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 7/16/2014 12:15 PM
 
I have a Roads Act question for you. We have an issue arising in the area where people have taken to complaining about landscaping of road verge / nature strip / footpath areas. Under s138 of the roads act, (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section. So if someone has landscaped, planted shrubs, placed articles, such as lattice or sculptures on the defined road verge, does this mean before I can tell them to remove these items that they must submit a s138 application for approval to remove the items they put in? Thanks in advance
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 7/17/2014 2:29 PM
 
Hello Belinda, Obviously before taking any action Yvonne should check her authority to take action under the appropriate act. Roads Act might be the Engineer. Referring to the later question depending on what it is they have placed or intend to place on the road reserve (Yvonne has indicated a variety of different things) she may want to also consider each individual case as to whether approval under s68 of the LG Act is appropriate. Regards Greg Johnston - Deniliquin
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 7/17/2014 2:30 PM
 
Hi Belinda, I couldn’t find Yvonne’s email address so I have sent my response to you. The fact that they have done the work on the road reserve without obtaining the “consent of the appropriate roads authority” ( which would be Council for local roads or the RMS for classified roads) means that you can issue a PIN for 10 penalty units. To require them to move the offending material, you could issue Order 27 under Section 124 of the LGA. You can issue a PIN for $220 under Schedule 12 of the Local Government (General) Regulation 2005 if they fail to comply with this Order. Further, under Section 243 of the Roads Act, you could issue a PIN under Clause 80 of the Roads Regulation 2008 for the offences listed in Schedule 1 for the offence listed in Clause 11 of the Roads Regulation 2008. Cheers. Regards, Ralph Tambasco - Junee
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 7/17/2014 2:30 PM
 
Directions and orders in the LG Act, Ep& A Act specifically relieve the person so directed from needing to gain approval for the work. The POEO Act and Roads Act implicitly have the same ability. The offending party still might need to give Council an acceptable specification and method for the work. It makes sense that if you order someone to do something they should not, unless specifically required to gain approval for the work under the direction, need to get consent for that work. Local Government Act 1993 No 30 Current version for 4 July 2014 to date (accessed 17 July 2014 at 09:14) Chapter 7 Part 2 Division 3 Section 138A << page >> 138A Approval or consent not required to comply with order A person who carries out work in compliance with a requirement of an order does not have to make an application under Division 1, 2 or 3 of Part 1 for approval of the work or an application under Part 4 of the Environmental Planning and Assessment Act 1979 for consent to carry out the work. Environmental Planning and Assessment Act 1979 No 203 Part 6 Division 2A Section 121O << page >> 121O Development consent or approval not required to comply with order A person who carries out work in compliance with a requirement of an order does not have to make an application under Part 3A or Part 5.1 for approval or Part 4 for consent to carry out the work. cheers Glenn Brasier - Tumut
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