisements; or (c) public exhibitions or displays; or (d) soliciting for religious or charitable purposes; or (e) motor vehicle maintenance or repair; or (f) the movement of animals; or (g) any other use in relation to which the making of by-laws is authorised by regulation. (2) Subject to this Act, a by-law made under subsection (1) can regulate, restrict or prohibit the use of which it relates. 240A—Roads vested in Commissioner of Highways If the Commissioner of Highways has, in accordance with the Highways Act 1926, granted a lease or licence to a person in relation to a road vested in the Commissioner of Highways under that Act, a by‑law made under this Act does not apply to any act or omission by the lessee or licensee that is specifically authorised under the lease or licence. Part 5—Other matters 241—Native title (1) No dealing with land under this Act affects native title in the land. (2) However, subsection (1) does not apply if the effect is valid under a law of the State or the Native Title Act 1993 (Commonwealth). 242—Time limits for dealing with certain applications (1) This section applies to— (a) an application for a council's approval of the proposed use of community land for a business purpose; or (b) an application for the council's authorisation to use a road for a business purpose; or (c) an application of a kind declared by regulation to be an application to which this section applies. (2) An application to which this section applies must be decided within two months after the relevant date and, if not so decided, is taken to have been refused. (3) A council must notify the applicant in writing as soon as practicable of a decision or presumptive decision on an application to which this section applies. (4) In this section, the relevant date is the date of the application or, in the case of an application on which the council proposes to conduct public consultation, a later date the council fixes in a written notice given to the applicant within one month after the date of the application as the date on which it expects to complete the process of public consultation. 243—Registrar-General to issue certificate of title (1) If land vests for an estate in fee simple in a council under this Act, the council must apply to the Registrar-General for the issue of a certificate of title for the land under the Real Property Act 1886. (2) An application under this section must— (a) be made in a manner and form approved by the Registrar-General; and (b) be accompanied by— (ii) any surveys of the land and other materials that the Registrar-General may reasonably require; and (iii) a fee fixed by the Registrar-General. 244—Liability for injury, damage or loss on community land (1) A council is only liable as occupier of community land for injury, damage or loss that is a direct consequence of a wrongful act on the part of the council. (2) However, this section does not affect a council's liability as occupier of a building or artificial structure on community land. 245—Liability for injury, damage or loss caused by certain trees (1) A council is not liable for any damage to property which results from— (a) the planting of a tree in a road; or (b) the existence of a tree growing in a road (whether planted by the council or not). (2) However, if— (a) the owner or occupier of property adjacent to the road has made a written request to the council to take reasonable action to avert a risk of damage to property of the owner or occupier from the tree; and (b) the council has failed to take reasonable action in response to the request, the council may be liable for any damage to property that would have been averted if the council had taken reasonable action in response to the request. 245A—Council may require bond or other security in certain circumstances (1) Subject to this section, if— (a) a person has approval to carry out development under the Planning, Development and Infrastructure Act 2016; and (b) the council has reason to believe that the performance of work in connection with the development could cause damage to any local government land (including a road) within the vicinity of the site of the development, the council may, by notice in writing served on the person who has the benefit of the approval, require the person to enter into an agreement that complies with any requirements prescribed by the regulations so as to ensure that money is available to address the cost of any damage that may be caused. (2) The regulations may prescribe or limit the terms or conditions of any agreement that may be required under subsection (1) (including by providing the maximum amount that may be payable under such an agreement or by providing that a prescribed form of guarantee or indemnity may be given in substitution for any bond or other form of security). (3) A person required to enter into an agreement under subsection (1) may, within 28 days after service of the notice under that subsection, appeal to the Environment, Resources and Development Court against the imposition of the requirement, or against the terms or conditions of the agreement. (4) The Court may, on hearing an appeal— (a) confirm, vary or reverse any requirement that has been imposed (but not so as to create any inconsistency with the regulations); (b) remit the matter to the council for further consideration; (c) make any consequential or ancillary order, or impose any condition or requirement, that it considers necessary or expedient. (5) Subject to the outcome of any appeal under this section, a person who fails to comply with a requirement under this section within a period prescribed by the regulations is guilty of an offence. Expiation fee: $500. (6) A regulation cannot be made under this section unless the Minister has given the LGA notice of the proposal to make a regulation under this section and given consideration to any submission made by the LGA within a period (of between 3 and 6 weeks) specified by the Minister.