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Western Australia
Planning Appeals Amendment Bill 2001
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Town Planning and
Development Act 1928
3. The Act amended 3
4. Section 2 amended 3
5. Section 7B amended 4
6. Section 8A amended 5
7. Section 8B amended 5
8. Section 10 replaced by sections 10, 10AA and 10AB 6
9. Section 18 amended 10
10. Section 26 amended 11
11. Part V replaced 12
12. Review of Town Planning and Development Act 1928 34
13. First Schedule amended 34
14. Schedules 3 and 4 inserted 35
Part 3 -- Transitional provisions
15. Interpretation 39
16. Interpretation Act 1984 not affected 39
17. Current appeals 39
18. References to Committee 40
19. Existing appointments 40
20. Submissions under Metropolitan Region Town
Planning Scheme Act 1959 41
21. Transitional regulations 41
page i
23--3
Planning Appeals Amendment Bill 2001
Contents
Part 4 -- Consequential amendments
22. Constitution Acts Amendment Act 1899 43
23. East Perth Redevelopment Act 1991 43
24. Heritage of Western Australia Act 1990 44
25. Hope Valley-Wattleup Redevelopment Act 2000 44
26. Metropolitan Region Town Planning Scheme Act 1959 45
27. Midland Redevelopment Act 1999 46
28. Strata Titles Act 1985 47
29. Subiaco Redevelopment Act 1994 49
30. Western Australian Planning Commission Act 1985 49
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Planning Appeals Amendment Bill 2001
A Bill for
An Act to amend the planning laws of Western Australia in relation
to appeals and for related and consequential purposes.
The Parliament of Western Australia enacts as follows:
page 1
Planning Appeals Amendment Bill 2001
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Planning Appeals Amendment
Act 2001.
5 2. Commencement
(1) This Act comes into operation on a day to be fixed by
proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
page 2
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 3
Part 2 -- Town Planning and Development Act 1928
3. The Act amended
The amendments in this Part are to the Town Planning and
Development Act 1928*.
5 [* Reprinted as at 3 November 2000.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 457.]
4. Section 2 amended
Section 2(1) is amended by inserting in the appropriate
10 alphabetical positions the following definitions --
"
"appeal" means an appeal made to the Tribunal under
Part V;
"deputy President" means deputy President of the
15 Tribunal;
"legal practitioner" means a practitioner within the
meaning of the Legal Practitioners Act 1893;
"member" means member of the Tribunal and
includes the President, deputy President and a
20 person appointed under clause 5 of Schedule 3;
"Metropolitan Region Scheme" has the same
meaning as it has in the Metropolitan Region Town
Planning Scheme Act 1959;
"party", in relation to an appeal, means --
25 (a) the appellant;
(b) the person who made the decision or
direction appealed against; and
(c) any person joined as a party to the appeal by
the Tribunal;
30 "President" means President of the Tribunal;
page 3
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 5
"Principal Registrar" means the Principal Registrar
of the Tribunal;
"regulations", in Part V, means regulations made
under section 75;
5 "rules" means rules of the Tribunal made under
section 74;
"Tribunal" means the Town Planning Appeal
Tribunal established by section 36;
".
10 5. Section 7B amended
(1) Section 7B(6) is amended as follows:
(a) by deleting paragraph (a) and inserting instead --
"
(a) Subject to paragraph (c), if an applicant is
15 aggrieved by the refusal of a permit or by the
conditions subject to which a permit is granted,
the applicant may appeal under Part V.
";
(b) by deleting paragraph (b);
20 (c) in paragraph (d) by deleting "to the Minister".
(2) Section 7B(7)(a) is amended as follows:
(a) by deleting "or" after subparagraph (i);
(b) in subparagraph (ii) by deleting "order," and substituting
the following --
25 " order; or ";
(c) by inserting after subparagraph (ii) the following --
"
(iii) fails to comply with a notice given to
the person under subsection (8)(a),
30 ".
page 4
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 6
(3) Section 7B(8)(b) is repealed and the following paragraphs are
inserted instead --
"
(b) The owner or owners on whom a notice is
5 served under paragraph (a) may appeal under
Part V against any direction in the notice.
(ba) If the Tribunal affirms, varies or substitutes a
direction appealed against, the owner or owners
shall comply with the direction as so affirmed,
10 varied or substituted.
".
(4) Section 7B(12)(a)(ii) is deleted and the following subparagraph
is inserted instead --
"
15 (ii) any determination appealed against by
the claimant under subsection (6) has
been affirmed in whole or in part by the
Tribunal.
".
20 6. Section 8A amended
(1) Section 8A(1) is amended by deleting "to the Minister against
the authority's decision in accordance with Part V." and
inserting instead --
"
25 against the responsible authority's decision under
Part V.
".
(2) Section 8A(3) and (4) are repealed.
7. Section 8B amended
30 Section 8B is amended by deleting "to the Minister in
accordance with" and inserting instead --
" under ".
page 5
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 8
8. Section 10 replaced by sections 10, 10AA and 10AB
Section 10 is repealed and the following sections are inserted
instead --
"
5 10. Power to direct cessation or removal of unlawful
development, or restoration or execution of work
(1) For the purposes of subsections (2) and (3) a
development is undertaken in contravention of a town
planning scheme if the development --
10 (a) is required to comply with a town planning
scheme; and
(b) is commenced, continued or carried out
otherwise than in accordance with that scheme
or otherwise than in accordance with any
15 condition imposed with respect to the
development by the responsible authority
pursuant to its powers under that scheme.
(2) If a development, or any part of a development, is
undertaken in contravention of a town planning
20 scheme, the responsible authority may give a written
direction to the owner or any other person undertaking
that development to stop, and not recommence, the
development or that part of the development that is
undertaken in contravention of the scheme.
25 (3) If a development has been undertaken in contravention
of a town planning scheme, the responsible authority
may give a written direction to the owner or any other
person who undertook the development --
(a) to remove, pull down, take up, or alter the
30 development; or
(b) to restore the land as nearly as practicable to its
condition immediately before the development
page 6
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 8
started, to the satisfaction of the responsible
authority.
(4) The responsible authority may give directions under
subsections (2) and (3)(a) and (b) in respect of the
5 same development and in the same instrument.
(5) If it appears to a responsible authority that delay in the
execution of any work to be executed under a scheme
would prejudice the efficient operation of the scheme,
the responsible authority may give a written direction
10 to the person whose duty it is to execute the work to
execute that work.
(6) A direction under subsection (3) or (5) is to specify a
time, being not less than 60 days after the service of the
direction, within which the direction is to be complied
15 with.
(7) A person who --
(a) fails to comply with a direction given to the
person under subsection (2); or
(b) fails to comply with a direction given to the
20 person under subsection (3) or (5) within the
time specified in the direction, or within any
further time allowed by the responsible
authority,
commits an offence.
