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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Planning and Development Bill 2004 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Purposes of this Act 2 4. Terms used in this Act 3 5. Crown bound 9 6. Act does not interfere with public works 10 Part 2 -- The Western Australian Planning Commission Division 1 -- Establishment and management 7. Commission established 11 8. Status 11 9. Management 11 10. Membership of board 11 11. Associate members 14 12. Constitution and proceedings 14 13. Remuneration and allowances 14 Division 2 -- Functions and powers 14. Functions of the Commission 15 15. Powers 16 16. Delegation by Commission 18 17. Directions by Minister 19 18. Minister to have access to information 20 19. Committees 21 20. Fees 21 313--2B page i Planning and Development Bill 2004 Contents Division 3 -- Administration 21. Secretary 22 22. Staff of Commission 22 23. Use of staff and facilities of public authorities 22 Division 4 -- Miscellaneous 24. Execution of documents 23 Part 3 -- State planning policies Division 1 -- Making of State planning policies 25. Continuation of statements of planning policy 24 26. Preparation of State planning policy 24 27. Matters to which Commission is to have regard 25 28. Consultation 25 29. Approval of Governor 26 30. Publication of State planning policy 27 31. Amendment or repeal of State planning policy 27 32. Environmental review 27 Part 4 -- Region planning schemes Division 1 -- Continuation and formulation of region planning schemes 33. Planning schemes continued 28 34. Region planning schemes 28 35. Preparation of region planning scheme or amendment 29 36. Restrictions on making or amendment of region planning scheme for metropolitan region 29 37. Region planning scheme may be amended or repealed 30 Division 2 -- Prerequisites to region planning scheme or amendment 38. All proposed region planning schemes and amendments to be referred to EPA 30 39. Environmental review and consent to public submissions 31 40. Referrals to Swan Valley Planning Committee before public submissions 32 page ii Planning and Development Bill 2004 Contents Division 3 -- Making of region planning scheme and amendments 41. Procedure 33 42. Consent to public submissions 33 43. Deposit and notification of scheme or amendment 33 44. Submissions to Commission 35 45. Role of Commission in relation to environmental submissions on scheme or amendment 36 46. Person making submission may be heard 36 47. Referrals to Swan Valley Planning Committee after public submissions 37 48. Submissions to Minister 37 49. Minister may withdraw scheme or amendment 38 50. Prerequisite for final approval of Minister 38 51. Directions by Minister 39 52. Procedure on modifications 39 53. Approval of Governor 39 54. Publication of scheme or amendment 40 55. Approval of scheme or amendment may be revoked 40 56. Scheme or amendment may be disallowed 41 Division 4 -- Minor amendments to region planning scheme 57. Minor amendment 42 58. Notification of minor amendment 42 59. Consideration of submissions on minor amendment 43 60. Role of Commission in relation to environmental submissions on minor amendment 43 61. Prerequisite for final approval by Minister of proposed minor amendment 44 62. Minister may approve or decline to approve minor amendment 45 Division 5 -- Consolidation of region planning scheme 63. Minister may direct consolidation 46 64. Maps, plans, diagrams may be added or substituted 46 65. Certification and delivery of consolidation 47 66. Proof of consolidation 47 67. Consolidation of portion of region planning scheme 47 page iii Planning and Development Bill 2004 Contents Part 5 -- Local planning schemes Division 1 -- Continuation and formulation of local planning schemes 68. Town planning schemes continued as local planning schemes 48 69. General objects of local planning scheme 48 70. Scheme may be made for land outside scheme or be concurrent with another scheme 48 71. Prohibition on making local planning scheme in redevelopment area 49 72. Local government may prepare or adopt scheme 49 73. Provisions of local planning scheme 50 74. Local planning scheme may be repealed 51 75. Local planning scheme may be amended 51 Division 2 -- Minister's powers in relation to local planning schemes 76. Minister may order local government to prepare or adopt local planning scheme 51 Division 3 -- Relevant considerations in preparation or amendment of local planning scheme 77. Effect of State planning policy 52 78. Schemes and amendments applicable to the Swan Valley 53 79. Advice from Heritage Council 54 80. Swan River management programme 54 81. Referral of scheme or amendment to EPA 54 82. Environmental review 55 83. Consultation of persons likely to be affected 56 Division 4 -- Advertisement and approval 84. Advertisement of scheme or amendment 57 85. Role of local governments in relation to environmental submissions 57 86. Prerequisite to final approval by Minister 58 87. Approval and publication of scheme or amendment 58 Division 5 -- Review of local planning schemes 88. Local government to prepare consolidation 59 89. Submissions on consolidated scheme 61 page iv Planning and Development Bill 2004 Contents 90. Report on scheme 61 91. Procedure where no change to scheme 61 92. Procedure where amendments proposed 62 93. Effect of publication of consolidation 63 94. Procedure where new scheme prepared following report 64 95. Procedure where scheme repealed following report 64 96. Consolidation of 2 or more local planning schemes 65 Division 6 -- Crown land 97. Planning of town and suburban lands 65 Part 6 -- Interim development orders Division 1 -- Regional interim development orders 98. Regional interim development orders 67 99. Contents of regional interim development order 68 100. Consultation with local government on development approval 69 101. Restrictions on power to grant development approval 69 Division 2 -- Local interim development orders 102. Local interim development orders 69 103. Contents of local interim development orders 70 Division 3 -- Provisions applying to regional and local interim development orders 104. Consultation with public authorities and utility services providers 71 105. Publication of summary of interim development order 72 106. Administration of interim development order 72 107. Effect and duration of interim development order 73 108. Effect on continued use and permitted development 73 109. Amendment of interim development order 74 110. Revocation of interim development order 74 111. Non-conforming development by local government or public authority 75 Part 7 -- Planning control areas 112. Declaration of planning control areas 77 113. Declaration may be amended or revoked 78 114. Duration of declaration 78 page v Planning and Development Bill 2004 Contents 115. Applications for approval of development in planning control areas 78 116. Commission may approve or refuse application 78 117. Commission may revoke approval 79 118. Effect of Part 80 Part 8 -- Improvement plans 119. Commission may recommend improvement plan 81 120. Improvement plan may be amended or revoked 82 121. Commission may develop land included in improvement plan 82 122. Nothing in this Part derogates from other powers 83 Part 9 -- Relationship between region planning schemes, local planning schemes, planning control provisions and written laws 123. Local planning schemes and local laws to be consistent with region planning scheme 84 124. Effect of region planning scheme on local planning scheme 84 125. Minister may direct local government to amend local planning scheme for consistency 85 126. Zoning amended by region planning scheme 86 127. Minister may direct local government to modify proposed scheme or amendment 87 128. Minister may direct local government to adopt scheme or amendment 87 129. Effect of interim development order on local planning scheme and local laws 89 130. Planning control area provisions prevail 89 131. Compliance with local government regulations 90 132. Governor may suspend operation of certain written laws 90 page vi Planning and Development Bill 2004 Contents Part 10 -- Subdivision and development control Division 1 -- Application 133. Application to Crown land 91 134. Application, and effect, of other written laws 91 Division 2 -- Approval for subdivision and certain transactions 135. Approval required for subdivision 92 136. Approval required for certain transactions where land not dealt with as a lot or lots 93 137. Applications in respect of heritage land 94 138. Approval of Commission 95 139. Approved classes of lease or licence 96 140. Saving of certain agreements 98 141. Refund where transaction cannot be completed 99 142. Objections and recommendations 99 143. How Commission is to deal with plan of subdivision 100 144. Reconsideration of refusal to approve plan of subdivision 101 145. Endorsement of approval upon diagram or plan of survey of subdivision 101 146. No certificate of title for subdivided land without endorsement of Commission approval 102 147. Approval required for certain transfers and other dealings 103 Division 3 -- Conditions of subdivision 148. Conditions as to development 104 149. Conditions on rural land (tied lots) 105 150. Conditions on road access 107 151. Reconsideration of conditions 108 152. Certain land to vest in the Crown 108 153. When owner may pay money in lieu of land being set aside for open space 110 154. How money received in lieu of open space is to be dealt with 110 155. How value of portion is determined 112 156. Dispute as to valuation 113 157. When approval of subdivision is deemed to be approval under planning scheme 113 page vii Planning and Development Bill 2004 Contents Division 4 -- Subdivision costs 158. Expenses of road or waterway construction and road drainage 114 159. Subdivider may recover portion of road costs from subsequent subdivider 115 160. How subdivision costs recovered 117 161. When land is subdivided 117 Division 5 -- Development controls 162. Development requires approval 117 163. Heritage places 118 164. Development may be approved after commencement 118 Division 6 -- Miscellaneous 165. Record of conditions on title 119 166. Encroachments 119 167. Easements 120 168. Roads 122 169. Commission may fix minimum standards of construction 124 170. Local government to be provided with specifications for roads and waterways 124 Part 11 -- Compensation and acquisition Division 1 -- General matters in relation to compensation 171. Only one entitlement to compensation 126 Division 2 -- Compensation where land injuriously affected by planning scheme 172. Meaning of terms used in this Division 126 173. Entitlement to compensation where land injuriously affected by planning scheme 127 174. When land is injuriously affected 127 175. No entitlement to compensation where provisions are, or could have been, in certain other laws 129 176. How questions determined 129 177. When compensation is payable if land reserved for public purpose 130 178. When claim for compensation may be made 131 page viii Planning and Development Bill 2004 Contents 179. Amount of compensation for injurious affection arising out of reservation for public purposes 132 180. Notification may be lodged if compensation paid 133 181. Responsible authority may recover compensation if reservation revoked or reduced 133 182. Board of Valuers 137 183. Valuations by the Board 138 Division 3 -- Other compensation 184. Betterment, and compensation where scheme amended or repealed 139 185. Compensation in relation to interim development order 140 186. Compensation in relation to planning control areas 141 Division 4 -- Purchase or compulsory acquisition 187. Election to acquire instead of compensation 141 188. How value of land is to be determined 142 189. Commission may purchase land before scheme has force of law 143 190. Responsible authority may purchase land 144 191. Responsible authority may take land comprised in scheme 144 192. Valuation of land or improvements acquired by responsible authority 144 193. Responsible authority has powers of owner of land 145 194. Responsible authority may grant easements 146 195. Commission may acquire land included in improvement plan 146 196. Commission may dispose of land acquired by it 147 197. Governor may declare land to be held and used for region planning scheme 147 Part 12 -- Financial provisions Division 1 -- Metropolitan Region Improvement Fund 198. Metropolitan Region Improvement Fund 149 199. Use of Fund 149 page ix Planning and Development Bill 2004 Contents Division 2 -- Metropolitan Region Improvement Tax 200. Owners' liability to pay Metropolitan Region Improvement Tax 150 201. How tax collections are dealt with 151 Division 3 -- Financial provisions relating to the Commission 202. Saving 152 203. Funds of the Commission 152 204. Approval of the Minister to certain expenditure 152 205. Borrowing restrictions 152 206. Borrowing from Treasurer 153 207. Guarantees of borrowing etc. 153 208. Application of Financial Administration and Audit Act 1985 154 209. Land of Commission not subject to rates etc. 154 Division 4 -- Financial provisions relating to local governments 210. Apportionment of expenses between local governments 154 Part 13 -- Enforcement and legal proceedings Division 1 -- Enforcement 211. Minister may give orders to local government 156 212. Minister may assume powers of local government or enforce review decision 157 213. Effect of amendment, scheme, consolidation or repeal prepared by Minister 159 214. Directions by responsible authority regarding unauthorised development 159 215. Responsible authority may remove or alter unauthorised development 161 216. Injunction 162 217. Powers of Minister to ensure that environmental conditions are met 163 page x Planning and Development Bill 2004 Contents Division 2 -- Offences 218. Contravention of planning scheme 165 219. Unauthorised subdivision works 165 220. Development in planning control area without prior approval 166 221. Contravention of interim development order 166 222. Development in heritage place without approval 166 223. Penalty for offence 167 224. Other enforcement provisions not affected 167 225. Onus of proof in vehicle offence may be shifted 167 Division 3 -- Infringement notices 226. Interpretation 168 227. Prescribed offences 169 228. Giving of infringement notice 169 229. Content of infringement notice 169 230. Extension of time 170 231. Withdrawal of infringement notice 170 232. Benefit of paying modified penalty 170 233. Application of penalties collected 171 234. Appointment of designated persons 171 235. Notice placing onus on vehicle owner 171 Part 14 -- Appeals Division 1 -- Establishment of Tribunal 236. Establishment of Town Planning Appeal Tribunal 173 237. Members of Tribunal 173 238. Qualifications of members 173 239. Further provisions concerning Tribunal members 174 Division 2 -- How Tribunal is constituted 240. President determines how Tribunal is constituted 174 241. President responsible for administration 176 242. Delegation by President 176 Division 3 -- The Principal Registrar and other officers 243. Principal Registrar 176 244. President may give Principal Registrar directions 177 245. Other officers of the Tribunal 177 246. Functions of the Registrar 177 page xi Planning and Development Bill 2004 Contents Division 4 -- Proceedings of the Tribunal 247. Appeals to the Tribunal 178 248. Commencement of appeal 178 249. Notice of hearings 178 250. Determination of appeals 179 251. Procedure of the Tribunal 179 252. Failure to comply with summons or requirement of Tribunal 181 253. False or misleading evidence 182 254. Offences against Tribunal 182 255. Protection of Tribunal members, practitioners, witnesses and others 182 256. Evidentiary provision 183 257. Who presides 183 258. Representation 183 259. Powers with respect to witnesses and evidence 184 260. Tribunal to invite submissions from Minister for the Environment before determining certain appeals 184 261. Tribunal to have regard to certain matters 185 262. Submissions from persons who are not parties 185 263. Questions of law 186 264. Written reasons for determination and publication of reasons 186 265. Costs 186 266. Review by President 187 267. Appeal to Supreme Court on question of law 187 268. Determination of Tribunal final 188 Division 5 -- Intervention by Minister 269. Minister may make submissions 188 270. Minister may call in appeal 189 271. Determination of appeal by Minister 190 Division 6 -- Miscellaneous 272. Laying before House of Parliament that is not sitting 191 273. Judicial notice of seal and signatures 192 274. Immunity of Tribunal and officers 192 275. Rules 192 page xii Planning and Development Bill 2004 Contents Division 7 -- Decisions which may be appealed 276. Appeal against decision under interim development order 193 277. Appeal against decision in respect of development in planning control area 193 278. Appeal against certain decisions under Part 10 194 279. Appeal against exercise of discretionary power under a planning scheme 194 280. Notice of default for purposes of this Division 195 Division 8 -- Other appeals 281. Appeal against decision under section 48I of EP Act 196 282. Appeal against section 214 direction 197 Part 15 -- Subsidiary legislation Division 1 -- Subsidiary legislation made by Minister 283. General provisions of planning schemes 198 284. Court may order compensation in respect of certain breaches of general regulations 198 285. Procedure and costs for local planning schemes 199 286. Environmental review expenses 200 287. Penalties 200 Division 2 -- Subsidiary legislation made by Governor 288. Local government fees 201 289. Uniform general local laws 202 290. Governor may make regulations 203 Division 3 -- General 291. Regulations may adopt codes and other texts 204 Part 16 -- Miscellaneous 292. Delegation by Minister 206 293. Duties and liabilities of persons performing functions under this Act 206 294. Protection from liability for wrongdoing 208 295. Review of Act 209 page xiii Planning and Development Bill 2004 Contents Schedule 1 -- Constitution and proceedings of the board 210 1. Terms used in this Schedule 210 2. Term of office 210 3. Extent of duties 210 4. Resignation and removal 210 5. Leave of absence 211 6. Deputy chairperson 211 7. Deputy members 212 8. Meetings 212 9. Resolution without meeting 213 10. Telephone or similar meetings 213 11. Minutes of meetings 213 12. Procedures 213 Schedule 2 -- Committees 214 1. Committees -- general 214 2. Deputy members -- local government representatives 215 3. Executive, Finance and Property Committee 215 4. Statutory Planning Committee 216 5. Sustainable Transport Committee 217 6. Infrastructure Coordinating Committee 218 7. Coastal Planning and Coordination Council 219 8. Regional planning committees 221 9. District planning committees 222 Schedule 3 -- Metropolitan region 224 Schedule 4 -- Other regions 226 1. Gascoyne Region 226 2. Goldfields-Esperance Region 226 3. Great Southern Region 226 4. Kimberley Region 226 5. Mid West Region 226 6. Peel Region 226 7. Pilbara Region 226 8. South West Region 227 9. Wheatbelt Region 227 page xiv Planning and Development Bill 2004 Contents Schedule 5 -- Local governments -- metropolitan region 228 1. SOUTH-WEST GROUP 228 2. WESTERN SUBURBS GROUP 228 3. NORTH-WEST GROUP 228 4. SOUTH-EAST GROUP 229 5. EASTERN GROUP 229 Schedule 6 -- Planning control areas: purposes for which land may be required 230 Schedule 7 -- Matters which may be dealt with by planning scheme 231 1. Generality preserved 231 2. Subdivision 231 3. Reconstruction 231 4. Preservation and conservation 231 5. Roads, public works, undertakings, purposes and facilities 232 6. Zoning 232 7. Special controls 232 8. Development standards 232 9. Development controls 233 10. Acquisition and purchase 233 11. Powers 233 12. Agreements and cooperation 233 13. Carrying out the scheme 233 14. Appeal 234 15. General and ancillary matters 234 Schedule 8 -- Matters for which local laws may be made by Governor 235 1. Purchase and reservation of land 235 2. Limitation of building 235 3. Classification and zoning 235 4. Prohibition of use 235 5. Prescribing characteristics of building 236 6. Prohibition of trade etc. or erection or use of building 236 page xv Planning and Development Bill 2004 Contents 7. Requirements of new subdivisions 236 8. Building lines 236 9. Open space etc. 237 10. Heights 237 11. Authority 237 Schedule 9 -- Board of Valuers 238 1. Interpretation 238 2. Term of office 238 3. Constitution of the Board 238 4. Resignation or removal from office 238 5. Fees and expenses 238 Schedule 10 -- The Tribunal 240 1. Term of office 240 2. Removal and resignation 240 3. Leave of absence 240 4. Deputy President 241 5. Acting Tribunal members 241 6. Remuneration, allowances and conditions of service 242 Schedule 11 -- The Principal Registrar 243 1. Term of office 243 2. Removal and resignation 243 3. Salary, entitlements and conditions of service 243 4. Acting Principal Registrar 244 Defined Terms page xvi Western Australia LEGISLATIVE ASSEMBLY (As amended by the Legislation Committee) Planning and Development Bill 2004 A Bill for An Act to provide for a system of land use planning and development in the State and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Planning and Development Bill 2004 Part 1 Preliminary s. 1 Part 1 -- Preliminary 1. Short title This Act may be cited as the Planning and Development Act 2004. 