When is an area under Council’s control?

Local government area vs local government controlled area: what is the extent of Council’s jurisdiction and control

Definitions

The Local Government Act defines “local government area” to mean a part of Queensland that is governed by a local government, the boundaries of which are identified in an area map mentioned in Local Government Regulation, schedule 1.  Additionally, the Act makes other specific areas a part of a local government’s area.

By the by, despite the fact that an area map may appear to identify large swathes of coastal waters within the ‘boundary’ of a coastal Council’s local government area, only limited specific areas of coastal waters are part of the coastal Council’s local government area, and under its control.

Additional specific areas that are part of a Council’s local government area include, for example, any part of a watercourse (including the land below the high-water mark of the watercourse) that is within the boundary of the Council’s local government area; a gazetted foreshore, and a gazetted bathing reserve, provided these gazetted areas are actually placed under the Council’s control (by gazette notice).

Most local laws, including the model local laws, use the expression “local government controlled area” to mean, generally, in relation to a Council, the land, facilities and other infrastructure which is owned, held in trust, or otherwise controlled, by the Council, other than a road.

Examples of land and facilities that may be placed under the control of a Council include a gazetted foreshore or a gazetted bathing reserve placed under the Council’s control (by gazette notice) and a public marine facility for which the Council has been appointed manager under the Transport Infrastructure Act and Transport Infrastructure (Public Marine Facilities) Regulation.

As an aside, although a road that is not a State?controlled road is an area controlled by a Council pursuant to the Local Government Act, section 60, the road is not a “local government controlled area”, and a Council’s power to make local laws to regulate the use of the road is governed by the Transport Operations (Road Use Management) Act.

Jurisdiction versus control

The fact that an area is part of, or within, a Council’s local government area does not mean that the area is automatically a “local government controlled area”.  For example, a watercourse within the boundaries of a Council’s local government area is part of the Council’s local government area but not under Council’s control unless the State takes an additional step to place it under the Council’s express control.

Implications

For an area that is part of a Council’s local government area (but not a local government controlled area of the Council), the Council may, in any event, have jurisdiction to exercise specific legislative powers under a Local Government Act which applies to the area.  For example, Council has jurisdiction under the Waste Reduction and Recycling Act and the Environmental Protection Act to exercise specific prescribed enforcement powers for non-compliances that occur on a public place in its local government area.

For an area that is a local government controlled area, the Council’s control of the area enables the Council to prohibit, restrict, regulate and impose conditions on access to, and use of, the area, as it deems appropriate.  The Council may decide to exercise its control in accordance with ordinary proprietary rights, such as the grant of a lease or licence (subject to applicable legislative requirements), or pursuant to its local laws.

For more specific advice about the exercise of jurisdiction by a local government in respect of an area which is not a local government controlled area, but is within Council’s local government area, email Karyn Wernham or call us now on (07) 3243 0000.