What Section 138 actually is
Your driveway is two pieces of concrete with a legal line between them. From the garage to the front boundary it sits on your land. From the boundary to the kerb it sits on the road reserve, which is public land in council’s care even though you paid for the concrete and you look after it.
Section 138 of the Roads Act 1993 says nobody other than a public authority can carry out work on, over or under a public road without the consent of the roads authority, and “road” takes in the footpath, the nature strip and the kerb. For nearly every residential street in Newcastle and Lake Macquarie the roads authority is the council. On a classified road, Transport for NSW can need to agree as well.
So “Section 138 approval” is simply council’s written permission to build, change or remove the crossing: the layback in the kerb and the slab across the verge. It is not a development application, it is not part of a complying development certificate, and having either of those does not give you it.
When you need it, and when you do not
You need it when the work touches the road reserve:
- a first driveway on a new lot
- widening an existing crossing, or adding a second one
- replacing a cracked or sunken crossing, even like for like
- moving a driveway, which also means removing the old layback and reinstating kerb and grass
- connecting a stormwater pipe through the verge to the kerb, which is a road opening permit on the same application
You generally do not need it for concrete that stays inside your boundary: the driveway from the boundary to the garage, a path down the side, a patio or a shed slab. That work answers to the NSW exempt development rules instead, which set their own limits. Most driveway jobs include both pieces, which is why the approval is worth sorting before anyone books a truck.
The NSW Planning Portal, and why you may not use it
Search for Section 138 and most results send you to the NSW Planning Portal. The portal does run a Section 138 service, but only for councils that have opted in, and it publishes the list. When we checked that list in September 2026, neither City of Newcastle nor Lake Macquarie City Council was on it. Each takes driveway applications through its own front door, and the two doors are not alike.
City of Newcastle: the Section 138 (Type 1) application
- Confirm the application type. Newcastle splits Section 138 in two. Type 1 is a driveway and, where needed, a road opening permit for stormwater or service connections. Type 2 is for new public infrastructure and is not what a homeowner needs.
- Design the crossing to drawing A1300. Council’s Driveway Crossing Standard Design Details is the sheet the inspector works from. It sets a single residential crossing at 2.5 to 3.0 metres wide and a double at 2.5 to 4.5 metres, square to the kerb.
- Lodge with council. Council’s forms page for the Type 1 application now points to its online services. Council’s post approval guidance tells owners to lodge as soon as practical after development consent so the build is not held up. The Section 138 enquiry line is 02 4974 2000.
- Wait for the driveway approval letter. The drawing itself says it is to be read with the approval letter, and that grades follow the letter and AS 2890.1. Where the two differ, the letter wins.
- Book the formwork inspection before the pour. Council’s inspection page asks for at least two business days notice, with inspections carried out on weekdays between 7am and 3pm. Nothing is poured on the footway until the formwork has been seen.
Newcastle does not publish an application fee or a processing time on the pages we were able to verify, so this guide does not quote one.
Lake Macquarie City Council: the Minor Public Works application
- Register for council’s online services. Registration can take up to one business day to come through, so do it before you need it.
- Start a Minor Public Works application and choose “Application for access to property”. If a stormwater pipe or a utility is going through the verge, complete the road opening section as well.
- Attach two drawings as flattened PDFs: a site plan with the proposed driveway marked, and a driveway profile showing grades from the road to the house against natural surface levels. Council prefers A3.
- Pay the fee in the form. It is calculated inside the application and paid by card at submission. Each driveway is a separate application and a separate fee.
- Allow for assessment. Council says straightforward applications are usually processed within 10 to 15 working days, and elsewhere asks for about 21 days.
- Read the approval letter for inspections. It states whether a pre-pour or a post-pour inspection applies. That same letter is what a certifier needs to see for the driveway condition on a DA or CDC.
Council’s Asset Technical Officers take questions on 02 4921 0333.
What each council expects in the ground
| City of Newcastle (A1300) | Lake Macquarie (EGSD 201, 202) | |
|---|---|---|
| Residential width | Single 2.5 to 3.0 m, double 2.5 to 4.5 m | 3.0 m minimum, 4.0 m maximum at the kerb excluding wings, 5.0 m at the boundary |
| Slab | 100 mm minimum | 125 mm minimum |
| Mesh | SL72, top, 40 mm cover | SL72 |
| Concrete | 25 MPa at 28 days | 25 MPa at 28 days, dowelled into the kerb |
| Grade | To the approval letter and AS 2890.1, with a 1.2 m footway strip at 1 in 40 | 20 percent maximum without further approval, transitions per AS/NZS 2890.1 |
| Power pole | 750 mm clear | 750 mm clear |
| Drainage pit | 1.0 m from a kerb inlet pit | 500 mm from a stormwater pit |
| Street tree | 3.0 m from the trunk | Assessed by trunk size, replanting can be required |
| Corner | Set by approval | 6.0 m from the tangent point |
These are the councils’ published minimums for the crossing, not a description of the driveway inside your boundary, which is covered on our specification page.
Finishes: where decorative concrete stops
Inside the boundary the finish is your choice. On the crossing it is council’s.
Newcastle’s drawing specifies plain concrete with a broom finish and bevelled edges. Coloured or patterned concrete, exposed aggregate and stencilling “may be considered”, and stamped concrete, asphaltic concrete and sealer are not permitted. Lake Macquarie prefers plain concrete with a coved or broom finish, accepts coloured and stencilled concrete if sealed with a non-slip product, and accepts exposed aggregate where at least 75 percent of the stone is rhyolite or basalt. It adds that if the crossing is ever dug up, council restores in plain concrete only.
The common result on a decorative driveway is an exposed or coloured slab to the boundary and a plain broom finished crossing in front of it, with a clean saw cut between the two. It looks deliberate, it passes, and it keeps the dearer finish at $130 to $185 per m² where you see it and the plainer $95 to $130 rate where council insists. The cost guide prices both.
Where the approval sits in the job
The order that avoids delay is: measure and quote, settle the crossing width and finish, lodge the application, receive the approval letter, book the pour, call the formwork inspection, pour. The step people get wrong is lodging late, after the concreter is booked, and then holding a crew for a letter.
Either the owner or the contractor can prepare the application, and both councils hold the owner responsible for the crossing meeting the standard. Lake Macquarie also expects the contractor to be adequately insured and appropriately licensed, and leaves the Before You Dig enquiry with the owner. When you ask for a quote through this site, ask the concreter who will prepare the plan and profile and who will lodge, and have it written into the quote.
Replacing a failed crossing as part of a bigger removal and replacement job? The same approval applies, and the old layback has to come out properly.
Sources, checked September 2026
City of Newcastle: Section 138 (Type 1) application page, Post Approval Information form, standard drawing A1300 Driveway Crossing Standard Design Details (revision 2). Lake Macquarie City Council: Driveways page, Minor Public Works page, engineering standard drawings EGSD 201 and 202. NSW Planning Portal: Section 138 approvals page and its list of participating councils. Councils change fees, forms and drawings without notice, so treat the council’s current page as the authority.