Section 138 – Carrying Out an Activity within a Public Road

Section 138 – Carrying Out an Activity within a Public Road

In the interests of public safety, consent is required when carrying out an activity within a Council or RMS road space, including verges. Often this form is known as a ‘Section 138’. Information below is provided to help users understand their requirements when conducting activities on public roads.

Please note that since 1 July 2021 all development applications and related approvals must be lodged via NSW Planning Portal. Training and Information guides on navigating the NSW Planning Portal can be found here

Section 138 Roads Act – approval for works in the public road

Consent under Section 138 of the Roads Act 1993 is required for any works or activities in the public reserve or in public road way.

Under the Roads Act, consent of the appropriate road authority is required for the following activities:

  • erect a structure or carry out a work in on or over a public road
  • dig up or disturb the surface of a public road
  • remove or interfere with a structure, work or tree on a public road
  • pump water into a public road from any land adjoining the road

Requirements for road opening permits and works under section 138 of the Roads Act can be obtained from Council.

Frequently asked questions

When and why is a Section 138 approval required?

Section 138 of the Roads Act requires that all work undertaken within Council’s road reserve be approved by Council prior to the work being undertaken, as Council is the appropriate roads authority required to implement the provision of the Roads Act. This includes the roadsides of the Pacific Highway. Work on the Pacific Highway itself requires a Road Occupancy Permit issued by Roads and Maritime Services.

In addition to the Roads Act, the Work Health and Safety Act (2011) and the WH &S Regulation (2011), place specific requirements in relation to working in or near vehicular or pedestrian traffic.

Any person undertaking works within the road reserve have a duty of care to ensure the safety of all persons including motorists, pedestrians and the general public whilst in, on, or around Council’s road reserve. If you (the contractor or person doing the work) do not have adequate safety systems, documentation and insurance in place, you may be at risk should someone be injured or property damaged.

It is Council’s responsibility to advise contractors of their obligations to minimise the risk to themselves, the general public and Council. An essential part of the process is the need to have a fully compliant traffic management plan for every job in the road reserve. The method of putting up a couple of signs and a few bollards here and there is not only illegal, but may carry substantial fines.

How do you address traffic management?

Traffic management involves the preparation/selection of a Traffic Control Plan (TCP) followed by the onsite implementation of the requirements of the adopted plan.

Traffic Control Plan:

  • Selection or design and implementation of TCPs must only be undertaken by person/persons who are qualified, authorised and have passed RMS approved training courses.
  • The TCP must include the name and certificate number of the accredited person.

Options for traffic control:

  • Certified traffic control providers can be located by searching Telstra’s Yellow Pages or the web.
  • In-house trained personnel. (Note: there are four levels of traffic control accreditation and you should contact the RMS on 02 6640 1300 to obtain a list of accredited training providers)

Who is the applicant?

The applicant is the company/person doing the work and the Certificate of Currency for Insurance must also be in the same name, be applicable for construction work in the road reserve.

The applicant must ensure all required documentation is attached to the application or delays will occur whilst this information is being obtained.

When is a Section 138 Works in Road Approval not required?

The only time this is not required is when all works (including all loading and unloading using machinery, such as backhoes, cranes, concrete trucks) being undertaken are carried out within the boundaries of private property.

Should this be the case, Council requires written notification to this effect.

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