5 2. Commencement (1) This Act comes into operation on a day fixed by proclamation. (2) Different days may be fixed under subsection (1) for different provisions. 3. Purposes of this Act 10 (1) The purposes of this Act are to -- (a) consolidate the provisions of the Acts repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2004 (the Metropolitan Region Town Planning Scheme Act 1959, the Town 15 Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985) in a rewritten form; (b) provide for an efficient and effective land use planning system in the State; and 20 (c) promote the sustainable use and development of land in the State. (2) If -- (a) the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development 25 Act 1928 or the Western Australian Planning Commission Act 1985 expressed an idea in a particular form of words; and (b) this Act appears to have expressed the same idea in a different form of words in order to use a clearer or 30 simpler style, page 2 Planning and Development Bill 2004 Preliminary Part 1 s. 4 the ideas are not to be taken to be different just because different forms of words were used. 4. Terms used in this Act (1) In this Act, unless the contrary intention appears -- 5 "Account" means the account referred to in section 203(2); "appeal" means an appeal made to the Tribunal under Part 14; "artificial waterway" means an artificial channel, lake, harbour or embayment, for navigational, ornamental and recreational purposes, or for any of those purposes, and 10 includes any addition to, or alteration of, an artificial waterway as so defined; "associate member" means an associate member of the board appointed under section 11; "board" means the board referred to in section 9; 15 "chairperson" means the chairperson of the board; "chief executive officer" means the chief executive officer of the department principally assisting in the administration of this Act; "Commission" means the Western Australian Planning 20 Commission established by section 7; "Crown land" has the same meaning as it has in the Land Administration Act 1997; "deputy member" means a person appointed under Schedule 1 clause 7; 25 "deputy President" means deputy President of the Tribunal; "development" means the development or use of any land, including -- (a) any demolition, erection, construction, alteration of or addition to any building or structure on the land; 30 (b) the carrying out on the land of any excavation or other works; page 3 Planning and Development Bill 2004 Part 1 Preliminary s. 4 (c) in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that -- (i) is likely to change the character of that place 5 or the external appearance of any building; or (ii) would constitute an irreversible alteration of the fabric of any building; "development application" means an application under a planning scheme, or under an interim development order, 10 for approval of development; "district" means an area that has been declared to be a district under the Local Government Act 1995; "district planning committee" means a committee established under Schedule 2 clause 9; 15 "environmental condition" means a condition agreed under section 48F, or decided under section 48J, of the EP Act; "EPA" means the Environmental Protection Authority continued in existence under the EP Act; "EP Act" means the Environmental Protection Act 1986; 20 "Fund" means the Metropolitan Region Improvement Fund established under section 198; "Heritage Council" means the Heritage Council of Western Australia established under the Heritage of Western Australia Act 1990; 25 "improvement plan" means an improvement plan referred to in section 119; "interim development order" means a regional interim development order or a local interim development order; "LAA Department" means the department principally assisting 30 in the administration of the Land Administration Act 1997; page 4 Planning and Development Bill 2004 Preliminary Part 1 s. 4 "land" includes -- (a) land, tenements and hereditaments; (b) any interest in land, tenements and hereditaments; and 5 (c) houses, buildings, and other works and structures; "legal practitioner" has the same meaning as in the Legal Practice Act 2003; "local interim development order" means an interim development order made under section 102; 10 "local order area" means an area affected by, and specified in, a local interim development order; "local planning scheme" means a planning scheme of effect or continued under Part 5; "lot" means a defined portion of land -- 15 (a) depicted on a plan or diagram -- (i) available from the TLA Department; or (ii) deposited in the TLA Department or the Registry of Deeds, and for which a separate Crown Grant or certificate 20 of title has been or can be issued; (b) depicted on a diagram or plan of survey of a subdivision approved by the Commission; or (c) which is the whole of the land the subject of -- (i) a Crown Grant issued under the Land 25 Act 1933; (ii) a certificate of title registered under the Transfer of Land Act 1893; (iii) a survey into a location or lot under section 27(2) of the Land Administration 30 Act 1997 or a certificate of Crown land title the subject of such a survey; page 5 Planning and Development Bill 2004 Part 1 Preliminary s. 4 (iv) a part-lot shown on a diagram or plan of survey of a subdivision deposited in the TLA Department or the Registry of Deeds; or (v) a conveyance registered under the 5 Registration of Deeds Act 1856, but does not include a lot in relation to a strata scheme, a lot in relation to a survey-strata scheme, or a lot shown as common property on a survey-strata plan, as those terms are defined in the Strata Titles Act 1985; 10 "member" means a member of the board; "metropolitan region" means the region described in Schedule 3; "Metropolitan Region Scheme" means the planning scheme continued under section 33(1), or any region planning 15 scheme made in substitution for that scheme; "Minister for the Environment" means the Minister to whom the Governor has for the time being committed the administration of the EP Act; "officer of the Commission" means either of the following -- 20 (a) the Secretary to the Commission appointed under section 21(1); (b) a public service officer referred to in section 22; "party", in relation to an appeal, means any of the following -- (a) the appellant; 25 (b) the person who made the decision or direction appealed against; (c) any person joined as a party to the appeal by the Tribunal; "planning control area" means a planning control area 30 declared and in force under section 112; page 6 Planning and Development Bill 2004 Preliminary Part 1 s. 4 "planning scheme" means a local or region planning scheme that has effect under this Act and includes -- (a) the provisions of the scheme; and (b) all maps, plans, specifications and other particulars 5 contained in the scheme and colourings, markings or legends on the scheme; "President" means President of the Tribunal; "Principal Registrar" means the Principal Registrar of the Tribunal; 10 "public authority" means any of the following -- (a) a Minister of the Crown in right of the State; (b) a department of the Public Service, State trading concern, State instrumentality or State public utility; (c) any other person or body, whether corporate or not, 15 who or which, under the authority of a written law, administers or carries on for the benefit of the State, a social service or public utility; "public work" includes any public work within the meaning of the Public Works Act 1902; 20 "region" means the metropolitan region or a region referred to in Schedule 4; "region planning scheme" means either of the following -- (a) the Metropolitan Region Scheme; (b) a planning scheme continued under section 33(2) or 25 of effect under Part 4; "regional interim development order" means an interim development order made under section 98; "Regional Minister" means the Minister to whom the Governor has for the time being committed the 30 administration of the Regional Development Commissions Act 1993; "regional order area" means an area affected by, and specified in, a regional interim development order; page 7 Planning and Development Bill 2004 Part 1 Preliminary s. 4 "responsible authority" means -- (a) in relation to a local planning scheme or local interim development order, the local government responsible for the enforcement of the observance of the scheme 5 or order, or the execution of any works which under the scheme or order, or this Act, are to be executed by a local government; and (b) in relation to a region planning scheme, regional interim development order or planning control area, 10 the Commission or a local government exercising the powers of the Commission; "road" means a public thoroughfare for vehicles (within the meaning of the Road Traffic Act 1974) or pedestrians, and includes structures or other things appurtenant to the road 15 that are within its limits, and a thoroughfare is not prevented from being a road only because it is not open at each end; "rules" means rules of the Tribunal made under section 275; "State planning policy" means a planning policy approved 20 under section 29; "subdivision" includes amalgamation; "Swan Valley" has the same meaning as it has in the Swan Valley Planning Act 1995; "Swan Valley Planning Committee" has the same meaning as 25 it has in the Swan Valley Planning Act 1995; "TLA Department" means the department principally assisting in the administration of the Transfer of Land Act 1893; "Tribunal" means the Town Planning Appeal Tribunal established by section 236; 30 "Tribunal member" means a member of the Tribunal and includes the President, deputy President and a person appointed under Schedule 10 clause 5; page 8 Planning and Development Bill 2004 Preliminary Part 1 s. 5 "utility services" means drainage, electricity, sewerage or water supply services or such other services as are prescribed; "WALGA" means the body constituted under section 9.58 of 5 the Local Government Act 1995 and known as the Western Australian Local Government Association. (2) In this Act, unless the contrary intention appears, a reference to -- (a) "the preparation of a local planning scheme" or "the 10 amendment of a local planning scheme" includes a reference to the adoption of a local planning scheme or amendment; (b) "a local planning scheme prepared by a local government" or "an amendment prepared by a local 15 government" includes a reference to a planning scheme or amendment adopted by it, and other parts of speech and grammatical forms of those phrases have corresponding meanings. (3) A provision of this Act relating to a region scheme is to be 20 construed in conjunction with the provisions of this Act relating to local planning schemes as if those provisions related to region schemes but, if the provision relating to a region scheme is in conflict with, or inconsistent with a provision relating to a local planning scheme, for the purpose of construing the 25 provision relating to a region scheme the provision relating to the region scheme prevails to the extent that it is in conflict or inconsistent. 5. Crown bound (1) Except as provided in section 6 this Act binds the Crown. 30 (2) A region planning scheme binds the Crown. page 9 Planning and Development Bill 2004 Part 1 Preliminary s. 6 6. Act does not interfere with public works (1) Subject to section 5(2) and subsections (2) and (3) of this section, nothing in this Act interferes with the right of the Crown, or the Governor, or the Government of the State, or a 5 local government -- (a) to undertake, construct or provide any public work; and (b) to take land for the purposes of that public work. (2) Rights referred to in subsection (1) are to be exercised having regard to -- 10 (a) the purpose and intent of any planning scheme that has effect in the locality where, and at the time when, the right is exercised; and (b) the orderly and proper planning, and the preservation of the amenity, of that locality at that time. 15 (3) The responsible authority is to be consulted at the time when a proposal for any public work, or for the taking of land for a public work, is being formulated to ensure that the undertaking, construction, or provision of, or the taking of land for, the public work will comply with subsection (2). page 10 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Establishment and management Division 1 s. 7 Part 2 -- The Western Australian Planning Commission Division 1 -- Establishment and management 7. Commission established 5 (1) A body called the Western Australian Planning Commission is established. (2) The Commission is a body corporate with perpetual succession. (3) Proceedings may be taken by or against the Commission in its corporate name. 10 8. Status The Commission is an agent of the State and has the status, immunities and privileges of the State. 9. Management (1) The Commission is to have a board of management. 15 (2) The board is the governing body of the Commission. (3) The board, in the name of the Commission, is to perform the functions of the Commission under this Act or any other written law. 10. Membership of board 20 (1) The board is to consist of the following members -- (a) a chairperson appointed by the Governor on the nomination of the Minister; (b) 6 members appointed by the Governor, of whom -- (i) one is to be a person nominated by the Minister 25 from a list of the names of 4 persons representing the interests of local governments within the metropolitan region submitted to the Minister by WALGA; page 11 Planning and Development Bill 2004 Part 2 The Western Australian Planning Commission Division 1 Establishment and management s. 10 (ii) one is to be a person nominated by the Minister from a list of the names of 4 persons representing the interests of the local governments outside the metropolitan region submitted to the Minister by 5 WALGA; (iii) one is to be a person nominated by the Minister as having experience of the field of coastal planning and management; (iv) one is to be a person nominated by the Minister 10 as having practical knowledge of and experience in one or more of the fields of urban and regional planning, property development, commerce and industry, business management, financial management, engineering, surveying, valuation, 15 transport or urban design; (v) one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of environmental conservation, natural resource management or 20 heritage interests; and (vi) one is to be a person nominated by the Minister as having practical knowledge of and experience in one or more of the fields of planning and provision of community services, community 25 affairs or indigenous interests; and (c) the least number of other members who include -- (i) the chief executive officer of the department principally assisting in the administration of this 30 Act; (ii) the chief executive officer of the Department referred to in the Water Resources Management (Administration) Act 2003; page 12 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Establishment and management Division 1 s. 10 (iii) the chief executive officer of the department principally assisting in the administration of the Transport Co-ordination Act 1966; (iv) the chief executive officer of the department 5 principally assisting in the administration of the Environmental Protection Act 1986; (v) the chief executive officer of the department principally assisting in the administration of the Government Agreements Act 1979; 10 (vi) the chief executive officer of the department principally assisting in the administration of the Housing Act 1980; (vii) a person, whether a member under another subparagraph or another person nominated by the 15 Minister, who has experience in the field of urban and regional planning and is employed in an agency, as defined in the Public Sector Management Act 1994, for which the Minister is responsible; and 20 (viii) a person nominated by the Regional Minister. (2) When the submission of a list of names is required for the purposes of subsection (1)(b)(i) or (ii), that submission is to be made to the Minister in writing signed on behalf of WALGA within such reasonable time after the receipt by WALGA of a 25 notice from the Minister stating that the submission is required as is specified in the notice. (3) If a submission is not made under subsection (2) within the time specified under that subsection, the Minister may nominate a person the Minister thinks fit to be a member in place of the 30 person referred to in subsection (1)(b)(i) or (ii). page 13 Planning and Development Bill 2004 Part 2 The Western Australian Planning Commission Division 1 Establishment and management s. 11 11. Associate members (1) In this section -- "regional matter" means a matter that, in the opinion of the chairperson, affects more than one local government in a 5 region referred to in Schedule 4. (2) The Governor may, on the nomination of the Minister, appoint an associate member for a region referred to in Schedule 4. (3) Each nomination by the Minister for appointment as an associate member under subsection (2) is to be made on the 10 recommendation of the Regional Minister. (4) Where it appears to the chairperson that a regional matter is to be considered at a meeting of the board the chairperson may, by written notice specifying the time and place of the meeting, request the associate member for that region to attend that 15 meeting for the consideration of that matter. 12. Constitution and proceedings Schedule 1 has effect. 