25 Penalty: $50 000 and a daily penalty of $5 000.
(8) If a person commits an offence under subsection (7) or
section 10AA(5) the responsible authority --
(a) may remove, pull down, take up or alter the
development, restore the land as nearly as
30 practicable to its condition immediately before
the development started, or execute the work,
as it directed that person; and
page 7
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 8
(b) may recover from the person the costs incurred
by the responsible authority in so doing as a
debt in a court of competent jurisdiction.
10AA. Appeal against section 10 direction
5 (1) A person to whom a direction is given under section 10
may appeal against the direction under Part V.
(2) Pending the determination of an appeal against a
direction under section 10(2), the relevant direction
continues to have effect.
10 (3) On an application under this section the Tribunal
may --
(a) stay the operation of a direction under section
10(2) to which the appeal relates until the
appeal has been determined;
15 (b) order that a direction under section 10(3) to
which the appeal relates is to continue to have
effect until the appeal has been determined; or
(c) refuse the application.
(4) If the Tribunal affirms or varies a direction, or gives
20 another direction in substitution for it, the Tribunal --
(a) may direct the appellant to comply with the
direction, the direction as varied or the
substituted direction; and
(b) except where the direction is a direction to stop,
25 and not recommence, a development or part of
a development, is to specify in the direction the
time within which the appellant must comply
with the direction, being a time not less than
21 days after the direction is given.
30 (5) A person who --
(a) fails to comply with a direction given to the
person under this section to stop, and not
page 8
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 8
recommence, a development or part of a
development; or
(b) fails to comply with a direction given to the
person under this section to remove, pull down,
5 take up, or alter a development, to restore land as
nearly as practicable to its condition immediately
before the development started, or execute a
work, within the time specified in the direction,
commits an offence.
10 Penalty: $50 000 and a daily penalty of $5 000.
10AB. Requirement to comply with scheme and conditions
(1) A person who contravenes --
(a) a town planning scheme; or
(b) any condition imposed with respect to a
15 development by a responsible authority
pursuant to its powers under a town planning
scheme,
commits an offence.
Penalty: $50 000 and a daily penalty of $5 000.
20 (2) Nothing in this section prejudices or affects sections 10
and 10AA.
(3) A person may be prosecuted for an offence under this
section irrespective of whether or not a direction has
been given under section 10.
25 ".
page 9
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 9
9. Section 18 amended
Section 18(2) is repealed and the following subsections are
inserted instead --
"
5 (2) A person may make representations to the Minister if
the person is aggrieved by the failure of a local
government to --
(a) enforce effectively the observance of a town
planning scheme in force under this Act, or any
10 of the provisions of the scheme; or
(b) execute any works, which under the scheme or
this Act, the local government is required to
execute.
(2a) The Minister may determine not to take any action in
15 response to the representations or, if the Minister
considers it appropriate to do so, the Minister may refer
the representations to the Tribunal for its report and
recommendations.
(2b) For the purpose of making a report and
20 recommendations on a referral under subsection (2a),
Part V applies, with such modifications as may be
necessary, as if the referral were an appeal.
(2c) If, after holding an inquiry or receiving a report and
recommendations from the Tribunal, the Minister is
25 satisfied that the local government has failed --
(a) to enforce effectively the observance of a
scheme or a provision of a scheme; or
(b) to execute any works which the local
government is required under a scheme or this
30 Act to execute,
page 10
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 10
the Minister may order the local government to do all
things necessary to enforce the observance of the
scheme or provision or to execute the works.
".
5 10. Section 26 amended
(1) Section 26(1)(a) is repealed and the following paragraph is
inserted instead --
"
(a) An applicant may appeal under Part V
10 against --
(i) the refusal of the Commission to
approve the plan, application for title,
transfer, conveyance, lease, licence to
use and occupy or mortgage for which
15 the applicant sought approval;
(ii) the conditions affixed to the granting of
approval of the plan, application for
title, transfer, conveyance, lease, licence
to use and occupy or mortgage for
20 which the applicant sought approval; or
(iii) a decision of the Commission made
under section 24(6) in respect of a
request made by the applicant.
".
25 (2) Section 26(1)(ab) and (ad) are amended by deleting "to the
Minister" and inserting instead --
" under Part V ".
(3) Section 26(1)(c) is amended by deleting "Minister" and
inserting instead --
30 " Tribunal ".
(4) Section 26(1)(b) and (d) are deleted.
page 11
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
11. Part V replaced
Part V is repealed and the following Part is inserted instead --
"
Part V -- Appeals
5 Division 1 -- Establishment of Tribunal
36. Establishment of Town Planning Appeal Tribunal
(1) A tribunal called the Town Planning Appeal Tribunal
is established.
(2) The Tribunal is to have a seal.
10 37. Members of Tribunal
(1) The Governor is to appoint as members of the
Tribunal --
(a) a President;
(b) a deputy President;
15 (c) senior members; and
(d) ordinary members.
(2) The membership of the Tribunal is to comprise the
number of persons that the Minister considers
necessary to expeditiously deal with appeals.
20 (3) A member may be appointed on a full-time or part-time
basis.
38. Qualifications of members
(1) Each member is to be a person who, in the opinion of
the Minister, has knowledge of and experience in one
25 or more of the fields of urban and regional planning,
architecture and urban design, engineering, surveying,
environmental science, planning law, heritage matters,
public administration, commerce and industry.
page 12
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
(2) As far as practicable, the members appointed under
section 37(1) are to between them have knowledge and
experience covering all of the fields mentioned in
subsection (1).
5 (3) A person is not to hold office as a member if that
person is employed under Part 3 of the Public Sector
Management Act 1994 or is otherwise employed in a
full-time capacity by an agency or instrumentality of
the Crown.
10 (4) A person is not eligible for appointment as President or
deputy President unless the person is a legal practitioner
of not less than 8 years' practice and standing.
(5) A person is not eligible for appointment as a senior
member unless that person has, in the opinion of the
15 Minister, extensive knowledge, or experience, in
relation to a class of matter which may be dealt with by
the Tribunal.
39. Further provisions concerning members
Schedule 3 has effect with respect to the tenure,
20 remuneration and conditions of service of the members
and the other matters provided for in that Schedule.
Division 2 -- How Tribunal is constituted
40. President determines how Tribunal is constituted
(1) Subject to this section, the President is to determine
25 how the Tribunal is to be constituted for the purposes
of each appeal.
(2) For the purposes of each appeal, the Tribunal is to be
constituted by one member or by 3 members.
page 13
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
(3) Except where a direction is given under subsection (4),
an appeal --
(a) against --
(i) the determination of, or conditions
5 imposed in respect of, a planning
application to commence a development
of a value of less than $250 000 or such
other amount as is prescribed by the
regulations;
10 (ii) the determination of, or conditions
imposed in respect of, a planning
application to commence a development
of a single house on a single lot of a
value that is less than $500 000 or such
15 other amount as is prescribed by the
regulations, or any development
ancillary to that development;
(iii) the determination of, or conditions
imposed in respect of, an application for
20 approval to subdivide a lot into not
more than 3 lots; or
(b) where the appellant has elected at the time of
commencing the appeal to have the appeal
determined by a single ordinary member, and
25 the other parties to the appeal have agreed with
that election;
is to be determined by the Tribunal constituted by a
single ordinary member.
