Posted on July 3, 2025 by Anna Sinclair and 14

Can local councils issue orders and notices relating to State government land and buildings?

Local councils are authorised under the Environmental Planning and Assessment Act 1979 (EPA Act) and the Local Government Act 1993 (LG Act) to regulate land and buildings within their local government areas, amongst other things, by issuing statutory notices and orders. We are regularly asked whether those powers extend to the regulation of land and buildings that are owned and/or operated by the State government (State Government Land).

In this article, we look at a council’s power to issue a development control order under the EPA Act (DCO), and a s124 order under the LG Act (s124 Order) in respect of State Government Land, as well as its power to require compliance with Annual Fire Safety Statements requirements.

Issuing DCOs and s124 Orders

Both the EPA Act and LG Act bind the Crown (see s10.1 EPA Act and s4 LG Act).

Under s9.34 of the EPA Act and s124 of the LG Act, a council has powers to, respectively, issue a DCO or s124 Order. An order will generally require the recipient to take, or refrain from taking, a specified action in relation to the relevant land or building to which the order applies.

Relevantly, under s9.35(3) of the EPA Act and s126 of the LG Act, a DCO or s124 Order cannot be given in respect of the following land unless the written consent of the respective Minister, being either the Minister for Planning and Public Spaces or the Minister for Local Government, has first been obtained:

1. vacant Crown land,
2. Crown managed land within the meaning of the Crown Land Management Act 2016 (CLM Act), and
3. a common within the meaning of the Commons Management Act 1989 (CM Act).

Vacant Crown land

We note that the term ‘Crown land’ is defined in s1.7 of the CLM Act, and s1.8 of the CLM Act provides that, ‘[l]and is not Crown land if it is vested in a Minister, or a statutory body representing the Crown, with express power under an Act (except the Interpretation Act 1987) to hold land in the exercise of the Minister’s or body’s functions’.

Accordingly, if land is vested in a Minister or a statutory body representing the Crown, such as a NSW Government agency (see s13A of the Interpretation Act 1987), then that land is not ‘Crown land‘ and the prior consent of the Minister is not required in order for Council to issue as DCO or s124 Order.

The term ‘vacant Crown land’ is defined in s1.5 of the CLM Act to mean ‘Crown land that is not held under a holding’. A ‘holding’ is defined in the same provision to mean ‘any lease or licence under the CLM Act (including a continued holding), any incomplete purchase, and any other continued holding (except a permit or permission)’.

Councils may therefore be satisfied that Crown land that is leased or licenced under the CLM Act to a NSW Government agency, such as under a commercial lease for a marina, is not vacant Crown land and a DCO or s124 Order may be issued in respect of that land or building. Conversely, a council may only issue a DCO or s124 Order in relation to vacant Crown land, such as in circumstances where material has been illegally dumped on that vacant Crown land, with the prior written consent of the Minister.

Crown managed land

The term ‘Crown managed land‘ is defined in s1.7 of the CLM Act to mean dedicated or reserved Crown land, and any other land that is required or permitted to be managed under the CLM Act as if it were dedicated or reserved Crown land. This includes recreation reserves, parks, and other public open spaces. Accordingly, a council can only issue a DCO or s124 Order in respect of this land with the prior written consent of the Minister.

A common

Finally, a ‘common‘ is defined in s3 of the CM Act, and includes a parcel of land that has been set aside by an instrument by the Governor as a common for the use of the inhabitants of a specified locality. Commons are generally created for the use of local residents as land in common for purposes such as grazing or agriculture.

A council can only issue a DCO or s124 Order in respect of this land with the prior written consent of the Minister.

State Significant Infrastructure

Finally, only the Minister can issue a DCO in connection with development that is declared under s5.12 of the EPA Act to be State significant infrastructure (SSI). This generally includes large-scale transport and service developments such as rail and road infrastructure, pipelines and water storage and treatment plants.

Conclusion

There is otherwise nothing in the EPA Act and LG Act that precludes a council from issuing a DCO or s124 Order in relation to State Government Land.

Accordingly, before issuing a DCO or s124 Order in respect of State Government Land, a council must consider whether:

1. it is vacant or managed Crown land, or a common – if it is, then a council may not issue an order without the prior written consent of the Minister respectively responsible for administering the EPA Act or the LG Act;
2. it is vested in a Minister or statutory body representing the Crown – if it is, then it is not ‘vacant Crown land‘, and a council may issue an order without obtaining the written consent of the relevant Minister; and
3. it is SSI – then only the Planning Minister can issue a DCO.

Councils should otherwise comply with the respective provisions under the EPA Act and LG Act to ensure that the Order is validly issued (see our previous article here).

Annual Fire Safety Statements (AFSS)

Under s89(1) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (Fire Safety Regulation), the owner of a building to which an essential fire safety measure applies must give the council an annual fire safety statement (AFSS) for the building.

Failure to provide a council with an AFSS within the time required under s89(2) of the Fire Safety Regulation is an offence, in accordance with s89(3).

Under the now repealed s190 of the Environmental Planning and Assessment Regulation 2000, proceedings could not be taken for an offence with respect to a building situated on Crown managed land within the meaning of the CLM Act, except with the consent of the Minister administering the CLM Act.

There is no equivalent provision in the EPA Act, the Fire Safety Regulation, or the Environmental Planning and Assessment Regulation 2021. On the basis that the legislator purposefully removed s190 without including a similar provision in the EPA Act, there is clearly an intention that the s190 exception is no longer expected to operate.

Accordingly, if a State government agency owns a building to which an essential fire safety measure applies, it must give the council an AFSS for that building and it is not exempt from any offence for its failure to provide that AFSS.

If you have any questions regarding the above, please leave a comment below or contact Anna Sinclair on 02 8235 9713.