13. Remuneration and allowances A member, a deputy member, an associate member or a member 20 of a committee established under Schedule 2 is to be paid such remuneration and allowances as are determined by the Minister on the recommendation of the Minister for Public Sector Management. page 14 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Functions and powers Division 2 s. 14 Division 2 -- Functions and powers 14. Functions of the Commission The functions of the Commission are -- (a) to advise the Minister on -- 5 (i) the coordination and promotion of land use, transport planning and land development in the State in a sustainable manner; (ii) the administration, revision and reform of legislation relating to land use, transport 10 planning and land development; (iii) local planning schemes, and amendments to those schemes, made or proposed to be made for any part of the State; (b) to prepare and keep under review -- 15 (i) a planning strategy for the State; and (ii) planning policies, as a basis for coordinating and promoting land use planning, transport planning and land development in a sustainable manner, and for the guidance of public 20 authorities and local governments on those matters; (c) to plan for the coordinated provision of transport and infrastructure for land development; (d) to provide advice and assistance to any body or person on land use planning and land development and in 25 particular to local governments in relation to local planning schemes and their planning and development functions; (e) to undertake research and develop planning methods and models relating to land use planning, land development 30 and associated matters; page 15 Planning and Development Bill 2004 Part 2 The Western Australian Planning Commission Division 2 Functions and powers s. 15 (f) to keep under review the strategic planning for the metropolitan region and any other part of the State to which a region planning scheme applies and to make recommendations to the Minister on that strategic 5 planning; (g) to prepare and amend State planning policies under Part 3; (h) to prepare region planning schemes under Part 4; (i) to keep under review each region planning scheme, to 10 review the scheme completely whenever requested by the Minister to do so and to submit for approval under Part 4 any amendment of a region planning scheme considered necessary as a result of a review; (j) to develop, maintain and manage land held by it that is 15 reserved under a region planning scheme and to carry out such works, including the provision of facilities on the land, as may be incidental to development, maintenance or management or to be conducive to the use of the land for any purpose for which it is reserved; 20 (k) to establish, and exercise powers in relation to, committees under Schedule 2; (l) to do all things that are necessary for the purpose of carrying out this Act and region planning schemes; and (m) to do anything else that it is required or authorised to do 25 by this or any other written law. 15. Powers (1) The Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions. 30 (2) Without limiting subsection (1), the Commission may, for the purpose of performing a function -- (a) subject to this Act, acquire, hold and dispose of real and personal property; page 16 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Functions and powers Division 2 s. 15 (b) enter into an agreement with any person under which that person may acquire a lease of, a licence in respect of, or any other estate or interest in, any land mentioned in section 14(j); 5 (c) develop and turn to account any technology, software or other intellectual property that relates to the function, and, for that purpose, apply for, hold, exploit and dispose of any patent, patent rights, copyright or similar rights; 10 (d) enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or other agency or instrumentality, in the State or elsewhere) -- (i) for the supply of equipment by that person or 15 body; (ii) to provide consultancy or advisory services to that person or body; or (iii) for the commercial exploitation of the knowledge, expertise and resources of the 20 Commission and the rights referred to in paragraph (c); (e) subject to subsection (3), enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or 25 other agency or instrumentality, in the State or elsewhere) for the performance by that person or body of any work or the supply of services; (f) on terms and conditions approved by the Minister and the Treasurer, participate in any business arrangement 30 and acquire, hold and dispose of shares, units or other interests in, or relating to, a business arrangement; and (g) act in conjunction with a person, a firm, a local government or a department of the Public Service, or other agency or instrumentality, of the State, another 35 State or Territory or the Commonwealth. page 17 Planning and Development Bill 2004 Part 2 The Western Australian Planning Commission Division 2 Functions and powers s. 16 (3) The Commission is not to enter into a contract or arrangement referred to in subsection (2)(e) unless -- (a) the Minister has approved; and (b) the contract or arrangement is entered into in such 5 circumstances and for such periods as the Minister may from time to time specify by written notice given to the Commission. (4) For the purposes of subsection (2)(f) the Minister and the Treasurer may approve terms and conditions in respect of a 10 specific business arrangement or class of business arrangement or in respect of business arrangements generally. (5) In this section -- "business arrangement" means a company, a partnership, a trust, a joint venture, an arrangement for sharing profits or 15 an arrangement for sponsorship; "participate" includes form, promote, establish, enter into, manage, dissolve, wind up, and do anything incidental to the participating in a business arrangement. 16. Delegation by Commission 20 (1) The Commission may, by resolution, delegate to a person or body referred to in subsection (3) any function of the Commission under this Act or any other written law, except this power of delegation. (2) A resolution referred to in subsection (1) takes effect when 25 notice of the resolution is published in the Gazette. (3) A delegation under subsection (1) may be made to -- (a) a member or associate member; (b) a committee established under Schedule 2, or a member of such a committee; 30 (c) an officer of the Commission; page 18 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Functions and powers Division 2 s. 17 (d) a public authority or a member or officer of a public authority; or (e) a local government, a committee established under the Local Government Act 1995 or an employee of a local 5 government. (4) The reference to functions in subsection (1) extends, without limitation or restriction, to all of the powers, privileges, authorities, discretions, duties and responsibilities vested in or imposed on the Commission by this Act or any other written 10 law. (5) Without limiting the generality of subsection (1), where the Commission has delegated its functions under section 14(i) and 14(l), the delegation includes, subject to the instrument of delegation, a delegation of every function of the Commission 15 under Part 4. (6) A delegate cannot subdelegate the exercise or performance of any function. (7) A delegate exercising or performing a function as authorised under this section is to be taken to do so in accordance with the 20 terms of the delegation unless the contrary is shown. (8) Nothing in this section limits the ability of the Commission to act through an officer or agent. (9) This section does not apply to the execution of documents but authority to execute documents on behalf of the Commission 25 can be given under section 24. 17. Directions by Minister (1) The Minister may give written directions to the Commission with respect to the exercise or performance of its functions, either generally or in relation to a particular matter, and the 30 Commission is to give effect to any such direction. page 19 Planning and Development Bill 2004 Part 2 The Western Australian Planning Commission Division 2 Functions and powers s. 18 (2) The Minister is to cause the text of any direction given under subsection (1) to be laid before each House of Parliament, or dealt with under subsection (3), within 14 days after the direction is given. 5 (3) If -- (a) at the commencement of the period referred to in subsection (2) a House of Parliament is not sitting; and (b) the Minister is of the opinion that that House will not sit during that period, 10 the Minister is to transmit a copy of the direction to the Clerk of that House. (4) A copy of a direction transmitted to the Clerk of a House is to be taken to have been laid before that House. (5) The laying of a copy of a direction that is regarded as having 15 occurred under subsection (4) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy. (6) The text of any direction given under subsection (1) is to be included in the annual report submitted by the accountable 20 authority of the Commission under section 66 of the Financial Administration and Audit Act 1985. (7) Nothing in this section applies to a direction of the Minister given under section 26(1), 28(4)(b), 31(1), 31(2), 43(5)(b), 51(1), 51(2), 52(2), 63(1) or 67(1). 25 18. Minister to have access to information (1) The Minister is entitled -- (a) to have information in the possession of the Commission; and (b) if the information is in or on a document, to have, and 30 make and retain copies of, that document. page 20 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Functions and powers Division 2 s. 19 (2) For the purposes of subsection (1) the Minister may -- (a) request the Commission to give information to the Minister; (b) request the Commission to give the Minister access to 5 information; and (c) for the purposes of paragraph (b) make use of the staff of the Commission to obtain the information and give it to the Minister. (3) The Commission has to comply with a request under 10 subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection. (4) In this section -- "document" includes any tape, disc or other device or medium on which information is recorded or stored mechanically, 15 photographically, electronically or otherwise; "information" means information specified, or of a description specified, by the Minister that relates to the functions of the Commission. 19. Committees 20 Schedule 2 has effect with respect to committees established by the Commission under that Schedule. 20. Fees (1) The Minister may by notice published in the Gazette set fees to be charged in respect of anything done under this Act and 25 services provided by the Commission in connection with its functions. (2) Fees set under subsection (1) are payable by the person at whose request or on whose application the act is done. page 21 Planning and Development Bill 2004 Part 2 The Western Australian Planning Commission Division 3 Administration s. 21 Division 3 -- Administration 21. Secretary (1) The Commission may appoint a person to the office of Secretary to the Commission. 5 (2) The office of Secretary to the Commission may be held under a contract entered into with the Commission or under Part 3 of the Public Sector Management Act 1994. 22. Staff of Commission Public service officers are to be appointed or made available 10 under Part 3 of the Public Sector Management Act 1994 to enable the Commission and its committees to perform their respective functions. 23. Use of staff and facilities of public authorities (1) The Commission may, by arrangement made between it and the 15 relevant employer, make use, either full-time or part-time, of the services of any officer or employee employed -- (a) in the Public Service; (b) in a State agency; or (c) otherwise in the service of the State. 20 (2) The Commission may by arrangement with -- (a) a department of the Public Service; or (b) a State agency, make use of any facilities of the department or agency. (3) An arrangement under subsection (1) or (2) is to be made on 25 terms agreed to by the parties. page 22 Planning and Development Bill 2004 The Western Australian Planning Commission Part 2 Miscellaneous Division 4 s. 24 Division 4 -- Miscellaneous 24. Execution of documents (1) The Commission is to have a common seal. (2) A document is duly executed by the Commission if -- 5 (a) the common seal of the Commission is affixed to it in accordance with subsections (3) and (4); or (b) it is signed on behalf of the Commission by a person or persons authorised to do so under subsection (5). (3) The common seal of the Commission is not to be affixed to any 10 document except as authorised by the Commission. (4) The common seal of the Commission is to be affixed to a document in the presence of the chairperson and another member, or the chairperson and an officer of the Commission authorised by the Commission either generally or in any 15 particular case to be so present, and each of them is to sign the document to attest that the common seal was so affixed. (5) The Commission may, by writing under its common seal, authorise a member or members or an officer or officers of the Commission to sign documents on behalf of the Commission, 20 either generally or subject to such conditions or restrictions as are specified in the authorisation. (6) A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown. 25 (7) A document executed by a person under this section without the common seal of the Commission is not to be regarded as a deed unless the person executes it as a deed and is authorised under subsection (5) to do so. (8) When a document is produced bearing a seal purporting to be 30 the common seal of the Commission, it is to be presumed that the seal is the common seal of the Commission until the contrary is shown. page 23 Planning and Development Bill 2004 Part 3 State planning policies Division 1 Making of State planning policies s. 25 Part 3 -- State planning policies Division 1 -- Making of State planning policies 25. Continuation of statements of planning policy Any statement of planning policy in force under the Town 5 Planning and Development Act 1928 immediately before this section comes into operation -- (a) continues in force as a State planning policy under this Act; and (b) has effect accordingly. 10 26. Preparation of State planning policy (1) The Commission may, with the approval or on the direction of the Minister, prepare State planning policies. (2) A State planning policy is to be directed primarily towards broad general planning and facilitating the coordination of 15 planning throughout the State by local governments. (3) Despite subsection (2), a State planning policy may make provision for any matter which may be the subject of a local planning scheme. (4) A State planning policy may be prepared so as to apply -- 20 (a) generally or in a particular class of matter or in particular classes of matter; and (b) throughout the State or in a specified portion or specified portions of the State, whether or not a local planning scheme has been prepared or is being prepared 25 in that portion or those portions of the State. page 24 Planning and Development Bill 2004 State planning policies Part 3 Making of State planning policies Division 1 s. 27 27. Matters to which Commission is to have regard In the preparation of a State planning policy the Commission is to have regard to -- (a) demographic, social and economic factors and 5 influences; (b) conservation of natural or cultural resources for social, economic, environmental, ecological and scientific purposes; (c) characteristics of land; 10 (d) characteristics and disposition of land use; (e) amenity, design and environment; (f) communications; and (g) developmental requirements of public authorities, in respect of the State or the portion of the State, or portions of 15 the State, to which the State planning policy is to apply, as the case requires. 28. Consultation (1) When preparing a State planning policy, the Commission -- (a) if the State planning policy is likely to affect a district or 20 districts in particular, is to consult the local government for that district or the local governments for those districts; and (b) in any other case is to consult WALGA, with respect to the proposed State planning policy. 25 (2) The Commission is to deposit copies of the proposed State planning policy for public inspection during ordinary business hours free of charge -- (a) at the office of the Commission; and (b) at not less than 3 other public places which the 30 Commission considers to be convenient for public inspection. page 25 Planning and Development Bill 2004 Part 3 State planning policies Division 1 Making of State planning policies s. 29 (3) As soon as practicable after the deposit of the copies of the proposed State planning policy under subsection (2) the Commission is to cause to be inserted in a daily newspaper and a Sunday newspaper a notice stating -- 5 (a) in short, the purpose of the proposed State planning policy; (b) that the proposed policy has been deposited and the places and times at which it may be inspected free of charge; and 10 (c) the period (being a period of not less than 60 days after the day on which the notice is published) within which, and the form in which, submissions may be made to the Commission on any provision of the proposal. (4) Without limiting subsections (1), (2) and (3), the 15 Commission -- (a) is to make reasonable endeavours to consult in respect of the proposed State planning policy such public authorities and persons as appear to the Commission to be likely to be affected by the policy; and 20 (b) is to take such steps to make public the details of the proposed State planning policy as the Minister may direct, and may take such other steps as it considers necessary to make public the details of the proposed policy. 25 (5) The Commission is to consider any submissions with respect to the proposed State planning policy and may modify the proposed policy as it thinks fit. 29. Approval of Governor (1) The Governor may approve a State planning policy prepared by 30 the Commission with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and which the Governor is by this subsection authorised to make. page 26 Planning and Development Bill 2004 State planning policies Part 3 Making of State planning policies Division 1 s. 30 (2) A State planning policy has no force or effect until it is approved by the Governor and published in the Gazette. 30. Publication of State planning policy The Commission is to cause a copy of any State planning policy 5 approved by the Governor -- (a) to be published in the Gazette; and (b) to be forwarded to each local government, any portion of the district of which is included in the area covered by the policy. 10 31. Amendment or repeal of State planning policy (1) A State planning policy may be amended by amendments prepared by the Commission with the approval of the Minister, or on a direction of the Minister. (2) A State planning policy may be repealed by -- 15 (a) a subsequent State planning policy; or (b) an instrument of repeal -- (i) made by the Commission with the approval of the Minister, or on a direction of the Minister; and 20 (ii) approved by the Minister and published in the Gazette. (3) Sections 26, 27, 28, 29 and 30 apply, with such modifications as are necessary, to and in relation to an amendment as if the amendment were a State planning policy. 25 32. Environmental review The Commission may, in relation to a particular State planning policy or an amendment to such a policy, act under sections 81, 82, 84, 85 and 86 as if -- (a) the Commission were a local government; and 30 (b) that policy or amendment were a local planning scheme, but otherwise this Part applies to that policy or amendment. page 27 Planning and Development Bill 2004 Part 4 Region planning schemes Division 1 Continuation and formulation of region planning schemes s. 33 Part 4 -- Region planning schemes Division 1 -- Continuation and formulation of region planning schemes 33. Planning schemes continued 5 (1) The Metropolitan Region Scheme in force under the Metropolitan Region Town Planning Scheme Act 1959 immediately before this section comes into operation -- (a) continues in force as a region planning scheme under this Act; and 10 (b) has effect as if it were enacted by this Act. (2) Any regional planning scheme in force under the Western Australian Planning Commission Act 1985 immediately before this section comes into operation -- (a) continues in force as a region planning scheme under 15 this Act; and (b) has effect as if it were enacted by this Act. 34. Region planning schemes (1) If, in the opinion of the Commission or the Minister, matters of State or regional importance so require, the Commission is to 20 prepare such region planning schemes, and amendments to region planning schemes, as may be necessary for the purposes of this Act. (2) A region planning scheme may be prepared for all or any of the objects, purposes, provisions, powers or works referred to in 25 section 69(1) and may provide for planning, replanning or reconstructing the whole or any part of a region. page 28 Planning and Development Bill 2004 Region planning schemes Part 4 Continuation and formulation of region planning schemes Division 1 s. 35 35. Preparation of region planning scheme or amendment (1) Subject to section 36, the Commission may resolve to prepare a region planning scheme or an amendment to a region planning scheme. 