(4) If the President is of the opinion that an appeal referred
30 to in subsection (3) is likely to raise complex or
significant planning issues, the President may direct
that the appeal is to be determined by the Tribunal
constituted by a member who is not an ordinary
member or by the Tribunal constituted by 3 members.
page 14
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
(5) When dealing with an appeal to the Tribunal from a
decision referred to in section 8B or a decision relating
to an environmental condition, the Tribunal is to be
constituted by --
5 (a) a member who has knowledge of and
experience in the field of environmental
science; or
(b) 3 members, of whom at least one is to have
knowledge of and experience in the field of
10 environmental science.
(6) There may be more than one sitting of the Tribunal at
the same time.
41. President responsible for administration
Subject to this Act, the regulations and the rules, the
15 President --
(a) is to direct the business of the Tribunal;
(b) is responsible for the management of the
administrative affairs of the Tribunal; and
(c) may determine the places and times for sittings
20 of the Tribunal.
42. Delegation by President
(1) Subject to subsection (2), the President may, with the
written approval of the Minister, delegate to any senior
member or to all senior members or the Deputy
25 President or the Principal Registrar any function of the
President under this Act, the regulations or the rules.
(2) The President is not to delegate his or her functions
under section 63 or 66 to a member or to the Principal
Registrar unless that person is a legal practitioner.
page 15
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
Division 3 -- The Principal Registrar and other officers
43. Principal Registrar
(1) The Minister may appoint a person as Principal
Registrar of the Tribunal.
5 (2) The office of Principal Registrar is not an office in the
Public Service and is not to be included in the Senior
Executive Service provided for by the Public Sector
Management Act 1994.
(3) The Principal Registrar --
10 (a) is the executive officer of the Tribunal; and
(b) has the functions conferred by or under this
Act, the regulations, the rules or any other Act.
(4) The Principal Registrar may be appointed as a senior
member of the Tribunal.
15 (5) Schedule 4 has effect with respect to the tenure,
remuneration and conditions of service of the Principal
Registrar and the other matters provided for in that
Schedule.
44. President may give Principal Registrar directions
20 (1) The President may from time to time give directions to
the Principal Registrar with respect to the performance
of any of the Principal Registrar's functions, either
generally or with respect to a particular matter, and the
Principal Registrar is to give effect to any such
25 direction.
(2) Nothing in this section empowers the President to give
directions to the Principal Registrar with respect to the
performance of his or her functions as a member, if the
Principal Registrar is a member.
page 16
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
45. Other officers of the Tribunal
There are to be appointed under and subject to Part 3 of
the Public Sector Management Act 1994 --
(a) a Registrar of the Tribunal; and
5 (b) such other officers as are necessary to assist in
the administration of the Tribunal.
46. Functions of Registrar
The Registrar is to --
(a) assist the Principal Registrar in the
10 administration of the Tribunal;
(b) keep a register of all appeals made to the
Tribunal; and
(c) keep a register of decisions of the Tribunal on
each appeal and keep copies of the reasons
15 given for those decisions.
Division 4 -- Proceedings of Tribunal
47. Appeals to Tribunal
(1) A person may appeal, or refer a matter, to the Appeal
Tribunal if a right to appeal, or refer a matter, under
20 this Part is conferred on the person by --
(a) this Act or any town planning scheme in force
under this Act;
(b) the Metropolitan Region Town Planning
Scheme Act 1959 or the Metropolitan Region
25 Scheme;
(c) the Western Australian Planning Commission
Act 1985 or any regional planning scheme
within the meaning of that Act;
(d) the Heritage of Western Australia Act 1990;
page 17
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
(e) the Strata Titles Act 1985;
(f) the East Perth Redevelopment Act 1991;
(g) the Subiaco Redevelopment Act 1994;
(h) the Midland Redevelopment Act 1999;
5 (i) the Hope Valley-Wattleup Redevelopment
Act 2000; or
(j) any other written law.
(2) Where a person is entitled under the provisions of a
town planning scheme in force under this Act, the
10 Metropolitan Region Scheme or a regional planning
scheme to appeal against the exercise by the
responsible authority of a discretionary power, the
appeal is to be made to the Tribunal under this Part.
(3) Subsection (2) has effect despite any provision in a
15 town planning scheme, Metropolitan Region Scheme
or regional planning scheme that provides for the
appeal to be otherwise made.
48. Commencement of appeal
An appeal is commenced by giving notice, including
20 the grounds of appeal, in the time and manner
prescribed, to the persons and bodies prescribed.
49. Notice of hearings
(1) The Principal Registrar is to give notice, in accordance
with the regulations or rules, of the time and place for
25 the hearing of the appeal to --
(a) each party to the appeal; and
(b) each other person entitled to notice under the
regulations or rules.
(2) If a person, including a party, to whom notice has been
30 given in accordance with the regulations or rules fails
page 18
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
to attend, the hearing may be held in the absence of
that person.
50. Determination of appeals
(1) On an appeal the Tribunal may by order --
5 (a) affirm the determination or direction appealed
against;
(b) vary the determination or direction appealed
against;
(c) set aside the determination or direction
10 appealed against; or
(d) set aside the determination or direction
appealed against and make another
determination or direction in substitution for it.
(2) The Tribunal may also make any incidental or ancillary
15 orders.
(3) The power of the Tribunal to make an order includes a
power to make the order subject to such conditions as
the Tribunal thinks fit.
51. Procedure of Tribunal
20 (1) In the performance of its functions the Tribunal,
however constituted --
(a) is bound by the rules of natural justice;
(b) is not bound by the rules of evidence;
(c) may inform itself of any matter as it thinks fit;
25 (d) is to encourage the parties to an appeal to reach
agreement on some or all of the issues arising
in the appeal;
(e) is to deal with each appeal with as little
formality and technicality, and determine each
30 appeal with as much speed, as the requirements
page 19
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
of this Act, the regulations and the rules and a
proper consideration of the matter before it
permit; and
(f) subject to this Act, the regulations and the
5 rules, may deal with appeals, and receive
submissions and representations in relation to
any appeal before it, as it thinks fit.
(2) Without limiting subsection (1)(a), the Tribunal is to
ensure that each party to an appeal before it is given a
10 reasonable opportunity to --
(a) present the case of that party;
(b) inspect any document to which the Tribunal
proposes to have regard in making a
determination in that appeal; and
15 (c) to make submissions in relation to those
documents.
(3) Subject to subsection (4), a hearing of an appeal before
the Tribunal is to be in public.
(4) If the Tribunal is satisfied that it is desirable to do so
20 by reason of the confidential nature of any evidence or
matter or for any other reason, it may, of its own
motion or on the application of a party, make an order
that the hearing be conducted wholly or partly in
private.
