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TRANSPORT OPERATIONS (ROAD USE MANAGEMENT) ACT 1995 - SECT 100
Removal of things from roads
100 Removal of things from roads
(1) Subsections (3) to (11) apply if the chief executive officer of a local
government considers on reasonable grounds that a vehicle, tram or animal in
the local government’s area has been abandoned on a road, other than a
busway, by the person who last drove or used it, or that— (a) a vehicle,
tram or animal in the local government’s area has been— (i) left on a road
unattended whether temporarily or otherwise for a time or in a place,
condition, way or circumstances where its presence is hazardous; or
(ii)
found on a road in a place, condition, way or circumstances where its presence
is hazardous or in contravention of this Act; and
(b) the driver of the
vehicle, tram or animal— (i) can not readily be located; or
(ii) has failed
to immediately remove the vehicle, tram or animal when required by the local
government to do so.
Note— Also see section 51G , which deals with the
chief executive’s power to move a vehicle, load or other thing on a road.
(2) For subsection (1) , the presence of a vehicle, tram or animal on a road
is
"hazardous" if it is causing, or is likely to cause, danger, hindrance or
obstruction to traffic or is preventing, hindering or obstructing, or is
likely to prevent, hinder or obstruct, the use of the road or a part of the
road for a lawful purpose.
(3) The local government may remove the vehicle,
tram or animal from the road and detain it at a place for safe keeping.
(4)
As soon as practicable after removal of the vehicle, tram or animal, the chief
executive officer of the local government concerned shall cause notice in
writing to be given to the owner thereof, if the owner can be ascertained, of
such removal and of the place at which the vehicle, tram or animal is then
detained.
(5) Such notice shall, if practicable, be served upon the owner
personally, but if it is not so served within 14 days from the date of such
removal it may be given by public advertisement in a newspaper circulating in
the locality in which the vehicle, tram or animal was found.
(6) If within 1
month from the date of service or advertisement of such notice the owner of
the vehicle, tram or animal or a person acting on the owner’s behalf or a
person claiming a right to the possession of the vehicle, tram or animal, has
not obtained possession of the vehicle, tram or animal in accordance with the
provisions of subsection (10) , the chief executive officer of the local
government may— (a) by notice published in a newspaper circulating in the
locality in which the vehicle, tram or animal was found, advertise that it
will offer the vehicle, tram or animal for sale by public auction at the place
and time stated in the advertisement; and
(b) at the time on the day stated
in the advertisement (which day shall be not earlier than 14 days after the
date when the advertisement was published) and at the place stated in the
advertisement, offer the vehicle, tram or animal for sale by public auction
unless the owner thereof or a person acting on the owner’s behalf or a
person claiming a right to possession thereof has sooner obtained possession
of the vehicle, tram or animal in accordance with the provisions of subsection
(10) ; and
(c) if no offer for the vehicle, tram or animal is received at
such auction—dispose of the same in such manner and on such terms as the
chief executive officer of the local government may determine.
(7) The
proceeds of the sale or disposal of the vehicle, tram or animal shall be
applied in the following order— (a) in payment of the expenses of the sale
or disposal;
(b) in payment of the cost of removal and detention of the
vehicle, tram or animal and the service and advertisement of any notice served
or advertised under subsection (5) ;
(c) if there is an amount owing to an
entity under a security interest registered for the vehicle, tram or animal
under the Personal Property Securities Act 2009 (Cwlth) —the amount owing
under the security interest;
(d) in payment of the balance of such proceeds
to the owner of the vehicle, tram or animal or, if after reasonable inquiry,
the owner can not be ascertained, into the general fund of the local
government.
(7A) A secured party can not enforce any security interest in the
proceeds of sale against an entity to whom an amount is payable under
subsection (7) (a) or (b) .
(8) The local government may deal with any goods,
equipment or thing contained in, on or about the vehicle, tram or animal at
the time of its removal in the same manner as it may deal with the vehicle,
tram or animal pursuant to this section.
(9) However, any perishable goods in
or on the vehicle, tram or animal at the time of its removal may be disposed
of in the way the chief executive officer of the local government concerned
shall direct and the proceeds (if any) of such disposal shall be applied in
accordance with the provisions of subsection (7) .
(10) The chief executive
officer of the local government must not deliver possession of the vehicle,
tram or animal to the owner thereof, or to another person acting on the
owner’s behalf, or to any other person claiming a right to the possession
thereof unless the following provisions have been complied with— (a) the
owner, or person acting on the owner’s behalf, or other person claiming a
right to possession of the vehicle, tram or animal shall have applied in
writing signed by the applicant to the chief executive officer of the local
government concerned for the release from such detention of the vehicle, tram
or animal;
(b) the applicant shall have furnished proof to the satisfaction
of the chief executive officer of the applicant’s ownership or of the
applicant’s right to possession of the vehicle, tram or animal and, in the
case of the applicant’s being a person acting on behalf of the owner, shall
have furnished proof to the satisfaction of the chief executive officer of the
applicant’s authority to act on behalf of such owner;
(c) the applicant
shall have paid all expenses incurred by the local government concerned in
connection with the removal and detention of the vehicle, tram or animal and
the service, or advertisement, of any notice served or advertised in relation
to such removal and detention or intended sale of the vehicle, tram or animal;
(d) the applicant has signed a receipt for the delivery of the vehicle, tram
or animal to the applicant.
(11) Any person who takes delivery, or obtains
possession of or removes or attempts to remove from the detention of a local
government a vehicle, tram or animal removed and detained pursuant to the
provisions of subsection (3) except in accordance with the provisions of
subsection (10) shall be guilty of an offence. Penalty— Maximum
penalty—40 penalty units or 6 months imprisonment.
(12) Under a local
law, a local government may provide for the removal, safe storage or disposal
of a vehicle, tram or animal in the local government’s area that a person
authorised under the local law considers on reasonable grounds— (a) has been
abandoned on a road, other than a busway; or
(b) has been left as described
in subsection (1) (a) (i) ; or
(c) has been found as described in subsection
(1) (a) (ii) .
(13) If a local law provides for a matter mentioned in
subsection (12) , subsections (3) to (11) no longer apply in the local
government’s area.
(14) Subsections (3) to (11) in their application in the
local government’s area are not revived by the repeal of the local law.
(14A) This section, or a local law mentioned in subsection (12) , does not
apply if an officer of a local government removes a vehicle, load or other
thing from a road under chapter 3 , part 4C , under a delegation from the
chief executive.
(15) In this section—
"secured party" has the meaning given by the
Personal Property Securities Act 2009 (Cwlth) , section 10 .
"vehicle" includes any part of a vehicle.
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