5 (2) Immediately after resolving to prepare a region planning scheme, the Commission is to ensure compliance with the relevant procedures set out in Divisions 2 and 3. (3) Immediately after resolving to prepare an amendment to a region planning scheme, the Commission is to ensure 10 compliance in respect of that amendment with the relevant procedures set out in Divisions 2, 3 and 4. 36. Restrictions on making or amendment of region planning scheme for metropolitan region The Metropolitan Region Scheme and any other region scheme 15 applicable to the metropolitan region are not to be made or amended under this Act -- (a) in a manner that is contrary to or inconsistent with -- (i) a provision of Part 5 of the Swan River Trust Act 1988; or 20 (ii) an amendment made to the Metropolitan Region Scheme by section 14, 15, 16 or 17 of the Acts Amendment (Swan River Trust) Act 1988; (b) in a manner that is contrary to or inconsistent with any Order made under section 59 of the Heritage of Western 25 Australia Act 1990, except in so far as may be ordered on an appeal or referral made under section 60 of that Act to the Tribunal; (c) without limiting section 38 of the East Perth Redevelopment Act 1991, section 45 of the Subiaco 30 Redevelopment Act 1994, section 45 of the Midland Redevelopment Act 1999 or section 43 of the Armadale Redevelopment Act 2001, to make any provision in respect of land in the redevelopment area under any of page 29 Planning and Development Bill 2004 Part 4 Region planning schemes Division 2 Prerequisites to region planning scheme or amendment s. 37 those Acts so long as there is in operation in respect of that land a redevelopment scheme under Part 4 of any of those Acts; or (d) without limiting section 23 of the Hope Valley-Wattleup 5 Redevelopment Act 2000, to make any provision in respect of land in the redevelopment area within the meaning of that Act. 37. Region planning scheme may be amended or repealed (1) A region planning scheme may be amended under this Act. 10 (2) A region planning scheme may be repealed by -- (a) a subsequent region planning scheme; or (b) an instrument of repeal prepared by the Commission, approved by the Minister and published in the Gazette. Division 2 -- Prerequisites to region planning scheme 15 or amendment 38. All proposed region planning schemes and amendments to be referred to EPA (1) When the Commission resolves to prepare a region planning scheme or an amendment to a region planning scheme, the 20 Commission is to forthwith refer that scheme or amendment to the EPA by giving to the EPA -- (a) written notice of the resolution; and (b) such written information about that scheme or amendment as is sufficient to enable the EPA to comply 25 with section 48A of the EP Act in relation to the scheme or amendment. (2) This section applies in respect of an amendment whether or not the amendment constitutes a substantial alteration to a region planning scheme. page 30 Planning and Development Bill 2004 Region planning schemes Part 4 Prerequisites to region planning scheme or amendment Division 2 s. 39 39. Environmental review and consent to public submissions (1) In this section -- "instructions" means instructions issued under section 48C(1)(a) of the EP Act. 5 (2) When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed region planning scheme or amendment to a region planning scheme, the Commission, if it wishes to proceed with that scheme or amendment, is to undertake an environmental review of that scheme or amendment in 10 accordance with the relevant instructions. (3) The Commission is not to submit a scheme or an amendment referred to in subsection (2) to the Minister under section 42 for consent to public submissions being sought, or act in relation to that scheme under section 58, as the case requires, until -- 15 (a) the Commission has forwarded the environmental review to the EPA; and (b) the EPA has advised that that review has been undertaken in accordance with the relevant instructions, or 30 days have elapsed since the review was forwarded 20 without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs. (4) If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions, the Commission 25 may -- (a) comply with subsection (2) in respect of the scheme or amendment concerned; or (b) request the Minister to consult the Minister for the Environment and, if possible, agree with the Minister for 30 the Environment on whether or not the review has been undertaken in accordance with those instructions. page 31 Planning and Development Bill 2004 Part 4 Region planning schemes Division 2 Prerequisites to region planning scheme or amendment s. 40 (5) If the Minister, having complied with a request under subsection (4), and the Minister for the Environment -- (a) agree on whether or not the review has been undertaken in accordance with the relevant instructions, their 5 decision is final and without appeal or review; or (b) cannot so agree, section 48J of the EP Act applies. 40. Referrals to Swan Valley Planning Committee before public submissions (1) The Commission, before submitting to the Minister under 10 section 42 a scheme or amendment that would apply to land in the Swan Valley, is to refer the scheme or amendment to the Swan Valley Planning Committee. (2) The Committee, within 42 days after the day on which it receives the referral, or within such longer period as the 15 Commission allows, is to give to the Commission its written advice on the scheme or amendment including any modifications it thinks should be made. (3) If the Committee fails to give its advice within the time allowed under subsection (2), it is taken to have no advice to give on the 20 scheme or amendment. (4) The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee's advice in whole or in part in preparing the scheme or amendment. (5) Subject to any approval under subsection (4), the Commission is 25 to prepare the scheme or amendment in accordance with any advice given by the Committee under this section. page 32 Planning and Development Bill 2004 Region planning schemes Part 4 Making of region planning scheme and amendments Division 3 s. 41 Division 3 -- Making of region planning scheme and amendments 41. Procedure Subject to Division 4, the Commission is to adopt the procedure 5 set out in this Division for submitting and obtaining approval of any region planning scheme or amendment to a region planning scheme (in this Division referred as the "scheme or amendment") formulated by the Commission. 42. Consent to public submissions 10 Subject to Division 4, the scheme or amendment when prepared by the Commission and after sections 38 and 39 have been complied with, is to be submitted, together with such reports, surveys and other material as the Commission considers desirable, to the Minister for the Minister's consent to public 15 submissions being sought. 43. Deposit and notification of scheme or amendment (1) If the Minister consents to public submissions being sought in respect of the scheme or amendment the Commission is to deposit copies of -- 20 (a) the scheme or amendment; and (b) a statement setting out the purpose and planning objectives of the scheme or amendment, for public inspection during ordinary business hours free of charge at the places listed in subsection (2). page 33 Planning and Development Bill 2004 Part 4 Region planning schemes Division 3 Making of region planning scheme and amendments s. 43 (2) For the purposes of subsection (1) the scheme or amendment and statement are to be deposited -- (a) in the case of a region planning scheme, or an amendment to a region planning scheme other than the 5 Metropolitan Region Scheme -- (i) at the offices of the local governments of the districts which lie within or partly within the area to which the region planning scheme applies; and (ii) at not less than 3 other public places which the 10 Commission considers to be most convenient for public inspection; and (b) in the case of an amendment to the Metropolitan Region Scheme -- 15 (i) at the offices of the Commission; (ii) at the offices of the City of Perth and the City of Fremantle; and (iii) at not less than 3 other public places in the metropolitan region which the Commission 20 considers to be most convenient for public inspection. (3) As soon as practicable after the deposit of the copies under subsection (1) the Commission is to cause to be inserted at least 3 times in each of the following publications -- 25 (a) the Gazette; (b) a daily newspaper circulating in the area to which the region planning scheme applies; (c) a Sunday newspaper circulating in the area to which the region planning scheme applies, 30 a notice stating -- (d) in short, the purpose and planning objectives of the scheme or amendment; page 34 Planning and Development Bill 2004 Region planning schemes Part 4 Making of region planning scheme and amendments Division 3 s. 44 (e) that the scheme or amendment has been deposited and the places and times at which it may be inspected free of charge; and (f) that submissions on any provision of the scheme or 5 amendment may be made to the Commission in the form specified in the notice within the period specified in the notice (being a period not less than 3 months from the date the notice is first published in the Gazette). (4) If the scheme or amendment changes the zoning or reservation 10 of land, the Commission, within 7 days of the publication of the notice in the Gazette, is to make reasonable endeavours to give written notice of the scheme or amendment to the owners of land of which the zoning or reservation is changed. (5) The Commission is to -- 15 (a) make reasonable endeavours to consult in respect of the scheme or amendment such public authorities and persons as appear to the Commission to be likely to be affected by the scheme or amendment; and (b) take such steps to make public the details of the scheme 20 or amendment as the Minister may direct, and may take such other steps as it considers necessary to make public the details of the scheme or amendment. 44. Submissions to Commission (1) Submissions on the scheme or amendment may be made at any 25 time within the period prescribed in the notice under section 43(3)(f). (2) The Commission is to consider all submissions that are duly lodged. page 35 Planning and Development Bill 2004 Part 4 Region planning schemes Division 3 Making of region planning scheme and amendments s. 45 45. Role of Commission in relation to environmental submissions on scheme or amendment (1) In this section -- "proposed amendment" means proposed amendment to a 5 region planning scheme under this Division. (2) When the Commission has been informed under section 48A(1)(b)(i) of the EP Act that the proposed scheme or proposed amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the Commission is to -- 10 (a) as soon as practicable, but in any event within 7 days after the expiry of the period referred to in section 44(1), transmit to the EPA a copy of each submission made to the Commission under section 44(1) and relating wholly or in part to environmental issues raised by the proposed 15 scheme or proposed amendment; and (b) within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in section 44(1), inform the EPA of its views on and response to the environmental issues raised by the 20 submissions referred to in paragraph (a) and received within that period. 46. Person making submission may be heard (1) The Commission is to give each person making a submission or the person's agent the opportunity of being heard on the 25 submission by the Commission or by a committee established under Schedule 2. (2) Where a submission is made by a group of persons, the group is to appoint one person to represent the group and only that person may be heard under subsection (1). page 36 Planning and Development Bill 2004 Region planning schemes Part 4 Making of region planning scheme and amendments Division 3 s. 47 47. Referrals to Swan Valley Planning Committee after public submissions (1) Where as required by section 40(5), a scheme or amendment has been prepared in accordance with advice given by the Swan 5 Valley Planning Committee and after considering public submissions on the scheme or amendment the Commission has modified the scheme or amendment in a way which is not in accordance with that advice, the Commission is to, before submitting that scheme or amendment to the Minister under 10 section 48, refer the scheme or amendment, with the other documents referred to in that section, back to the Committee for its comments and advice. (2) Where the Swan Valley Planning Committee has any comment to make, or advice to give, on a scheme or amendment or the 15 other documents referred to it under subsection (1) it is to give a written report to the Commission and that report is to be submitted to the Minister along with the other documents referred to in section 48. (3) If the Swan Valley Planning Committee does not report to the 20 Commission within 42 days of the referral under subsection (2) it is taken to have no comment to make or advice to give. 48. Submissions to Minister (1) Subject to section 47, after -- (a) sections 38 and 39 have been complied with in relation 25 to the scheme or amendment; and (b) considering all submissions that have been duly lodged, the Commission is to submit to the Minister -- (c) the scheme or amendment to which those submissions relate, with the modifications, if any, it thinks fit to 30 make; (d) a copy of each of those submissions; and (e) a report by the Commission on those submissions. page 37 Planning and Development Bill 2004 Part 4 Region planning schemes Division 3 Making of region planning scheme and amendments s. 49 (2) For the purposes of subsection (1) the Commission may adopt a report by a committee referred to in section 46(1) and submit it as, or include it in, the report of the Commission. 49. Minister may withdraw scheme or amendment 5 If -- (a) the report of the Commission; or (b) in the case of a scheme or amendment that would apply to land in the Swan Valley, a report of the Swan Valley Planning Committee under section 47, 10 submitted with a scheme or amendment under section 48, recommends that the scheme or amendment should not proceed, the Minister may, instead of presenting the scheme or amendment to the Governor for consideration, withdraw the scheme or amendment. 15 50. Prerequisite for final approval of Minister The Minister is not to present to the Governor a proposed scheme or amendment referred to the EPA under section 38 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until -- 20 (a) the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that scheme or amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act; (b) the Minister has received a statement under 25 section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that scheme or amendment is subject; or (c) the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having 30 informed the Commission under that section, whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that scheme or amendment is subject have been incorporated into that scheme or amendment. page 38 Planning and Development Bill 2004 Region planning schemes Part 4 Making of region planning scheme and amendments Division 3 s. 51 51. Directions by Minister (1) Before presenting the scheme or amendment to the Governor for consideration, if the Minister is of the opinion that any modification made to the scheme or amendment by the 5 Commission is of such a substantial nature as to warrant such action, the Minister may direct the Commission to again deposit the scheme or amendment as so modified, or that portion of the scheme or amendment which is so modified, for public inspection at such time and at such places as the Minister 10 directs. (2) The Minister may direct the Commission to publish such notices in connection with the scheme or amendment as the Minister thinks appropriate. (3) The Commission is to comply with the directions. 15 52. Procedure on modifications (1) A person who desires to make a submission on modifications made by the Commission may notify the Minister in writing in the form approved by the Commission. (2) The Minister is to direct the Commission to consider and report 20 on the submission to the Minister in accordance with the procedure set out in sections 46 and 48. (3) If a report submitted with a scheme or amendment under section 48 as read with subsections (1) and (2) recommends that the scheme or amendment should not be proceeded with, the 25 Minister may, instead of presenting the scheme or amendment to the Governor for consideration, withdraw the scheme or amendment. 53. Approval of Governor (1) If the Minister has not withdrawn the scheme or amendment 30 under section 49 or 52(3), the Minister is to present the scheme or amendment to the Governor. page 39 Planning and Development Bill 2004 Part 4 Region planning schemes Division 3 Making of region planning scheme and amendments s. 54 (2) The Governor may approve the scheme or amendment with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and the Governor is by this subsection authorised to make such modifications. 5 54. Publication of scheme or amendment When the Governor has approved the scheme or amendment, whether with or without modifications -- (a) the scheme or amendment, or the scheme or amendment as so modified, but not including any maps, plans or 10 diagrams, is to be published in the Gazette; and (b) the maps, plans and diagrams are to be open for public inspection at such times and such places as the Minister determines. 55. Approval of scheme or amendment may be revoked 15 (1) The Governor may, on the recommendation of the Minister and at any time before the scheme or amendment has effect, revoke his or her approval of the scheme or amendment. (2) The Governor may, on the recommendation of the Minister and at any time before the scheme or amendment is published in the 20 Gazette, revoke his or her approval of part of the scheme or amendment. (3) If the approval is revoked under subsection (1) or (2) before the scheme or amendment has been published in the Gazette, section 54 does not apply in respect of the scheme or 25 amendment, or, if the approval is revoked in respect of part of the scheme or amendment, the part of the scheme or amendment in respect of which the approval is revoked, as the case requires. (4) If the approval is revoked under subsection (1) after notice of the scheme or amendment has been published in the Gazette and 30 before the scheme is laid before both Houses of Parliament -- (a) section 56(1) does not apply in respect of the scheme or amendment; and page 40 Planning and Development Bill 2004 Region planning schemes Part 4 Making of region planning scheme and amendments Division 3 s. 56 (b) notice of the revocation is to be published in the Gazette. (5) If the approval of the scheme or amendment is revoked under subsection (1) after the scheme or amendment is laid before 5 both Houses of Parliament -- (a) the scheme or amendment is to be withdrawn; and (b) notice of the revocation is to be published in the Gazette. 56. Scheme or amendment may be disallowed 10 (1) A copy of the scheme or amendment and a copy of the report of the Commission on the submissions referred to in sections 48 and 52 are to be laid before each House of Parliament within 6 sitting days of that House next following the date of the publication of the scheme or amendment in the Gazette. 15 (2) Either House of Parliament may, by resolution of which notice has been given within 12 sitting days of that House after the scheme or amendment has been laid before it under subsection (1), pass a resolution disallowing the scheme or amendment. 