25 (5) In the circumstances set out in subsection (6) the
Tribunal may order --
(a) that any evidence given before it; or
(b) that the contents of any documents produced to
it,
30 must not be published except in the manner and to the
persons (if any) specified by the Tribunal.
page 20
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
(6) The Tribunal may make an order under subsection (5)
if the Tribunal considers it is necessary to do so --
(a) to avoid prejudicing the administration of
justice;
5 (b) to avoid the publication of confidential
information; or
(c) for any other reason in the interests of justice or
safety.
(7) If the parties to an appeal agree, the Tribunal may
10 conduct all or part of an appeal entirely on the basis of
documents, without any physical appearance by the
parties or their representatives or witnesses.
52. Failure to comply with summons or requirement of
Tribunal
15 (1) A person served with a summons to give evidence
before the Tribunal must not, without reasonable
excuse, fail to attend as required by the summons.
Penalty: $5 000.
(2) A person required by the Tribunal to produce any
20 documents, plans or other papers in the custody or
control of the person must not, without reasonable
excuse, fail to comply with the requirement.
Penalty: $25 000.
(3) A person appearing before the Tribunal must not,
25 without reasonable excuse --
(a) when required either to take an oath or make an
affirmation - refuse or fail to comply with the
requirement; or
(b) refuse or fail to answer a question that he or she
30 is required to answer by the member presiding.
Penalty: $10 000.
page 21
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
53. False or misleading evidence
A person must not give evidence to the Tribunal that
the person knows is false or misleading.
Penalty: $25 000.
5 54. Offences against Tribunal
A person must not --
(a) interrupt the proceedings of the Tribunal;
(b) insult the Tribunal or a member of the Tribunal;
or
10 (c) create a disturbance, or take part in creating or
continuing a disturbance, in or near a place
where the Tribunal is sitting.
Penalty: $10 000.
55. Protection of members, practitioners, witnesses and
15 others
(1) A member has, in the performance of his or her
functions as a member, the same protection and
immunity as a Judge of the Supreme Court has in the
performance of his or her duties as a judge.
20 (2) A person representing a party before the Tribunal has
the same protection and immunity as a legal
practitioner has in representing a party in proceedings
in the Supreme Court.
(3) A party to a proceeding has the same protection and
25 immunity as a party to proceedings in the Supreme
Court.
(4) A person appearing as a witness before the Tribunal
has the same protection as a witness in proceedings in
the Supreme Court.
page 22
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
56. Evidentiary provision
In all courts and before all persons and bodies
authorised to receive evidence --
(a) a document purporting to be a copy of a
5 decision or order of the Tribunal and purporting
to be certified by the Registrar to be such a
copy is admissible as a true copy of a decision
or order of the Tribunal; and
(b) judicial notice is to be taken of the signature of
10 the Registrar on a certificate mentioned in
paragraph (a).
57. Who presides
Where the Tribunal is constituted by more than one
member --
15 (a) if the President is a member, the President
presides;
(b) if the President is not a member but the deputy
President is, the deputy President presides;
(c) if neither the President nor the deputy President
20 is a member but a senior member is, the senior
member presides or, if there is more than one,
then the senior member nominated by the
President for this purpose presides; and
(d) if the members are all ordinary members, then
25 the member nominated by the President for this
purpose presides.
58. Representation
(1) A party to an appeal may --
(a) appear personally; or
30 (b) subject to subsection (4), be represented by an
agent or legal practitioner.
page 23
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
(2) A person making a submission under section 62
may --
(a) appear personally; or
(b) be represented by an agent or, if any party to
5 the appeal is entitled to be so represented, by a
legal practitioner.
(3) An appellant in an appeal referred to in section 40(3)
may, at the time the appeal is commenced, elect that no
party to the appeal is to be represented by a legal
10 practitioner.
(4) If an appellant makes an election under subsection (3),
no party to the appeal is entitled to be represented by a
legal practitioner unless --
(a) the President has given a direction under
15 section 40(4) in respect of the appeal;
(b) the President, having regard to whether the
appeal involves a question of law, directs that
the parties may be so represented;
(c) the appellant is a legal practitioner; or
20 (d) the appellant withdraws the election.
59. Powers with respect to witnesses and evidence
The Tribunal may --
(a) summon a person required by a party or by the
Tribunal to give evidence before it;
25 (b) examine a person on oath or affirmation; and
(c) require a person to produce any documents,
plans or other papers in the custody or control
of the person.
page 24
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
60. Tribunal to invite submissions from Minister for the
Environment before determining certain appeals
Before determining an appeal to the Tribunal from a
decision referred to in section 8B or a decision relating
5 to an environmental condition, the Tribunal is to invite
the Minister for the Environment to make a submission
in respect of that appeal.
61. Tribunal to have regard to certain matters
(1) In determining any appeal the Appeal Tribunal is to
10 have due regard to relevant planning considerations
including --
(a) any approved statement of planning policy
prepared under section 5AA; and
(b) any management programme for the time being
15 in force under Part 3 of the Swan River Trust
Act 1988, which may affect the subject matter
of the appeal.
(2) In the case of an appeal that relates to land to which the
Heritage of Western Australia Act 1990 applies, and
20 whether or not a statement of planning policy provides
for the conservation of that land, the Tribunal --
(a) is to refer the matter to the Heritage Council for
advice;
(b) may receive or hear submissions made on
25 behalf of the Heritage Council;
(c) may join the Heritage Council as a party to the
appeal; and
(d) is to have due regard to the objects of the
Heritage of Western Australia Act 1990.
30 (3) In determining an appeal against the determination of,
or conditions imposed in respect of, an application for
approval to subdivide a lot into not more than 3 lots,
page 25
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
the Tribunal may have regard to claims of hardship
raised by the appellant and proved to the satisfaction of
the Tribunal, if the Tribunal is of the opinion that such
regard will not affect the application of sound planning
5 principles.
62. Tribunal may receive or hear submissions from
persons who are not parties
The Tribunal may receive or hear submissions from a
person who is not a party to an appeal in respect of the
10 appeal if the Tribunal is of the opinion that that person
has a sufficient interest in the appeal.
63. Questions of law
If the Tribunal is constituted without a member who is
a legal practitioner, a question of law arising in the
15 appeal may be decided in accordance with the opinion
of the President.
64. Written reasons for determination and publication
of reasons
The Tribunal is to --
20 (a) give to each party to an appeal written reasons
for the determination of the Tribunal on the
appeal;
(b) publish those reasons in the manner prescribed
by the regulations; and
25 (c) upon payment of a fee determined in the
manner prescribed by the regulations, supply a
copy of those reasons to any other person.
page 26
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
65. Costs
(1) Each party to an appeal is to bear their own costs of the
appeal except to the extent that provision is otherwise
made under subsection (2) or (3).
5 (2) Where in the opinion of the Tribunal a party to an
appeal has behaved unreasonably, vexatiously or
frivolously in relation to the appeal, the Tribunal may
order that that party pay such costs as the Tribunal
thinks fit to any other party who has not so behaved.
