Minutes of the ordinary Council meeting - 25 September 2012

classification procedure – the procedure being detailed in the Local Government Act
1993.
If a Council fails to carry out the land classification procedure within three months,
the land, even if it was intended to have, or be better suited to an “operational”
classification, automatically defaults to a “community” classification.
The Local Government Act 1993 further prescribes how a Council can deal with
/manage land that is classified as “operational” or “community”. Of note, councils
have no power to sell “community” land and there are numerous restrictions on a
council‟s ability to lease or licence “community” land. Furthermore, all “community”
land is to be managed in accordance with a Plan of Management adopted by Council
following prescribed public consultation. Until such time that a Plan of Management
is adopted by a Council, the use of the “community” land is not to change. For
example, a Council could not enter into a lease or licence agreement pending
adoption of the Plan of Management.
It is important therefore, to correctly classify land and comply with the land
classification process for lands purchased post 1993.
With regard to land dedicated to Council post 1993 for the purposes of a public
reserve, it is accepted practice that the dedicated land not be the subject of a
separate classification process given that such land is to be classified “community”
land as required by the Local Government Act. Dedications normally arise as a
result of land subdivisions in urban areas where the land developer is required to
set aside/ dedicate land for the purposes of public recreation. Dedications are
commonly known as Section 94 contributions, so called after the provisions set out
at Section 94 of the Environmental Planning and Assessment Act 1979 (E P & A Act)
From time to time, errors and/or administrative oversights result in lands receiving
an incorrect classification.
The Reclassification of Land
There is provision in the Local Government Act 1993 for land to be reclassified from
“operational” to “community” and vice versa.
The process of reclassifying “operational” land to “community” land is relatively
short and uncomplicated. However, the process of reclassifying “community” land
to “operational” land is a more complicated and time consuming process.
Reclassification from “community” to “operational” - Scenario 1
Where land that has received a “community” classification due to non-compliance
with the three month period as mentioned earlier in this report, this land may only
be reclassified by means of a Local Environmental Plan (LEP). This process requires
preparation by Council staff of an amendment to the LEP and ultimately, approval
of the NSW State Government. (Section 30 of the Local Government Act 1993
details the process). Management of this process can be reasonably „hungry‟ of
staff resources.
Reclassification from “community” to “operational” - Scenario 2
Where land that has received a “community” classification being land dedicated
under Section 94 of the E P & A Act 1979, Council may resolve to reclassify the land
only if it satisfied that the land has been found to be unsuitable for the provision or
extension of public amenities if one or more of the following criteria are met:
Kempsey Shire Council FULL TEXT Minutes Ordinary Meeting 25 September 2012 Page 69