20 (3) As soon as the scheme or amendment is no longer subject to disallowance under subsection (2), the scheme or amendment has effect as if it were enacted by this Act. (4) If either House of Parliament passes a resolution disallowing the scheme or amendment, notice of the disallowance is to be 25 published in the Gazette within 21 days of the passing of the resolution. (5) It does not matter whether or not the period of -- (a) 6 sitting days referred to in subsection (1) or some of them; or 30 (b) 12 sitting days referred to in subsection (2) or some of them, page 41 Planning and Development Bill 2004 Part 4 Region planning schemes Division 4 Minor amendments to region planning scheme s. 57 occur during the same session of Parliament, or the same Parliament, as that in which the relevant scheme or amendment is laid before the House of Parliament concerned. Division 4 -- Minor amendments to region planning scheme 5 57. Minor amendment (1) If a proposed amendment does not, in the opinion of the Commission, constitute a substantial alteration to a region planning scheme, that amendment -- (a) is not required to be submitted and approved in 10 accordance with the procedure prescribed in Division 3; and (b) instead, may be submitted and approved in accordance with the procedure prescribed in this Division. (2) Despite subsection (1), an amendment cannot be made to the 15 Metropolitan Region Scheme under this Division to change the zoning of any land in the Swan Valley. 58. Notification of minor amendment (1) If under section 57 a proposed amendment is not required to be submitted and approved in accordance with the procedure 20 prescribed in Division 3, the Commission, after sections 38 and 39 have been complied with in relation to that amendment, is to -- (a) send a copy of the amendment to the Minister; (b) publish in the Gazette and in a daily newspaper 25 circulating in the area to which the region scheme applies a notice -- (i) describing the amendment; (ii) stating where and when the amendment will be available for inspection; page 42 Planning and Development Bill 2004 Region planning schemes Part 4 Minor amendments to region planning scheme Division 4 s. 59 (iii) stating that submissions on any provision of the amendment may be made to the Commission in the form set out in that notice within the period specified in the notice (being a period of not less 5 than 60 days after publication of the notice); and (iv) certifying that, in the opinion of the Commission, the amendment does not constitute a substantial alteration to the relevant region planning scheme; (c) if the amendment changes the zoning or reservation of 10 land, within 7 days of the publication referred to in paragraph (b), make reasonable endeavours to give written notice of the amendment to the owner of land of which the zoning or reservation is changed; and (d) make reasonable endeavours to consult in respect of that 15 amendment such public authorities and persons as appear to the Commission to be likely to be affected by that amendment. (2) When a submission is made by a group of persons, that group is to appoint one person to represent that group for the purposes of 20 the submission. 59. Consideration of submissions on minor amendment If the Commission receives any submissions in accordance with the relevant notice published under section 58 the Commission is to consider, and make a report and recommendation to the 25 Minister on, those submissions. 60. Role of Commission in relation to environmental submissions on minor amendment (1) In this section -- "proposed amendment" means proposed amendment to a 30 region planning scheme under this Division. page 43 Planning and Development Bill 2004 Part 4 Region planning schemes Division 4 Minor amendments to region planning scheme s. 61 (2) When the Commission has been informed under section 48A(1)(b)(i) of the EP Act that the proposed amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the Commission is to -- 5 (a) as soon as practicable, but in any event within 7 days after the expiry of the period referred to in section 58(1)(b)(iii), transmit to the EPA a copy of each submission made to the Minister under section 58(1)(b)(iii) and relating wholly or in part to 10 environmental issues raised by the proposed amendment; and (b) within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in section 58(1)(b)(iii), inform the EPA of its views on and 15 response to the environmental issues raised by the submissions referred to in paragraph (a) and received within that period. 61. Prerequisite for final approval by Minister of proposed minor amendment 20 The Minister is not to approve under section 62(1) a proposed amendment to a region planning scheme referred to the EPA under section 60 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until -- 25 (a) the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act; (b) the Minister has received a statement under 30 section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that amendment is subject; or page 44 Planning and Development Bill 2004 Region planning schemes Part 4 Minor amendments to region planning scheme Division 4 s. 62 (c) the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the Commission under that section, whichever first occurs, and the Minister is satisfied that the 5 conditions, if any, to which that amendment is subject have been incorporated into that amendment. 62. Minister may approve or decline to approve minor amendment (1) On receiving a report and recommendation made to the Minister 10 under section 59, the Minister may, after complying with section 60 in relation to the amendment concerned -- (a) approve, with such modifications, if any, as the Minister considers it necessary to make; or (b) decline to approve, 15 the proposed amendment to which that report and recommendation relate. (2) When the Minister has approved a proposed amendment under subsection (1) the Commission is to cause -- (a) that amendment or that amendment as modified under 20 subsection (1), as the case requires, excluding any maps, plans or diagrams forming part of that amendment, to be published in the Gazette; and (b) any maps, plans or diagrams forming part of that amendment to be open for inspection at such times and 25 places as the Commission determines. (3) The amendment or the amendment as modified under subsection (1), as the case requires, has effect on publication under subsection (2) as if it were enacted by this Act. page 45 Planning and Development Bill 2004 Part 4 Region planning schemes Division 5 Consolidation of region planning scheme s. 63 Division 5 -- Consolidation of region planning scheme 63. Minister may direct consolidation (1) The Minister may direct the Commission to deliver to the Minister a consolidation of a region planning scheme as in force 5 at the date specified in the direction. (2) On receipt of a direction under subsection (1) the Commission is to cause to be prepared a consolidation of the region planning scheme incorporating all amendments to the scheme in force on the date specified in the direction. 10 64. Maps, plans, diagrams may be added or substituted (1) In the preparation of the consolidation there may be included, in addition to or in substitution for, any maps, plans and diagrams forming part of the region planning scheme, such maps, plans or diagrams, prepared on such scale or scales, as, in the opinion of 15 the Commission, are necessary to state and represent, in an informative and convenient form, the scope, effect and details of the region planning scheme as amended. (2) Where an addition or substitution under subsection (1) necessitates the making of a consequential amendment to the 20 text of the region planning scheme, that amendment is to be made in the consolidation. (3) Where an addition, substitution or other amendment is effected under subsection (1) or (2) the region planning scheme is taken to be amended accordingly on and from the publication of 25 notice of consolidation under section 66(1) but the provisions of Divisions 3 and 4 and the Metric Conversion Act 1972 do not apply to any such addition, substitution or other amendment. page 46 Planning and Development Bill 2004 Region planning schemes Part 4 Consolidation of region planning scheme Division 5 s. 65 65. Certification and delivery of consolidation After preparing the consolidation the Commission is to -- (a) seal the consolidation and certify on the consolidation that it is a correct statement and representation of the 5 region planning scheme as in force at the date specified in the direction given by the Minister; and (b) deliver the consolidation to the Minister. 66. Proof of consolidation (1) If the Minister approves of the consolidation and signs the 10 consolidation, the Commission is to publish notice of the consolidation in the Gazette. (2) After publication of the notice -- (a) the consolidation is to be judicially noticed by all courts, tribunals, bodies and persons; and 15 (b) the consolidation is to be taken, unless the contrary intention is shown, to be a correct statement and representation of the region planning scheme as in force on the date specified in the Minister's direction. 67. Consolidation of portion of region planning scheme 20 (1) The Minister may direct the Commission to deliver to the Minister a consolidation of the portion of a region planning scheme (whether by reference to a map of the scheme or any other portion of the scheme) as is specified in the direction. (2) The provisions of this Division apply to and in relation to the 25 consolidation of the portion of the scheme so specified in the direction as though the portion of the scheme so specified were the whole scheme. page 47 Planning and Development Bill 2004 Part 5 Local planning schemes Division 1 Continuation and formulation of local planning schemes s. 68 Part 5 -- Local planning schemes Division 1 -- Continuation and formulation of local planning schemes 68. Town planning schemes continued as local planning schemes 5 (1) Any town planning scheme in force under the Town Planning and Development Act 1928 on the day on which this section comes into operation -- (a) continues in force as a local planning scheme under this Act; and 10 (b) has effect as if it were enacted by this Act. (2) Nothing in this Act affects the validity of a town planning scheme continued under subsection (1). 69. General objects of local planning scheme (1) A local planning scheme may be made under this Act with 15 respect to any land -- (a) with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and (b) making provision for all or any of the purposes, 20 provisions, powers or works referred to in Schedule 7. (2) With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area. 70. Scheme may be made for land outside scheme or be 25 concurrent with another scheme (1) Nothing in this Act prevents -- (a) a local planning scheme from being made with respect to land comprised in another local planning scheme; or page 48 Planning and Development Bill 2004 Local planning schemes Part 5 Continuation and formulation of local planning schemes Division 1 s. 71 (b) subject to subsection (2), 2 or more local planning schemes from having force and effect concurrently with respect to any land. (2) The zoning of land in an area to which a local planning scheme 5 applies is not to be provided for in more than one local planning scheme applicable to that area. 71. Prohibition on making local planning scheme in redevelopment area A local planning scheme is not to be made for any land that 10 is -- (a) in the development area within the meaning of the East Perth Redevelopment Act 1991, the Subiaco Redevelopment Act 1994, the Midland Redevelopment Act 1999 or the Armadale Redevelopment Act 2001, so 15 long as there is in operation in respect of that land a redevelopment scheme under Part 4 of any of those Acts; or (b) in the redevelopment area within the meaning of the Hope Valley-Wattleup Redevelopment Act 2000. 20 72. Local government may prepare or adopt scheme (1) Subject to section 71, a local government may -- (a) prepare a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district; or 25 (b) adopt, with or without modifications, a local planning scheme proposed by all or any of the owners of any land with respect to which the local government might itself have prepared a scheme. (2) A local government and another local government may -- 30 (a) jointly prepare a local planning scheme with respect to land that is partly in the district of the first-mentioned local government and partly in the district of the other local government; or page 49 Planning and Development Bill 2004 Part 5 Local planning schemes Division 1 Continuation and formulation of local planning schemes s. 73 (b) jointly adopt, with or without modifications, a local planning scheme proposed by all or any of the owners of any land with respect to which the local governments might themselves have prepared a scheme. 5 (3) Where a local planning scheme is prepared or adopted under subsection (2) a reference in this Act to the local government or responsible authority that is preparing or has prepared the scheme is to be read as a reference to the local governments that join in the preparation or adoption of the scheme. 10 73. Provisions of local planning scheme (1) A local planning scheme is to -- (a) define in such manner as may be prescribed by the regulations the area to which the scheme is to apply; (b) specify the local government to be responsible for 15 enforcing the observance of the scheme, and for the execution of any works which, under the scheme or this Act, are to be executed by a local government; (c) provide for matters which may be dealt with by general provisions prescribed under section 283; 20 (d) otherwise supplement, exclude or vary the general provisions to the extent approved by the Minister; and (e) deal with any special circumstances or contingencies for which adequate provision is not made by the general provisions. 25 (2) Where land included in a local planning scheme is in the districts of more than one local government, or is in the district of a local government by which the scheme was not prepared, the responsible authority in relation to the local planning scheme may be one of those local governments, or for certain 30 purposes of the scheme one local government, and for other purposes of the scheme another local government. page 50 Planning and Development Bill 2004 Local planning schemes Part 5 Minister's powers in relation to local planning schemes Division 2 s. 74 74. Local planning scheme may be repealed A local planning scheme may be repealed by -- (a) a subsequent local planning scheme; or (b) an instrument of repeal prepared by the local 5 government, approved by the Minister and published in the Gazette. 75. Local planning scheme may be amended A local government may amend a local planning scheme with reference to any land within its district, or with reference to land 10 within its district and other land within any adjacent district, by an amendment -- (a) prepared by the local government, approved by the Minister and published in the Gazette; or (b) proposed by all or any of the owners of any land in the 15 scheme area, adopted, with or without modifications, by the local government, approved by the Minister and published in the Gazette. Division 2 -- Minister's powers in relation to local planning schemes 20 76. Minister may order local government to prepare or adopt local planning scheme (1) If the Minister is satisfied on any representation that a local government -- (a) has failed to take the requisite steps for having a 25 satisfactory local planning scheme prepared and approved in a case where a local planning scheme ought to be made; (b) has failed to adopt any scheme proposed by owners of any land, in a case where a local planning scheme ought 30 to be adopted; or page 51 Planning and Development Bill 2004 Part 5 Local planning schemes Division 3 Relevant considerations in preparation or amendment of local planning scheme s. 77 (c) has refused to consent to any modifications or conditions imposed by the Minister, the Minister may order the local government, within such time as is specified in the order, to prepare and submit for the 5 approval of the Minister a local planning scheme, or to adopt a local planning scheme, or to consent to the modifications or conditions imposed. (2) If the representation under subsection (1) is that a local government has failed to adopt a scheme, the Minister, in lieu of 10 making an order to adopt the scheme, may approve of the proposed scheme subject to such modifications and conditions, if any, as the Minister thinks fit. (3) A scheme approved under subsection (2) has effect as if it had been adopted by the local government and approved by the 15 Minister under this Part. Division 3 -- Relevant considerations in preparation or amendment of local planning scheme 77. Effect of State planning policy (1) Every local government in preparing or amending a local 20 planning scheme -- (a) is to have due regard to any State planning policy which affects its district; and (b) may include in the scheme a provision that a specified State planning policy, with such modifications as may 25 be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect. (2) Where a scheme includes a provision referred to in subsection (1)(b) -- 30 (a) the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent page 52 Planning and Development Bill 2004 Local planning schemes Part 5 Relevant considerations in preparation or amendment of local Division 3 planning scheme s. 78 policy by which it is repealed under this Act, were set out in full in the scheme; and (b) the State planning policy is to have effect as part of the scheme subject to any modifications set out in the 5 scheme. (3) Modifications referred to in subsection (2)(b) prevail over any later amendment of the State planning policy, or subsequent policy referred to in subsection (2)(a), which is inconsistent with the modifications. 10 78. Schemes and amendments applicable to the Swan Valley (1) If the City of Swan resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, that would apply to land in the Swan Valley, that City, before the scheme or the amendment is advertised for public inspection 15 under the regulations, is to refer the proposed scheme or amendment to the Swan Valley Planning Committee. (2) The Swan Valley Planning Committee, within 42 days after the day on which it receives the referral, or within such longer period as the City of Swan allows, is to give to the City its 20 written advice on the proposed scheme or amendment, including any modifications it thinks should be made. (3) If the Swan Valley Planning Committee fails to give its advice within the time allowed under subsection (2), it is taken to have no advice to give on the proposed scheme or amendment. 25 (4) The Commission may, at the request of the City of Swan, approve of the City disregarding the Committee's advice in whole or in part in preparing the scheme or amendment. (5) Subject to any approval under subsection (4), the City of Swan is to prepare the local planning scheme or the amendment in 30 accordance with any advice given by the Swan Valley Planning Committee under this section. page 53 Planning and Development Bill 2004 Part 5 Local planning schemes Division 3 Relevant considerations in preparation or amendment of local planning scheme s. 79 79. Advice from Heritage Council If an entry in the Register or on any inventory maintained under section 45 or 46 of the Heritage of Western Australia Act 1990 relates to land or waters that are within or abut a local 5 government district, the local government in preparing or amending a local planning scheme -- (a) is to refer the proposed scheme or amendment to the Heritage Council for advice in so far as any proposal under that scheme or amendment affects or may affect 10 any such land or waters; (b) is to have regard to any advice given; and (c) is not to proceed, without the consent of the Minister, with the proposal unless or until that advice has been received. 15 80. Swan River management programme If a management programme in force under Part 3 of the Swan River Trust Act 1988 relates to land or waters that are within or abut the district of a local government referred to in Schedule 2 of that Act, the local government in preparing or amending a 20 local planning scheme is to have due regard to that management programme. 