10 (3) The Tribunal may award such costs as it thinks fit
against an appellant who withdraws an appeal, and in
favour of any other party to the appeal.
(4) If any costs ordered by the Tribunal to be paid by a
party are not paid, the party so entitled may recover the
15 costs from the party against whom the order was made
in a court of competent jurisdiction.
66. Review by President
(1) The Tribunal constituted by the President may, of its
own motion or upon an application made under
20 subsection (3), review a direction, determination or
order of the Tribunal, when constituted without a
member who is a legal practitioner, upon a matter
involving a question of law.
(2) The Tribunal constituted by the President may --
25 (a) affirm the direction, determination or order; or
(b) revoke the direction, determination or order and
substitute another direction, determination or
order that the Tribunal could have made in
relation to that matter.
30 (3) An application for review of a direction, determination
or order upon a matter involving a question of law may
be made, in accordance with the regulations or rules,
page 27
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
by a party to the appeal within one month after the
direction, determination or order is given to the party.
(4) The President is not to review a direction,
determination or order upon a matter involving a
5 question of law if the President has given an opinion on
that question of law under section 63.
(5) A review by the Tribunal --
(a) of its own motion is not to be made later than
one month after the direction, determination or
10 order is given to the party; or
(b) on the application of a party is not to be made
later than one month after the application is
made.
67. Appeal to Supreme Court on question of law
15 (1) Subject to subsection (2), a person aggrieved by a
direction, determination, or order of the Tribunal in
proceedings to which the person was a party may
appeal to the Supreme Court against the direction,
determination, or order.
20 (2) No appeal lies against a direction, determination, or
order of the Tribunal except on a question of law.
(3) An appeal under this section is to be instituted within
the time, and in accordance with the procedure,
prescribed by rules of the Supreme Court.
25 (4) The Supreme Court may make such order as to costs as
it thinks fit in relation to an appeal to the Supreme
Court under this section.
68. Determination of Tribunal final
On an appeal to the Tribunal the determination of the
30 Tribunal is final except as provided in sections 66 and 67.
page 28
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
Division 5 -- Intervention by Minister
69. Minister may make submissions
(1) Where it appears to the Tribunal that an appeal may be
determined in a way which will have a substantial
5 effect on the future planning of the area in which the
land the subject of the appeal is situated the Tribunal
may invite the Minister to make a submission as to the
matters the Minister considers to be relevant to the
issues before the Tribunal.
10 (2) Where it appears to the Minister that an appeal may be
determined in a way which will have a substantial
effect on the future planning of the area in which the
land the subject of the appeal is situated the Minister
may make a submission as to the matters which the
15 Minister considers to be relevant to the issues before
the Tribunal.
(3) A submission may be made by the Minister in writing
or orally on behalf of the Minister by a representative
who appears at a hearing of the appeal, and may be
20 made at any time before the determination of the
appeal.
(4) When a written submission has been made by the
Minister, a copy is to be given to the parties who are in
any case to be given an opportunity of making further
25 submissions to the Tribunal.
(5) In this section --
(a) where the area in which the land the subject of
the appeal is situate includes or comprises land
or waters that are within or abut the
30 management area within the meaning of the
Swan River Trust Act 1988, "Minister"
includes the Minister to whom the
administration of that Act is committed; and
page 29
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
(b) where the area in which the land the subject of
the appeal is situate includes, or is included in,
or abuts any land or water to which an entry in
the Register maintained under section 46 of the
5 Heritage of Western Australia Act 1990 relates,
"Minister" includes the Minister to whom the
administration of that Act is committed.
70. Minister may call in appeal
(1) This section applies to an appeal if the Minister
10 considers that the appeal raises issues of such State or
regional importance that it would be appropriate for the
appeal to be determined by the Minister.
(2) The Minister may direct --
(a) the Principal Registrar to refer an appeal to
15 which this section applies to the Minister for
determination; or
(b) the Tribunal to hear the appeal but, without
determining it, refer it with recommendations to
the Minister for determination.
20 (3) The Minister cannot give a direction under
subsection (2) --
(a) in respect of an appeal made under the Heritage
of Western Australia Act 1990;
(b) more than 14 days after notice of the appeal
25 was lodged with the Tribunal; or
(c) after a final determination has been made in
relation to the appeal.
(4) The Minister, within 14 days after a direction is given,
is to cause a copy of it to be published in the Gazette
30 and, as soon as is practicable, is to cause a copy of it to
be laid before each House of Parliament.
page 30
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
(5) If the Minister gives a direction under
subsection (2)(a), each party to the appeal may present
the case of that party to the Minister.
(6) The Minister is to have regard to the submissions of the
5 parties and may have regard to any other submission
received by the Minister.
(7) A copy or transcript of any submission to which the
Minister has regard is to be --
(a) given to each party to the appeal; and
10 (b) published in the manner prescribed by the
regulations.
71. Determination of appeal by Minister
(1) In determining an appeal the Minister is not limited to
planning considerations but may make the
15 determination having regard to any other matter
affecting the public interest.
(2) When the Minister determines an appeal that
determination has effect according to its tenor.
(3) Where an appeal is referred to the Minister under
20 section 70(2)(b) the Registrar is to --
(a) give a copy of the recommendations that
accompanied the referral to each party to the
appeal within a reasonable time after the
referral; and
25 (b) make a copy of the recommendations available
during office hours for inspection by any
person without charge.
(4) The Minister is to --
(a) give to each party written reasons for the
30 determination of the Minister on the appeal;
page 31
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 11
(b) as soon as is practicable, cause a copy of those
reasons to be laid before each House of
Parliament;
(c) upon payment of a fee determined in the
5 manner prescribed by the regulations, supply a
copy of those reasons to any other person.
(5) The decision of the Minister is final.
Division 6 -- Miscellaneous
72. Judicial notice of seal and signatures
10 All courts, judges and persons acting judicially are to
take notice of --
(a) the seal of the Tribunal;
(b) the signature of the President, deputy President,
any other member and the Principal Registrar;
15 and
(c) the fact that that person is or was the President,
deputy President, member or Principal
Registrar, as the case may be, at the relevant
time.
20 73. Immunity of Tribunal and officers
No liability attaches to a member or the Principal
Registrar or any other officer of the Tribunal for any
act or omission by that person, or by the Tribunal, in
good faith, and in the exercise or purported exercise of
25 that person's functions, or the functions of the
Tribunal, under this Act.
page 32
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 11
74. Rules
(1) The President is to make such rules under this Act
regulating --
(a) the practice and procedure to be followed in, or
5 for the purposes of, an appeal;
(b) the forms to be used in relation to an appeal;
(c) the practice and procedure to be followed in the
mediation and conciliation of an appeal, and
other matters related to mediation and
10 conciliation;
(d) any other matters,
as are necessary or convenient for the efficient
operation of the Tribunal.
