Posted on October 14, 2020 by Frances Tse and Lindsay Taylor 6

Are all Drainage Reserves Classified as Operational Land?

Drainage reserves vested in local councils are public land as defined in the Local Government Act 1993 (‘LG Act‘). All public land must be classified as either community or operational under the LG Act.

The Registrar-General’s Guidelines under section 12D of the Real Property Act 1900, appearing on the Registrar-Generals Guidelines website, contains the following statement in respect of drainage reserves vested in local councils,

‘A drainage reserve comprises operational land and may be dealt with in the same manner as other operational land standing in the name of the Council.‘

This statement is potentially misleading in so far as it suggests that all drainage reserves are classified as operational land.

Public land that is classified under the LG Act as community land is significantly restricted in the way that it can be dealt with. Such restrictions do not apply to operational land.

The LG Act contains procedures by which land that is acquired or becomes vested in or under the control of local councils is classified or reclassified. In summary, councils can classify or reclassify public land as community or operational by way of a local environmental plan, or a council resolution in specific circumstances.

Classification or reclassification of public land by way of a local environmental plan will involve the local environmental plan-making process set out in the Environmental Planning and Assessment Act 1979 (‘EPA Act‘).

Councils can classify or reclassify public land by way of resolution only in the following circumstances and with the following restrictions:

• In respect of land acquired after 1 July 1993:
  • a council can classify the land by resolution  before or within 3 months after the land is acquired,
  • however, Council cannot resolve to classify land as operational land if the land is classified as community land immediately before its acquisition or the resolution would be inconsistent with any other Act, the terms of any trust applying to the land or the terms of any instrument executed by the donor or transferor of the land, and
  • if Council does not resolve to classify land within 3 months after it acquires the land then the land is taken to be classified as community land.
• In respect of land dedicated under s7.11 (previously s94) of the EPA Act:
  • a council can reclassify the land as operational land but only if the council is satisfied of certain matters and has given public notice of the resolution and has arranged a public hearing.
• In respect of land that is operational land, a council can reclassify the land as community land.
• In any of the above cases, only if Council has given public notice of the proposed resolution.

It follows from the above that it is not necessarily the case that drainage reserves will be classified as operational.  If a drainage reserve is not classified or reclassified as operational land in accordance with the provisions of the LG Act then, like other public land, it will be classified as community land and the dealings the relevant local council may have with respect to the land will be restricted.