81. Referral of scheme or amendment to EPA When a local government resolves to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, 25 the local government is to forthwith refer the proposed local planning scheme or amendment to the EPA by giving to the EPA -- (a) written notice of that resolution; and (b) such written information about the local planning 30 scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the local planning scheme or amendment. page 54 Planning and Development Bill 2004 Local planning schemes Part 5 Relevant considerations in preparation or amendment of local Division 3 planning scheme s. 82 82. Environmental review (1) When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed local planning scheme or a proposed amendment to a local planning scheme, the local government 5 concerned, if it wishes to proceed with that local planning scheme or amendment, is to undertake, or cause under subsection (5) to be undertaken, an environmental review of that local planning scheme or amendment in accordance with the relevant instructions issued under that section. 10 (2) The local government is not to advertise that local planning scheme or amendment under section 84 until -- (a) the local government has forwarded the environmental review to the EPA; and (b) the EPA has advised that that review has been 15 undertaken in accordance with those instructions, or 30 days have elapsed since that forwarding without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs. 20 (3) If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act, the local government may -- (a) comply with subsection (1) in respect of the local planning scheme or amendment concerned; or 25 (b) request the Minister to consult the Minister for the Environment and, if possible, agree with that Minister on whether or not the review has been undertaken in accordance with those instructions. (4) If the Minister, having complied with a request made under 30 subsection (3), and the Minister for the Environment -- (a) agree on whether or not the review has been undertaken in accordance with the relevant instructions, their decision is final and without appeal or review; or (b) cannot so agree, section 48J of the EP Act applies. page 55 Planning and Development Bill 2004 Part 5 Local planning schemes Division 3 Relevant considerations in preparation or amendment of local planning scheme s. 83 (5) If -- (a) the resolution to prepare or adopt a local planning scheme, or an amendment to a local planning scheme, referred to in subsection (1) was passed at the request of 5 the owner of land to which that local planning scheme or amendment relates; (b) the local government referred to in that subsection by written notice served on that owner requests the owner to undertake an environmental review of that local 10 planning scheme or amendment in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act; and (c) that owner wishes that local planning scheme or amendment to proceed, 15 the owner is to undertake the environmental review and forward that review to that local government. (6) The local government may, in accordance with regulations made under section 286, recover the expenses incurred by the local government in undertaking an environmental review in 20 accordance with instructions issued under section 48C(1)(a) of the EP Act. 83. Consultation of persons likely to be affected A local government, before submitting a local planning scheme or amendment to the Minister under section 87, is to make 25 reasonable endeavours to consult in respect of the local planning scheme or amendment such public authorities and persons as appear to the local government to be likely to be affected by the local planning scheme or amendment. page 56 Planning and Development Bill 2004 Local planning schemes Part 5 Advertisement and approval Division 4 s. 84 Division 4 -- Advertisement and approval 84. Advertisement of scheme or amendment After compliance with sections 81 and 82, a local planning scheme prepared or adopted, or an amendment to a local 5 planning scheme prepared or adopted, by a local government, is to be advertised for public inspection in accordance with the regulations. 85. Role of local governments in relation to environmental submissions 10 (1) When a local government has been informed under section 48A(1)(b)(i) of the EP Act that a proposed local planning scheme or amendment should be assessed by the EPA under Part IV Division 3 of the EP Act, the local government is to -- 15 (a) as soon as practicable, but in any event within 7 days after the expiry of the period during which that local planning scheme or amendment is advertised under section 84, transmit to the EPA a copy of each submission -- 20 (i) made during that period; and (ii) relating wholly or in part to environmental issues raised by that local planning scheme or amendment; and 25 (b) within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in paragraph (a) inform the EPA of its views on and response to the environmental issues referred to in paragraph (a) and received within that period. page 57 Planning and Development Bill 2004 Part 5 Local planning schemes Division 4 Advertisement and approval s. 86 86. Prerequisite to final approval by Minister The Minister is not to approve under section 87(2) of a proposed local planning scheme or amendment referred to the EPA under section 81 if the Minister has reached agreement with the 5 Minister for the Environment under section 48A(2)(b) of the EP Act, or until -- (a) the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that that local planning scheme or amendment should not be assessed by the 10 EPA under Part IV Division 3 of the EP Act; (b) the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that local planning scheme or amendment 15 is subject; or (c) the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the local government under that section, whichever first occurs, and the Minister is satisfied that the 20 conditions, if any, to which that amendment is subject have been incorporated into that local planning scheme or amendment. 87. Approval and publication of scheme or amendment (1) Subject to section 83, after advertisement under section 84 and 25 compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister. (2) The Minister may, in relation to a local planning scheme or 30 amendment submitted to the Minister under subsection (1) -- (a) approve of that local planning scheme or amendment; (b) require the local government concerned to modify that local planning scheme or amendment in such manner as page 58 Planning and Development Bill 2004 Local planning schemes Part 5 Review of local planning schemes Division 5 s. 88 the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister's approval under this subsection; or (c) refuse to approve of that local planning scheme or 5 amendment. (3) When the Minister has approved a local planning scheme or an amendment to a local planning scheme, the local government is to -- (a) cause the scheme or amendment to be published in the 10 Gazette; (b) advertise the scheme or amendment in accordance with the regulations; and (c) ensure that copies of the scheme or amendment are available to the public. 15 (4) A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act. (5) It is sufficient compliance with subsection (3) if a local planning 20 scheme or amendment to a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme or amendment. Division 5 -- Review of local planning schemes 88. Local government to prepare consolidation 25 (1) For the purposes of section 90, a local government by which a local planning scheme was prepared is to prepare a consolidation of the scheme incorporating all the amendments that have been made to the scheme and are of effect on the day on which the resolution to prepare the consolidation is made. page 59 Planning and Development Bill 2004 Part 5 Local planning schemes Division 5 Review of local planning schemes s. 88 (2) The consolidation is to be prepared -- (a) in the fifth year after approval was given to the scheme by the Minister under section 87; (b) in the case of a scheme in respect of which a 5 consolidation has been published in the Gazette under this Part, in the fifth year after the consolidation of the scheme was last so published; and (c) in the case of a scheme in respect of which an exemption is granted under subsection (4)(b) or 10 section 91(3), in the fifth year after the notice of exemption was published in the Gazette. (3) Despite subsections (1) and (2), a local government is not required to prepare a consolidation of the scheme if the local government resolves instead to prepare a new scheme in 15 substitution for that scheme. (4) Despite subsections (1) and (2), the Minister may at any time, by notice in the Gazette -- (a) direct the local government by which a local planning scheme was prepared to prepare, within the period 20 specified in the notice, a consolidation of the scheme; or (b) exempt a local government from compliance with those subsections if the scheme does not contain any provision for the zoning or classification of land. (5) If a consolidation is required under subsection (4)(a) before a 25 consolidation has been prepared under a paragraph of subsection (2), the consolidation is not required under that paragraph. (6) The Minister is to consult the local government before giving a direction under subsection (4)(a). page 60 Planning and Development Bill 2004 Local planning schemes Part 5 Review of local planning schemes Division 5 s. 89 89. Submissions on consolidated scheme (1) After preparing the consolidation the local government is to ensure that the consolidation is approved by the Commission and made available for inspection. 5 (2) When the consolidation has been approved by the Commission, the local government is to invite submissions from the public on the effectiveness of the scheme, the need for amendment of the scheme and the need for the making of a new scheme. 90. Report on scheme 10 (1) Not later than 6 months after preparing a consolidation of a local planning scheme, the local government is to make a report to the Minister on the operation of the scheme. (2) In its report the local government is to -- (a) include all submissions received under section 89; 15 (b) report and make recommendations on the submissions; and (c) report and make recommendations as to whether or not the scheme -- (i) is satisfactory in its existing form; 20 (ii) should be amended; (iii) should be repealed and a new scheme prepared in its place; or (iv) should be repealed. 91. Procedure where no change to scheme 25 (1) If -- (a) a report of a local government under section 90 recommends that a local planning scheme is satisfactory in its existing form and the Minister concurs; or page 61 Planning and Development Bill 2004 Part 5 Local planning schemes Division 5 Review of local planning schemes s. 92 (b) the Minister, after considering the report of the local government, advises the local government that the local planning scheme is satisfactory in its existing form, the local government is to cause the consolidation of the local 5 planning scheme prepared under section 88 to be published in the Gazette. (2) It is sufficient compliance with subsection (1) if a consolidation of a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local 10 planning scheme. (3) If the Minister considers that the publication of a consolidation of a local planning scheme under subsection (1) is unnecessary or inexpedient the Minister may by notice published in the Gazette declare that the scheme is satisfactory in its existing 15 form and exempt the local government from the requirement to publish the consolidation. 92. Procedure where amendments proposed (1) If -- (a) a report of a local government under section 90 20 recommends amendment of a local planning scheme and the Minister concurs; or (b) the Minister, after considering the report, advises the local government that amendment is recommended, the local government, within 3 months or such longer period as 25 the Minister may in writing agree from the date of the report or the Minister's advice as the case may be, is to amend the local planning scheme in accordance with this Part. page 62 Planning and Development Bill 2004 Local planning schemes Part 5 Review of local planning schemes Division 5 s. 93 (2) After the Minister has under section 87(2), approved the amendments prepared for the purposes of subsection (1), the local government is to -- (a) prepare a consolidation of the local planning scheme, 5 incorporating -- (i) all the amendments that have been made to the scheme and are of effect on the day on which the resolution to prepare the consolidation is made; and 10 (ii) the amendments prepared for the purposes of subsection (1) and approved by the Minister under section 87(2); and (b) publish the consolidation of the local planning scheme 15 in the Gazette. (3) It is sufficient compliance with subsection (2)(b) if a consolidation of a local planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the local planning scheme. 20 93. Effect of publication of consolidation (1) As from the publication of a consolidation of a local planning scheme under section 91 or 92 the consolidation of the local planning scheme -- (a) is to be judicially noticed by all tribunals, bodies and 25 persons; and (b) is taken to be a correct statement and representation of the local planning scheme as of effect on the day on which the resolution to prepare the consolidation was made and, in the case of a consolidation published under 30 section 92, including the amendments prepared for the purposes of subsection (1) of that section and approved by the Minister. page 63 Planning and Development Bill 2004 Part 5 Local planning schemes Division 5 Review of local planning schemes s. 94 (2) A reference in this or any other Act to a local planning scheme is to be read and construed as including a reference to a consolidation of a local planning scheme published under section 91 or 92. 5 94. Procedure where new scheme prepared following report If -- (a) a report of a local government under section 90 recommends that a local planning scheme should be repealed and a new scheme prepared in its place and the 10 Minister concurs; or (b) the Minister, after considering the report, advises the local government that the local planning scheme should be repealed and a new scheme prepared in its place, the new scheme is to be prepared by the local government and 15 made in accordance with this Part, within the period of 6 months or such longer period as the Minister may in writing agree from the date of the report or the date of the Minister's advice as the case may be. 95. Procedure where scheme repealed following report 20 If -- (a) a report of a local government under section 90 recommends that a local planning scheme should be repealed and not replaced and the Minister concurs; or (b) the Minister, after considering the report, advises the 25 local government that the local planning scheme should be repealed and not replaced, the local government is to prepare an instrument of repeal, and forward it to the Minister under section 74(b) within the period of 42 days or such longer period as the Minister may in writing 30 agree from the date of the report or the date of the Minister's advice as the case may be. page 64 Planning and Development Bill 2004 Local planning schemes Part 5 Crown land Division 6 s. 96 96. Consolidation of 2 or more local planning schemes Where 2 or more local planning schemes are consolidated, the provisions of the Division apply to those schemes as so consolidated with effect from the date on which they were last 5 published in the Gazette as a consolidation of a scheme with the approval of the Minister. Division 6 -- Crown land 97. Planning of town and suburban lands (1) If Crown land is to be sold, leased or disposed of, the 10 Commission may prepare a scheme in respect of the land. (2) The Commission may prepare a scheme in respect of the land with the general objects and provisions set out in section 69. (3) A scheme prepared under this section, if approved by the Minister and published in the Gazette, has the same effect as a 15 local planning scheme made and approved under this Part. (4) The provisions of this Act, other than Part 10, so far as consistent and applicable, apply to and in respect of a scheme prepared under this section, as if the Commission were the responsible authority. 20 (5) If -- (a) a scheme is prepared, approved and published under this section; and (b) Crown land the subject of the scheme is sold, leased or disposed of, 25 the Commission, with the approval of the Minister, may -- (c) suspend, vary, supplement, or supersede any of the provisions of the scheme; (d) agree with a local government to be jointly responsible with that local government, as the responsible authority 30 under and for the purposes of the scheme either with respect to all, or part, of the scheme; or page 65 Planning and Development Bill 2004 Part 5 Local planning schemes Division 6 Crown land s. 97 (e) agree with a local government that the local government is to be substituted as the responsible authority under and for the purposes of the scheme, either with respect to all, or part, of the scheme. 5 (6) After subsection (7) has been complied with in respect of a scheme to which subsection (5)(e) applies, the scheme is taken to be a local planning scheme prepared by the local government substituted as the responsible authority and this Act applies accordingly. 10 (7) Where the Commission exercises a power under subsection (5) and as a result a scheme is amended, the Minister is to cause notice of the amendment to be published in the Gazette. page 66 Planning and Development Bill 2004 Interim development orders Part 6 Regional interim development orders Division 1 s. 98 Part 6 -- Interim development orders Division 1 -- Regional interim development orders 98. Regional interim development orders (1) Subject to this Part, if -- 5 (a) the Commission is of the opinion that the development of land outside the metropolitan region and within a part of the State in respect of which the Commission has resolved under section 35 to prepare a region planning scheme might materially affect the preparation or 10 implementation of the region planning scheme; and (b) the Minister approves, the Commission may make such regional interim development orders as are necessary for regulating, restricting or prohibiting that development. 15 (2) A regional interim development order may be made by the Commission at any time -- (a) before the relevant procedures set out in Part 4 have been fully complied with in respect of the region planning scheme; and 20 (b) after the Commission has complied with subsection (3). (3) Before making a regional interim development order the Commission is to -- (a) inform each local government of a district which lies within or partly within the area to which the proposed 25 regional interim development order will apply of the proposal; (b) invite that local government to make submissions on the proposal within 28 days; and (c) provide the Minister with a copy of any submission 30 received under paragraph (b). page 67 Planning and Development Bill 2004 Part 6 Interim development orders Division 1 Regional interim development orders s. 99 99. Contents of regional interim development order (1) A regional interim development order is to specify the land affected by the regional development order. (2) A regional interim development order may -- 5 (a) require a person, before commencing to carry out any specified development within the regional order area, to obtain the written approval of the Commission; (b) regulate, restrict or prohibit any specified class of development within the regional order area; 10 (c) exempt from the operation of the order any development of a specified class within the regional order area; (d) provide that the approval of the Commission for the carrying out of any development referred to in the order may, if granted, be granted subject to such conditions as 15 the Commission considers necessary to impose, including, without limiting the generality of those conditions -- (i) a condition limiting the period during which that development may be carried out; and 20 (ii) a condition requiring the cessation of the development and removal of any structure or building erected under that approval at the expiry of the period so limited; (e) provide that the Commission may refuse to grant to an 25 applicant its approval of development of a specified class in a specified part of the regional order area; (f) subject to section 108, suspend, vary, supplement or supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local 30 Government (Miscellaneous Provisions) Act 1960 in the regional order area. page 68 Planning and Development Bill 2004 Interim development orders Part 6 Local interim development orders Division 2 s. 100 (3) In subsection (2) -- "specified" means specified in the regional interim development order concerned. 