(2) Without limiting subsection (1), the rules may
15 empower the Tribunal to make and enforce such orders
as it thinks necessary with respect to interlocutory and
procedural matters, and for those purposes the rules
may apply all or any of the Supreme Court Rules 1971.
(3) Section 42 of the Interpretation Act 1984 applies to
20 rules made under this section.
75. Regulations
(1) The Governor may make such regulations as are
necessary or convenient for giving effect to the
provisions of this Part in respect of appeals.
25 (2) Without limiting subsection (1) the Governor may
make regulations for or with respect to the
following --
(a) fees payable in respect of any appeal;
(b) any matter for or with respect to which rules
30 may be made.
page 33
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 12
(3) If a regulation is inconsistent with a rule, the regulation
prevails to the extent of the inconsistency.
".
12. Review of Town Planning and Development Act 1928
5 (1) The Minister is to carry out a review of the operation of the
Town Planning and Development Act 1928, as amended by this
Act, on the second anniversary of the coming into operation of
section 11 of this Act.
(2) In the course of that review the Minister is to consider and have
10 regard to --
(a) the operation and effectiveness of the Town Planning
Appeal Tribunal;
(b) the operation and effectiveness of sections 40(3), 42
and 43(3)(b) of the Town Planning and Development
15 Act 1928 as amended by this Act; and
(c) such other matters as appear to the Minister to be
relevant to the operation and effectiveness of Part V of
that Act.
(3) The Minister is to prepare a report based on the review and, as
20 soon as is practicable after its preparation, cause the report to be
laid before each House of Parliament.
13. First Schedule amended
The First Schedule item 27A is amended by deleting "Minister"
and inserting instead --
25 " Tribunal ".
page 34
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 14
14. Schedules 3 and 4 inserted
After the Second Schedule the following Schedules are
inserted --
"
5 Schedule 3 -- The Tribunal
[s. 39]
1. Term of office
(1) Subject to this clause and clause 2 --
(a) the President, deputy President and a senior member
10 other than the Principal Registrar hold office for a
term of 5 years and, upon the expiration of the term
are eligible for reappointment for one or more terms
of 5 years;
(b) the Principal Registrar, if appointed as a senior
15 member, holds office for so long as he or she holds
the office of Principal Registrar; and
(c) an ordinary member holds office for a term of
3 years and, upon expiration of the term, is eligible
for reappointment for one or more terms of 3 years.
20 (2) Notwithstanding anything in this Act, where the term of
office of a member has expired or the member has resigned,
the member may, with the approval of the Minister,
continue in office for the purpose of completing the hearing
and determination of any appeal that member has entered
25 upon.
2. Removal and resignation
(1) The Governor may remove a member from office on the
grounds of --
(a) mental or physical incapacity to carry out
30 satisfactorily the duties of a member;
(b) neglect of duty; or
(c) misconduct.
page 35
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 14
(2) A member may resign office by written notice delivered to
the Minister.
3. Leave of absence
The President may grant leave of absence to a member on
5 such terms and conditions as the President thinks fit but
leave of absence is not to be granted for a period exceeding
6 months.
4. Deputy President
The deputy President is to act as President during the
10 unavailability or absence of the President and while so
acting may perform the functions of the President.
5. Acting members
(1) If the deputy President is required to act as President but the
deputy President --
15 (a) is unavailable or absent; or
(b) disqualifies himself or herself in respect of a
particular appeal by reason of the possibility of
conflict of interest,
the Minister may appoint a person who has the same
20 qualification for appointment as is required of the President
to act in the place of the President during the unavailability
or absence or in the particular appeal as the case may be,
and for such further time as is necessary to complete any
hearing and determination of any appeal that person has
25 entered upon.
(2) Where a member who is deputy President is performing the
functions of the President, the Minister may appoint another
eligible person to act in the place of the deputy President.
(3) If another member is unavailable or absent, the Minister
30 may appoint a person to act in the place of that member
during the unavailability or absence, and for such further
time as is necessary to complete any hearing and
determination of any appeal that person has entered upon.
page 36
Planning Appeals Amendment Bill 2001
Town Planning and Development Act 1928 Part 2
s. 14
(4) While acting in the place of a member, the acting member
has all of the functions, powers and immunities of the
member.
(5) No act or omission of a person acting in the place of another
5 under this clause or clause 4 is to be questioned on the
ground that the occasion for the appointment or so acting
had not arisen or had ceased.
6. Remuneration, allowances and conditions of service
(1) A member is to be paid such remuneration and allowances
10 in respect of the performance of his or her functions as the
Minister from time to time determines in his or her case.
(2) Subclause (1) has effect subject to the Salaries and
Allowances Act 1975, if that Act applies to the member.
(3) Subject to this Schedule, the Minister may determine other
15 terms and conditions of service (if any) that apply to a
member.
(4) A determination is only to be made after having regard to
the recommendation of the Minister for Public Sector
Management.
20 Schedule 4 -- The Principal Registrar
[s. 43]
1. Term of office
Subject to this clause and clause 2, the Principal Registrar
holds office for a term, not exceeding 5 years, specified in
25 the instrument of appointment and is eligible for
reappointment.
2. Removal and resignation
(1) The Minister may remove the Principal Registrar from
office on the grounds of --
30 (a) mental or physical incapacity to carry out
satisfactorily the duties of a member;
page 37
Planning Appeals Amendment Bill 2001
Part 2 Town Planning and Development Act 1928
s. 14
(b) neglect of duty; or
(c) misconduct.
(2) The Principal Registrar may resign office by written notice
delivered to the Minister.
5 3. Salary, entitlements and conditions of service
(1) Subject to the Salaries and Allowances Act 1975, the
Principal Registrar --
(a) is to be paid salary and allowances at a rate per year
determined by the Minister; and
10 (b) has the same annual leave, sick leave and long
service leave entitlements as a permanent officer of
the Public Service.
(2) Subject to this Schedule, the Minister may determine other
terms and conditions of service (if any) that apply to the
15 Principal Registrar.
(3) A determination is only to be made after having regard to
the recommendation of the Minister for Public Sector
Management.
4. Acting Principal Registrar
20 (1) If the Principal Registrar is unavailable or absent, the
Minister may appoint a person to act in the place of the
Principal Registrar during the unavailability or absence.
(2) While acting in the place of the Principal Registrar, the
acting Principal Registrar has all of the functions, powers
25 and immunities of the Principal Registrar.
(3) No act or omission of a person acting in the place of another
under this section is to be questioned on the ground that the
occasion for the appointment or for so acting had not arisen
or had ceased.
30 ".
page 38
Planning Appeals Amendment Bill 2001
Transitional provisions Part 3
s. 15
Part 3 -- Transitional provisions
15. Interpretation
In this Part --
"commencement day" means the day on which section 11 of
5 this Act comes into operation;
"new Part" means Part V of the Town Planning and
Development Act 1928 as inserted by this Act;
"repealed Part" means Part V of the Town Planning and
Development Act 1928 as repealed by section 11 of this
10 Act.
16. Interpretation Act 1984 not affected
The provisions of this Part do not affect the application of the
Interpretation Act 1984 to and in relation to the repeal effected
by section 11 of this Act.