100. Consultation with local government on development 5 approval Before granting an application for approval of development referred to in section 99(2)(a), the Commission is to -- (a) refer that application to the local government of the district in which the relevant land lies; 10 (b) invite the local government to make submissions on the application within 42 days; and (c) have regard to any submission received under paragraph (b). 101. Restrictions on power to grant development approval 15 Despite section 129, nothing in a regional interim development order in force in respect of a regional order area empowers the Commission to grant an applicant approval of development if that development contravenes a provision of a local planning scheme in force in the regional order area. 20 Division 2 -- Local interim development orders 102. Local interim development orders (1) Pending the consideration by the Minister of a proposed local planning scheme for a district or part of a district situated outside the metropolitan region, the Minister may make such 25 local interim development orders as are necessary and in the public interest for regulating, restricting or prohibiting the development of any land within the district or such part of the district. (2) If a local planning scheme is already in effect in a district or part 30 of a district and it is proposed to make a further local planning scheme for that district or part of a district, the Minister is not to page 69 Planning and Development Bill 2004 Part 6 Interim development orders Division 2 Local interim development orders s. 103 make a local interim development order that has effect in that district or part of a district unless, in the opinion of the Minister, it is in the public interest to do so. 103. Contents of local interim development orders 5 (1) A local interim development order is to specify the land affected by the order. (2) A local interim development order may -- (a) require a person, before commencing to carry out any specified development within the local order area, to 10 obtain the written approval of the local government administering the order; (b) regulate, restrict or prohibit any specified class of development within the local order area; (c) exempt from the operation of the order any development 15 of a specified class within the local order area; (d) in the case of land to which the Heritage of Western Australia Act 1990 applies, require the local government administering the order before approving a development application -- 20 (i) to refer the application in question to the Heritage Council; (ii) not to proceed, without the consent of the Minister, with the application unless or until the advice of the Heritage Council has been 25 received; and (iii) to have regard to that advice; (e) provide that the approval of the local government for the carrying out of any development referred to in the order may, if granted, be granted subject to such conditions as 30 the local government considers necessary to impose, including, without limiting the generality of those conditions -- (i) a condition limiting the period during which that development may be carried out; and page 70 Planning and Development Bill 2004 Interim development orders Part 6 Provisions applying to regional and local interim development Division 3 orders s. 104 (ii) a condition requiring the cessation of the development and removal of any structure or building erected under that approval at the expiry of the period so limited; 5 (f) provide that the local government administering the order may refuse to grant to an applicant its approval of development of a specified class in a specified part of the local order area; (g) subject to section 108, suspend, vary, supplement or 10 supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 in the local order area. (3) In subsection (2) -- 15 "specified" means specified in the local interim development order concerned. Division 3 -- Provisions applying to regional and local interim development orders 104. Consultation with public authorities and utility services 20 providers Before making an interim development order that, in the opinion of the Commission or the local government, as the case requires, may affect the functions of a public authority or utility services provider, the Commission or the local government is 25 to -- (a) inform the public authority or utility services provider of the proposal; (b) invite that public authority or utility services provider to make submissions on the proposal within 28 days; and 30 (c) provide the Minister with a copy of any submission received under paragraph (b). page 71 Planning and Development Bill 2004 Part 6 Interim development orders Division 3 Provisions applying to regional and local interim development orders s. 105 105. Publication of summary of interim development order (1) On the making of a regional interim development order the Commission is to cause to be published once in the Gazette and 3 times in a daily newspaper circulating in the part of the State 5 to which the order applies a notice -- (a) containing a summary of the order; and (b) stating that copies of the order are available for inspection by any person free of charge at the offices of the Commission and of any local government within the 10 area to which the order applies. (2) At the same time or before acting under subsection (1), the Commission is to publish in the Gazette -- (a) a summary of the relevant resolution made under section 35(1); and 15 (b) a description of the part of the State to which the relevant proposed region planning scheme is to apply. (3) On the making of a local interim development order the local government in whose district the order applies is to cause to be published once in the Gazette and 3 times in a daily newspaper 20 circulating in that district a notice -- (a) containing a summary of the order; and (b) stating that copies of the order are available for inspection by any person free of charge at the offices of the Commission and of any local government within the 25 area to which the order applies. 106. Administration of interim development order (1) The Commission is to administer each regional interim development order. (2) The local government or local governments specified in a local 30 interim development order is or are to administer the local interim development order. page 72 Planning and Development Bill 2004 Interim development orders Part 6 Provisions applying to regional and local interim development Division 3 orders s. 107 107. Effect and duration of interim development order (1) Subject to subsection (2), an interim development order -- (a) comes into operation on the day of publication of the relevant notice in the Gazette under section 105; and 5 (b) has effect as if it were enacted by this Act. (2) An interim development order ceases to have effect in the regional order area or local order area to which it applies -- (a) when the relevant region planning scheme or local planning scheme, as the case requires, comes into 10 operation in respect of that area; (b) when the interim development order is revoked under section 110; or (c) on the expiry of 3 years from the day on which the interim development order first applied to that area, 15 whichever is the sooner. (3) Despite subsection (2) -- (a) the Commission may, by notice published in the Gazette before a regional interim development order ceases to have effect, extend its operation for a further period not 20 exceeding 12 months and may, if the Commission thinks fit, exercise that power of extension more than once; and (b) the Minister may, by notice published in the Gazette before a local interim development order ceases to have effect, extend its operation for a further period not 25 exceeding 12 months and may, if the Minister thinks fit, exercise that power of extension more than once. 108. Effect on continued use and permitted development Nothing in an interim development order prevents -- (a) the continued use of any land for the purpose for which 30 the land was lawfully being used; or page 73 Planning and Development Bill 2004 Part 6 Interim development orders Division 3 Provisions applying to regional and local interim development orders s. 109 (b) the carrying out of any development for which an approval or approvals, if any, required under this Act or any other Act authorising that development to be carried out, had been obtained and was or were current, 5 immediately before the coming into operation of the order. 109. Amendment of interim development order (1) The Commission may, with the approval of the Minister, at any time make an order amending a regional interim development order. 10 (2) The Minister may at any time make an order amending a local interim development order. (3) Sections 105(1) or (3) and 107(1) apply with any necessary modifications to such an order as if the order were an interim development order. 15 110. Revocation of interim development order (1) The Commission may, with the approval of the Minister, at any time by order published -- (a) once in the Gazette; and (b) 3 times in a daily newspaper circulating in the part of 20 the State to which the relevant regional interim development order applies, revoke a regional interim development order. (2) The Minister may at any time by order published -- (a) once in the Gazette; and 25 (b) 3 times in a daily newspaper circulating in the part of the district to which the relevant local interim development order applies, revoke a local interim development order. page 74 Planning and Development Bill 2004 Interim development orders Part 6 Provisions applying to regional and local interim development Division 3 orders s. 111 111. Non-conforming development by local government or public authority (1) If -- (a) a local government or public authority wishes to carry 5 out within a regional order area any work or undertaking that is not exempted from the operation of the relevant regional interim development order and which, in the opinion of the Commission, would not be in conformity with the proposed region planning scheme for the part of 10 the State in which the regional order area is situated; and (b) after consultation between the local government or public authority and the Commission, agreement is not reached concerning the coordination of that work or undertaking with the proposals to be included in that 15 proposed region planning scheme, the Commission may submit the matter to the Minister for determination by the Governor. (2) If -- (a) a local government or public authority wishes to carry 20 out within a local order area any work or undertaking that is not exempted from the operation of the relevant local interim development order and which, in the opinion of the local government administering the order, would not be in conformity with the proposed local 25 planning scheme for the district in which the local order area is situated; and (b) after consultation between the local government or public authority wishing to carry out the work or undertaking and the local government administering the 30 order, agreement is not reached concerning the coordination of that work or undertaking with the proposals to be included in that proposed region scheme, the local government may submit the matter to the Minister for determination by the Governor. page 75 Planning and Development Bill 2004 Part 6 Interim development orders Division 3 Provisions applying to regional and local interim development orders s. 111 (3) The Governor may, by order, in respect of a matter submitted under subsection (1) or (2) for determination -- (a) prohibit absolutely or for such period as the Governor thinks fit; or 5 (b) restrict, regulate or permit, the carrying out of the work or undertaking or any part of it subject to such conditions as the Governor specifies. (4) An order under subsection (3) has effect subject to any written law with which it is inconsistent. page 76 Planning and Development Bill 2004 Planning control areas Part 7 s. 112 Part 7 -- Planning control areas 112. Declaration of planning control areas (1) If the Commission considers that any land situated in a region to which a region planning scheme applies may be required for 5 one or more of the purposes specified in Schedule 6, the Commission may by notice published in the Gazette and with the approval of the Minister declare that land to be a planning control area. (2) The power in subsection (1) is not to be exercised in respect of 10 any land or waters in the management area of the Swan River Trust within the meaning of the Swan River Trust Act 1988. (3) If the Commission considers that this Part should apply to any land in the Swan Valley, before seeking approval of the declaration the Commission is to -- 15 (a) inform the Swan Valley Planning Committee and invite that Committee to make submissions on the matter within 42 days; and (b) provide the Minister with a copy of any submissions received from the Committee under paragraph (a). 20 (4) This Part and the operation of any approval of development granted under this Part have effect subject to section 78 of the Heritage of Western Australia Act 1990. (5) Where any land is comprised within an area to which the Commission considers that this section should apply and is land 25 to which the Heritage of Western Australia Act 1990 applies, the Commission is to satisfy the Minister before seeking approval to the declaration of that land as a planning control area that full disclosure has been made to, and consultations concluded with, the Heritage Council as to the likely effect of 30 the declaration as regards places to which that Act applies. page 77 Planning and Development Bill 2004 Part 7 Planning control areas s. 113 113. Declaration may be amended or revoked The Commission may by notice published in the Gazette and with the approval of the Minister amend or revoke a declaration made under section 112. 5 114. Duration of declaration A declaration made under section 112 remains in force until -- (a) the expiry of such period, not exceeding 5 years from the date on which the notice by which that declaration was so made was published in the Gazette, as is 10 specified in that notice; or (b) it is revoked under section 113, whichever is the sooner. 115. Applications for approval of development in planning control areas 15 (1) A person who wishes to commence and carry out development in a planning control area may apply to the local government in the district of which the planning control area is situated for approval of that development. (2) An applicant is to submit to the local government such plans 20 and other information as the local government may reasonably require. (3) The local government, within 30 days of receiving the application, is to forward the application, together with its recommendation, to the Commission for determination. 25 116. Commission may approve or refuse application (1) After receiving an application and recommendation forwarded to it under section 115(3), the Commission may -- (a) consult with any authority that in the circumstances it thinks appropriate; and page 78 Planning and Development Bill 2004 Planning control areas Part 7 s. 117 (b) having regard to -- (i) any relevant State planning policy; (ii) the purposes for which the land to which that application relates is zoned or reserved under a 5 region planning scheme; (iii) any special considerations relating to the nature of the planning control area concerned and of the development to which that application relates; and 10 (iv) the orderly and proper planning, and the preservation of the amenity, of the locality in which the land to which that application relates is situated, approve, subject to such conditions as it thinks fit, or 15 refuse to approve, that application. (2) The Commission is to give written notice to the applicant of its decision on the application. 117. Commission may revoke approval (1) If -- 20 (a) the Commission approves an application forwarded to it under section 115(3); and (b) the development concerned is carried out in a manner which is not in conformity with that approval, or any conditions subject to which that approval was given are 25 not complied with, the Commission may revoke that approval. (2) Subsection (1) does not affect the operation of a direction under section 214 or prevent proceedings for an offence against section 220 in respect of that carrying out or non-compliance 30 alleged to have been committed during the subsistence of that approval. page 79 Planning and Development Bill 2004 Part 7 Planning control areas s. 118 118. Effect of Part Nothing in this Part or section 220 affects -- (a) the continued use of any land in a planning control area for the purpose for which it was lawfully being used; or 5 (b) the continuation and completion of the development of any land in a planning control area, including the erection, construction, alteration or carrying out, as the case requires, of any building, excavation or other works on that land, which development was lawfully being 10 carried out, immediately before the declaration of the planning control area. page 80 Planning and Development Bill 2004 Improvement plans Part 8 s. 119 Part 8 -- Improvement plans 119. Commission may recommend improvement plan (1) The Commission may -- (a) certify in writing to the Minister that for the purpose of 5 advancing the planning, development and use of any land within a part of the State to which a region planning scheme applies -- (i) the land should be dealt with in all or any of the following ways, namely, planned, replanned, 10 designed, redesigned, consolidated, resubdivided, cleared, developed, reconstructed or rehabilitated; or (ii) provision should be made for the land to be used for such residential, commercial, industrial, 15 public, recreational, institutional, religious, charitable or other uses, buildings, works, improvements or facilities, or spaces for those purposes, as may be appropriate or necessary; and 20 (b) recommend to the Minister that the land should be so dealt with or used for that purpose and made the subject of an improvement plan. (2) The recommendation is to be accompanied by a copy of the improvement plan and such supporting maps and texts as the 25 Minister may require. (3) If the Minister accepts the recommendation, the Minister is to forward the recommendation to the Governor for acceptance. (4) An improvement plan comes into force on the day on which notice of the acceptance of the recommendation of the 30 Governor, and a summary of the improvement plan, is published in the Gazette. page 81 Planning and Development Bill 2004 Part 8 Improvement plans s. 120 (5) Section 195 applies in respect of the acquisition of land included in an improvement plan in force under this section. 