15 17. Current appeals
(1) In this section --
"appeal" means an appeal within the meaning of section 37 of
the repealed Part.
(2) Subject to subsection (4), an appeal commenced before the
20 commencement day but not finally determined on or before that
day, may be dealt with and determined under the repealed Part
as if section 11 of this Act were not in operation.
(3) Despite section 19(2)(a), a person who is a member of the Town
Planning Appeal Tribunal under the repealed Part immediately
25 before the commencement day may continue in office for the
purpose of dealing with and determining an appeal commenced
before commencement day but not finally determined on or
before that day.
page 39
Planning Appeals Amendment Bill 2001
Part 3 Transitional provisions
s. 18
(4) If an appeal has been made to the Minister after 1 July 2001 but
not finally determined before the commencement day, the appeal
may be referred by the Minister to the Town Planning Appeal
Tribunal for determination and the Tribunal has the same powers
5 and functions in relation to the appeal as if the appeal had been
made to the Tribunal after the commencement day.
18. References to Committee
(1) Unless the context otherwise requires, where in any written law
or in any document of any other kind there is a reference to an
10 appeal to the Town Planning Appeal Committee that reference
is to be read and construed as a reference to an appeal to the
Tribunal within the meaning of the Town Planning and
Development Act 1928 as amended by this Act.
(2) Unless the context otherwise requires, where in any written law
15 or in any document of any other kind there is a reference to a
decision or determination of the Town Planning Appeal
Committee that reference is to be read and construed as a
reference to a decision or determination of the Tribunal within
the meaning of the Town Planning and Development Act 1928
20 as amended by this Act.
19. Existing appointments
(1) On and after the commencement day --
(a) the Chairman of the Appeal Tribunal under the repealed
Part immediately before the commencement day is taken
25 to have been appointed as President of the Tribunal
under and subject to the Town Planning and
Development Act 1928 as amended by this Act and is to
be taken to have been so appointed for a term expiring
on the day on which his term as Chairman would, but
30 for this Act, have expired;
(b) the Registrar of the Appeal Tribunal under the repealed
Part immediately before the commencement day is taken
to be the Registrar of the Tribunal for the purposes of
page 40
Planning Appeals Amendment Bill 2001
Transitional provisions Part 3
s. 20
the Town Planning and Development Act 1928 as
amended by this Act under and subject to Part 3 of the
Public Sector Management Act 1994.
(2) On the commencement day any person who immediately before
5 that day held the office of --
(a) a member or deputy member of the Appeal Tribunal
under the Town Planning and Development Act 1928; or
(b) a member of the Town Planning Appeal Committee
under the Town Planning and Development Act 1928,
10 vacates that office.
20. Submissions under Metropolitan Region Town Planning
Scheme Act 1959
On the coming into operation of section 26 of this Act, any
submission received by the Minister under section 33A of the
15 Metropolitan Region Town Planning Scheme Act 1959, and not
reported on under section 33A(5) of that Act, is to be dealt with
by the Commission as if the submission had been received by
the Commission under section 33A of the Metropolitan Region
Town Planning Scheme Act 1959 as amended by this Act.
20 21. Transitional regulations
(1) If there is no sufficient provision in this Part for dealing with a
matter that needs to be dealt with for the purpose of the
transition from the repealed Part to the new Part, regulations
may prescribe all matters that are required or necessary or
25 convenient to be prescribed for dealing with the matter.
(2) Regulations under subsection (1) may provide that specific
provisions of the Town Planning and Development Act 1928 as
amended by this Act or of subsidiary legislation made under
that Act --
30 (a) do not apply; or
(b) apply with or without specified modifications,
to or in relation to any matter or thing.
page 41
Planning Appeals Amendment Bill 2001
Part 3 Transitional provisions
s. 21
(3) If regulations made under subsection (1) and published in the
Gazette are expressed to take effect on a day that is earlier than
the day on which they are published, the regulations have effect
accordingly.
5 (4) To the extent that a regulation made under subsection (1) has
effect before the day of its publication in the Gazette, it does
not --
(a) affect in a manner prejudicial to any person (other than
the State), the right of that person existing before the
10 day of its publication; or
(b) impose liabilities on any person (other than the State) in
respect of anything done or omitted to be done before
the day of its publication.
(5) This section expires on the first anniversary of the Planning
15 Appeals Amendment Act 2002 being assented to.
page 42
Planning Appeals Amendment Bill 2001
Consequential amendments Part 4
s. 22
Part 4 -- Consequential amendments
22. Constitution Acts Amendment Act 1899
Schedule V Part 3 of the Constitution Acts Amendment
Act 1899* is amended by deleting "The Town Planning Appeal
5 Committee constituted under the Town Planning and
Development Act 1928.".
[* Reprinted as at 8 June 2001.]
23. East Perth Redevelopment Act 1991
(1) Section 47(2) of the East Perth Redevelopment Act 1991* is
10 amended by deleting ", within the period specified in the notice,
appeal to the Minister against the direction, and on such an
appeal the Minister may confirm, vary or cancel the direction."
and inserting instead --
"
15 appeal under Part V of the Town Planning Act against
the direction.
".
[* Reprinted as at 27 August 1999.]
(2) Section 47(4) of the East Perth Redevelopment Act 1991 is
20 amended as follows:
(a) by deleting "Minister may, where he or she confirms or
varies the direction under subsection (2)" and inserting
instead --
"
25 Town Planning Appeal Tribunal may, where it
confirms or varies the direction
";
(b) by deleting "given by the Minister" and inserting
instead --
30 " given by the Town Planning Appeal Tribunal ".
page 43
Planning Appeals Amendment Bill 2001
Part 4 Consequential amendments
s. 24
24. Heritage of Western Australia Act 1990
Section 60(1) of the Heritage of Western Australia Act 1990* is
amended as follows:
(a) by deleting "hear and";
5 (b) by deleting "under section 38" and inserting instead --
" of the referral as if it were an appeal under Part V ".
[* Reprinted as at 1 June 2001.]
25. Hope Valley-Wattleup Redevelopment Act 2000
(1) Section 31(2) of the Hope Valley-Wattleup Redevelopment
10 Act 2000* is amended by deleting ", within the period specified
in the notice, appeal to the Minister against the direction, and on
the appeal the Minister may confirm, vary or cancel the
direction." and inserting instead --
"
15 appeal under Part V of the Town Planning Act against
the direction.
".
[* Act No. 77 of 2000.]
(2) Section 31(4) of the Hope Valley-Wattleup Redevelopment
20 Act 2000 is amended by deleting "Minister confirms or varies
the direction under subsection (2), the Minister" and inserting
instead --
"
Town Planning Appeal Tribunal confirms or varies the
25 direction, the Town Planning Appeal Tribunal
".
page 44
Planning Appeals Amendment Bill 2001
Consequential amendments Part 4
s. 26
26. Metropolitan Region Town Planning Scheme Act 1959
(1) The amendments in this section are to the Metropolitan Region
Town Planning Scheme Act 1959*.
[* Reprinted as at 4 February 2000.
5 For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 283.]
(2) Section 33A(2)(b)(i) is amended by deleting "Minister" and
inserting instead --
" Commission ".
10 (3) Section 33A(5) and (6) are repealed and the following
subsection is inserted instead --
"
(5) As soon as practicable after receiving submissions in
relation to a proposed amendment, the Commission
15 shall consider, and make a report and recommendation
to the Minister on, those submissions.
".
(4) Section 33A(9) is repealed.
(5) Section 35F(2) is amended by deleting "section 53(2)" and
20 inserting instead --
" section 56(2) ".
(6) Section 43(3) is repealed and the following subsections are
inserted instead --
"
25 (3) An owner on whom a notice is served under this
section may appeal under Part V of the Town Planning
Act against any direction contained in the notice.
(3a) If the Town Planning Appeal Tribunal confirms or varies
the direction, the Town Planning Appeal Tribunal may,
30 by notice in writing served on the owner, direct the owner
to comply with the direction as so confirmed or varied,
page 45
Planning Appeals Amendment Bill 2001
Part 4 Consequential amendments
s. 27
within a period of not less than 40 days after the service
of the notice, as is specified in the notice.
".
(7) Section 43(5)(a) is amended as follows:
5 (a) in subparagraph (i) by inserting after "directions" the
following --
" within the time specified in the notice ";
(b) in subparagraph (ii) by deleting "(3)," and inserting
instead --
10 " (3); or ";
(c) by deleting "within the time specified in the notice; or".
(8) Section 43(5)(b) is amended by deleting "Minister" and
inserting instead --
" Town Planning Appeal Tribunal ".
15 27. Midland Redevelopment Act 1999
(1) Section 54(2) of the Midland Redevelopment Act 1999* is
amended by deleting ", within the period specified in the notice,
appeal to the Minister against the direction, and on the appeal
the Minister may confirm, vary or cancel the direction." and
20 inserting instead --
"
appeal under Part V of the Town Planning Act against
the direction.
".
25 [* Act No. 38 of 1999.]
(2) Section 54(4) of the Midland Redevelopment Act 1999 is
amended by deleting "Minister confirms or varies the direction
under subsection (2), the Minister" and inserting instead --
"
30 Town Planning Appeal Tribunal confirms or varies the
direction, the Town Planning Appeal Tribunal
".
page 46
Planning Appeals Amendment Bill 2001
Consequential amendments Part 4
s. 28
28. Strata Titles Act 1985
(1) The amendments in this section are to the Strata Titles
Act 1985*.
[* Reprinted as at 1 July 1999.
5 For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 433.]
(2) Section 25B(3) is repealed and the following subsection is
inserted instead --
"
10 (3) If the Town Planning Appeal Tribunal upholds an
appeal under section 26 of the Town Planning and
Development Act 1928 against the refusal or failure of
the Commission to give an approval referred to in
subsection (2) --
15 (a) the Tribunal shall issue to the applicant a
certificate certifying that the appeal has been
upheld; and
(b) the certificate shall be deemed to be the
approval of the Commission.
20 ".
(3) Section 26(5) is amended by deleting "to the Minister to whom
the administration of the Town Planning and Development
Act 1928 is for the time being committed by the Governor or to
the Town Planning Appeal Tribunal constituted under that Act"
25 and inserting instead --
"
under Part V of the Town Planning and Development
Act 1928
".
30 (4) Section 26(6) is repealed.
page 47
Planning Appeals Amendment Bill 2001
Part 4 Consequential amendments
s. 28
(5) Section 26(7) is amended as follows:
(a) by deleting "this section, other than an appeal to the
Town Planning Appeal Tribunal," and inserting
instead --
5 " subsection (4) ";
(b) by deleting "or (5)".
(6) Section 26(8) is amended by deleting "(4) or".
(7) Section 26(9) is amended by deleting "relevant".
(8) Section 26(10) is amended by deleting "a Minister" and
10 inserting instead --
" the Minister ".
(9) Section 26(11) is amended by deleting "a Minister" and
inserting instead --
" the Minister ".
15 (10) Section 27(3) is amended by deleting "to the Minister to whom
the administration of the Town Planning and Development
Act 1928 is for the time being committed by the Governor or to
the Town Planning Appeal Tribunal constituted under that Act"
and inserting instead --
20 "
under Part V of the Town Planning and Development
Act 1928
".
(11) Section 27(4) and (5) are repealed.
25 (12) Section 27(7) is amended as follows:
(a) by deleting "Minister or the" in the 4 places where it
occurs;
(b) by deleting ", as the case may be,".
(13) Section 27(8) is amended by deleting "Minister or the".
page 48
Planning Appeals Amendment Bill 2001
Consequential amendments Part 4
s. 29
(14) Section 27(9) is amended as follows:
(a) by deleting "Minister or the" in the 3 places where it
occurs;
(b) by deleting ", as the case requires,".
5 (15) Section 27(10)(a) is amended by deleting "Minister or the".
29. Subiaco Redevelopment Act 1994
(1) Section 54(2) of the Subiaco Redevelopment Act 1994* is
amended by deleting ", within the period specified in the notice,
appeal to the Minister against the direction, and on the appeal
10 the Minister may confirm, vary or cancel the direction." and
inserting instead --
"
appeal under Part V of the Town Planning Act against
the direction.
15 ".
[* Reprinted as at 25 February 2000.]
(2) Section 54(4) of the Subiaco Redevelopment Act 1999 is
amended by deleting "Minister confirms or varies the direction
under subsection (2), the Minister" and inserting instead --
20 "
Town Planning Appeal Tribunal confirms or varies the
direction, the Town Planning Appeal Tribunal
".
30. Western Australian Planning Commission Act 1985
25 (1) The amendments in this section are to the Western Australian
Planning Commission Act 1985*.
[* Reprinted as at 16 March 2001.]
(2) Section 37E(2) is amended by deleting "section 53(2)" and
inserting instead --
30 " section 56(2) ".
page 49
Planning Appeals Amendment Bill 2001
Part 4 Consequential amendments
s. 30
(3) Section 37J(4) and (5) are repealed and the following
subsections are inserted instead --
"
(4) An owner on whom a notice is served under this
5 section may appeal under Part V of the Town Planning
Act against any direction contained in the notice.
(5) If the Town Planning Appeal Tribunal confirms or
varies the direction, the Town Planning Appeal
Tribunal may, by notice in writing served on the
10 owner, direct the owner to comply with the direction as
so confirmed or varied, within a period of not less than
40 days after the service of the notice, as is specified in
the notice.
".
15 (4) Section 37J(7)(b) is amended by deleting "Minister" and
inserting instead --
" Town Planning Appeal Tribunal ".
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