120. Improvement plan may be amended or revoked (1) The Commission may -- 5 (a) amend an improvement plan by notice of amendment; or (b) revoke an improvement plan by notice of revocation. (2) Section 119 applies to a notice of amendment or revocation under subsection (1) as if the notice were a recommendation under that section and the amendment or revocation were an 10 improvement plan. 121. Commission may develop land included in improvement plan (1) For the purpose of advancing the development of land in accordance with an improvement plan the Commission with the 15 approval of the Governor may -- (a) construct, repair, rehabilitate or improve buildings, works, improvements or facilities on land acquired or held by it under this Act; (b) return, sell, lease, exchange or otherwise dispose of -- 20 (i) any buildings, works, improvements or facilities and the land appurtenant to the buildings, works, improvements or facilities; and (ii) any land acquired by the Commission under this Act, 25 to any person or public authority upon such terms and conditions as the Commission with the approval of the Governor thinks fit; (c) in respect of land included in an improvement plan but not acquired or held by it under this Act, enter into an 30 agreement with any owner of the land relating to -- (i) the planning, replanning, design, redesign, consolidation, resubdivision, clearing, page 82 Planning and Development Bill 2004 Improvement plans Part 8 s. 122 development, reconstruction or rehabilitation of the land; (ii) the construction, repair, rehabilitation or improvement of any buildings, works, services, 5 improvements or facilities on the land; (iii) the sale, purchase, exchange, surrender, vesting, allocation or other disposal of the land, the adjustment or alteration of the boundaries of the land, the pooling of the lands of several owners, 10 the adjustment of rights between owners of the land or other persons interested in the land whether by payments of money or transfers or exchanges of land or otherwise, the valuation of the land and the provision of land for any public 15 open space, public work or any other public purpose; (iv) the payment, satisfaction or recovery of costs incurred in implementing the agreement; and (v) such other acts, matters or things as are or may 20 be necessary to give effect to the improvement plan; and (d) do any act, matter or thing for the purpose of carrying out any agreement entered into under paragraph (c). 25 (2) The Commission is to notify in the Gazette particulars of any return, sale, lease, exchange or disposal to any person referred to in subsection (1)(b) within one month of the Governor's approval. 122. Nothing in this Part derogates from other powers 30 Nothing in this Part is to be construed as taking away or in any way derogating from or diminishing any power otherwise conferred by this or any other Act upon the Commission or any other authority, body or person. page 83 Planning and Development Bill 2004 Part 9 Relationship between region planning schemes, local planning schemes, planning control provisions and written laws s. 123 Part 9 -- Relationship between region planning schemes, local planning schemes, planning control provisions and written laws 123. Local planning schemes and local laws to be consistent with 5 region planning scheme (1) A local planning scheme is not to be approved by the Minister under this Act unless the provisions of the local planning scheme are in accordance with and consistent with each relevant region planning scheme. 10 (2) Local laws which if made would affect or be likely to affect a region planning scheme are not to be made by a local government unless the provisions of the local laws are in accordance with and consistent with each relevant region planning scheme. 15 124. Effect of region planning scheme on local planning scheme (1) If a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails over the local planning scheme to the extent of the inconsistency. (2) If a region planning scheme is inconsistent with a local planning 20 scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the region planning scheme has effect, resolve to prepare -- (a) a local planning scheme which is consistent with the 25 region planning scheme; or (b) an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme, and which does not contain or removes, as the case requires, any 30 provision which would be likely to impede the implementation of the region planning scheme. page 84 Planning and Development Bill 2004 Relationship between region planning schemes, local planning Part 9 schemes, planning control provisions and written laws s. 125 (3) If a region planning scheme is amended and is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the amendment to the region 5 planning scheme has effect, resolve to prepare in relation to the land -- (a) a local planning scheme which is consistent with the region planning scheme; or (b) an amendment to the local planning scheme which 10 renders the local planning scheme consistent with the region planning scheme, and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme. 15 (4) In preparing the local planning scheme or amendment the local government is to have due regard to the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme as set out in the statement deposited under section 43(1). 20 (5) The local government is to, within such reasonable time after the passing of the resolution as is directed in writing by the Minister, forward to the Minister for approval under section 87 the local planning scheme or amendment it has prepared. 125. Minister may direct local government to amend local 25 planning scheme for consistency (1) The Minister may, by written notice, direct a local government to prepare a local planning scheme or to amend a local planning scheme, in the time and manner set out in the notice, to ensure consistency with a region planning scheme, a proposed region 30 planning scheme or a proposed amendment to a region planning scheme. page 85 Planning and Development Bill 2004 Part 9 Relationship between region planning schemes, local planning schemes, planning control provisions and written laws s. 126 (2) A local government to whom a notice is given under subsection (1) is to, within the time set out in the notice -- (a) resolve to prepare a local planning scheme, or an amendment to a local planning scheme, in accordance 5 with the notice; (b) prepare and advertise the local planning scheme or amendment in accordance with this Part; and (c) forward to the Minister for approval under section 87 the local planning scheme or amendment prepared by it. 10 (3) If the Minister so directs, the advertisement of the local planning scheme or amendment to the local planning scheme is to be published together with the notification of the relevant region planning scheme or amendment under section 43 or 58. 126. Zoning amended by region planning scheme 15 (1) If a region planning scheme delineates land comprised in a local planning scheme as a reserve for any public purpose, then the local planning scheme, in so far as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended to such extent (if any) as is necessary 20 to give effect to the reservation under the region planning scheme. (2) Notice of any amendment effected under subsection (1) is to be published in the Gazette. (3) If -- 25 (a) it is proposed that a region planning scheme delineate land comprised in a local planning scheme as land in an Urban zone; (b) the local government of the district in which the land directly affected by the proposed region planning 30 scheme zoning is situated requests the Commission to amend the local planning scheme under this subsection to change the zoning of that land under the local planning scheme, and the Commission agrees; and page 86 Planning and Development Bill 2004 Relationship between region planning schemes, local planning Part 9 schemes, planning control provisions and written laws s. 127 (c) notice of the amendment, as made by the Commission, is published in the Gazette on or after the coming into operation of the region planning scheme, then the local planning scheme, in so far as it operates in 5 relation to that land, is, by force of this section and without any further action under this Act, amended as set out in that notice on the date of publication of the notice. 127. Minister may direct local government to modify proposed scheme or amendment 10 (1) The Minister may, before approving a proposed local planning scheme, or amendment to a scheme, prepared by a local government under section 124(2) or 125, direct the local government to -- (a) modify the proposed local planning scheme or 15 amendment in the manner specified in the direction to ensure that the proposed local planning scheme or amendment -- (i) is consistent with the region planning scheme; and 20 (ii) will not impede the implementation of the region planning scheme; and (b) to forward the proposed local planning scheme or amendment as so modified to the Minister for approval 25 under section 87. (2) A local government is to comply with a direction under subsection (1). 128. Minister may direct local government to adopt scheme or amendment 30 (1) If a local government does not comply with -- (a) section 124(2); (b) section 125; or page 87 Planning and Development Bill 2004 Part 9 Relationship between region planning schemes, local planning schemes, planning control provisions and written laws s. 128 (c) not later than 60 days after the giving of the direction concerned, section 127(2), the Minister may -- (d) cause the relevant local planning scheme or amendment 5 to be prepared or modified as the case requires and forwarded to the local government; and (e) direct the local government to adopt that local planning scheme or amendment as if it were a local planning scheme proposed by owners of land with respect to 10 which the local government might itself have prepared a scheme. (2) A local government is to comply with a direction under subsection (1)(e). (3) If a local government to which a direction has been given under 15 subsection (1)(e) does not comply with the direction within 60 days after the relevant local planning scheme or amendment was forwarded to it, the Minister may approve of the local planning scheme or amendment and cause it to be published in the Gazette in accordance with Part 5. 20 (4) A local planning scheme, or an amendment to an existing local planning scheme, as the case requires, published in the Gazette under subsection (3) takes effect from the date of publication and has effect as if it were made under Part 5. (5) All costs, charges and expenses incurred by the Minister in the 25 exercise of any powers conferred on the Minister by this section may be recovered by the Minister from the local government concerned as a debt due to the Crown or may be deducted from any moneys payable by the Crown to the local government. page 88 Planning and Development Bill 2004 Relationship between region planning schemes, local planning Part 9 schemes, planning control provisions and written laws s. 129 129. Effect of interim development order on local planning scheme and local laws (1) If there is an inconsistency between -- (a) a local planning scheme in force in a regional order area, 5 or a local law in force in a regional order area under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 or any written law for which the latter Act is in substitution; and (b) a regional interim development order in force in respect 10 of the regional order area, the regional interim development order prevails over that local planning scheme or local law to the extent of the inconsistency. (2) If there is an inconsistency between -- (a) a local planning scheme in force in a local order area, or 15 a local law in force in a local order area under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 or any written law for which the latter Act is in substitution; and (b) a local interim development order in force in respect of 20 the local order area, the local interim development order prevails over that local planning scheme or local law to the extent of the inconsistency. 130. Planning control area provisions prevail The provisions of Part 7 prevail over -- 25 (a) every other provision of this Act; (b) any region planning scheme; and (c) any local planning scheme, to the extent of any inconsistency with those provisions and schemes. page 89 Planning and Development Bill 2004 Part 9 Relationship between region planning schemes, local planning schemes, planning control provisions and written laws s. 131 131. Compliance with local government regulations (1) If there is any inconsistency between a local planning scheme and a regulation made under section 433A of the Local Government (Miscellaneous Provisions) Act 1960, the local 5 planning scheme prevails to the extent of the inconsistency. (2) In the exercise of any power conferred on it by a local planning scheme a local government is not obliged to have regard to any regulations made under section 433A of the Local Government (Miscellaneous Provisions) Act 1960. 10 132. Governor may suspend operation of certain written laws (1) If the carrying out of any provision of a planning scheme would conflict with any provisions, limitations, or conditions of or prescribed by any Act, the responsible authority may apply to the Governor for an order modifying or suspending the 15 provisions of that Act, so far as may be necessary to enable effect to be given to the planning scheme. (2) Upon application under subsection (1) the Governor may, in respect of that planning scheme but not otherwise, make an order accordingly for the suspension or modification of the 20 provisions or any of them, subject to such conditions and limitations as the Governor thinks fit. (3) An order under subsection (2) does not take effect unless and until it has been approved by a resolution of both Houses of Parliament. page 90 Planning and Development Bill 2004 Subdivision and development control Part 10 Application Division 1 s. 133 Part 10 -- Subdivision and development control Division 1 -- Application 133. Application to Crown land (1) Except as provided in subsection (2) and section 168, this Part 5 does not apply to Crown land. (2) If the Minister to whom the Governor has for the time being committed the administration of the Land Administration Act 1997 intends to subdivide and develop any Crown land under section 27(1) of that Act for the purpose of selling the 10 Crown land under section 74 of that Act, section 134, Division 2 (except section 136), sections 150, 151, 152 and 157, Division 4 and section 167 apply to that Crown land for the purposes of section 27 of the Land Administration Act 1997 as if that Crown land were held in freehold. 15 134. Application, and effect, of other written laws (1) Sections 135 and 136 are subject to section 68 of the Environmental Protection Act 1986 and to section 58(6) of the Contaminated Sites Act 2003. (2) Sections 135 and 136 do not apply to -- 20 (a) the grant of, or to the transfer of or other dealing with or in, a mining tenement within the meaning of the Mining Act 1904 or the Mining Act 1978 or a portion of such a mining tenement or any shares in the mining tenement or portion; 25 (b) the conferral of rights under section 34 of the Dampier to Bunbury Pipeline Act 1997; or (c) the issue of a distribution licence under Part 2A of the Energy Coordination Act 1994. (3) Where an application is made to the Commission for approval 30 under section 135 or 136 in relation to land in the Swan Valley, unless subsection (8) applies, the Commission is to give full page 91 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 2 Approval for subdivision and certain transactions s. 135 particulars of the application to the Swan Valley Planning Committee. (4) The Swan Valley Planning Committee, within 42 days after the day on which it receives particulars of an application or within 5 such longer period as the Commission allows, is to give to the Commission its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject. (5) If the Swan Valley Planning Committee fails to give its advice 10 within the time allowed under subsection (4), it is taken to have no advice to give on the application. (6) The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee's advice in whole or in part in determining the application. 15 (7) Subject to any approval under subsection (6) the Commission is to determine the application in accordance with the advice of the Swan Valley Planning Committee. (8) The Swan Valley Planning Committee may determine that any particular class or description of applications under section 135 20 or 136 need not be referred to the Committee for advice under this section and is to notify the Commission of any such determination. Division 2 -- Approval for subdivision and certain transactions 135. Approval required for subdivision 25 (1) A person is not to -- (a) subdivide any lot; (b) amalgamate any lot with any other lot, whether within the same district or otherwise; or (c) lay out, grant or convey a road, 30 without the approval of the Commission. page 92 Planning and Development Bill 2004 Subdivision and development control Part 10 Approval for subdivision and certain transactions Division 2 s. 136 (2) A person who contravenes subsection (1) commits an offence. (3) In this section -- "road" has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land 5 Act 1893 or within the meaning of the Land Administration Act 1997 section 3(1). 136. Approval required for certain transactions where land not dealt with as a lot or lots (1) Subject to sections 139 and 140 a person is not to -- 10 (a) lease or grant a licence to use or occupy land for any term exceeding 20 years, including any option to extend or renew the term or period; (b) lease and grant a licence to use or occupy land for terms in the aggregate exceeding 20 years, including any 15 option to renew or extend the terms or periods; (c) sell or agree to sell land; or (d) grant any option of purchase of land, without the approval of the Commission unless the land is dealt with by way of such lease, licence, agreement or option of 20 purchase as a lot or lots. (2) A person who contravenes subsection (1) commits an offence. (3) In this section -- "land", in relation to the leasing or the granting of a licence to use or occupy or, where applicable, the leasing and the 25 granting of such a licence, does not include the whole or a portion of a building if -- (a) the building was constructed in accordance with a building licence granted by a local government under section 374 of the Local Government (Miscellaneous 30 Provisions) Act 1960 or under an Act repealed by that Act, or a building licence to construct the building is in force under that section; and page 93 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 2 Approval for subdivision and certain transactions s. 137 (b) subject to subsection (4), the leasing or the granting of a licence does not relate to any land other than that building or portion; "licence to use or occupy" does not include an easement. 5 (4) A reference in the definition of "land" in subsection (3) to the whole or a portion of a building includes a reference to any area outside that whole or portion, which area is -- (a) the subject of the same lease or licence to use or occupy as that whole or portion or of a lease or licence to use or 10 occupy entered into or granted by the lessor of, or grantor of a licence to use or occupy, that whole or portion; and (b) used for the purpose of ingress to or egress from that whole or portion, advertising, parking vehicles, storing 15 goods, loading or unloading goods or passengers or for any other purpose necessary or desirable for the convenient occupation of that whole or portion. 137. Applications in respect of heritage land (1) This section applies to land to which section 78 of the Heritage 20 of Western Australia Act 1990 applies. (2) The Commission is not to grant an application for its approval under section 135 or 136 in respect of land to which this section applies unless -- (a) the requirements of section 78(1) and (4) of the Heritage 25 of Western Australia Act 1990 have been observed; and (b) regard has been had to any advice received from the Heritage Council. page 94 Planning and Development Bill 2004 Subdivision and development control Part 10 Approval for subdivision and certain transactions Division 2 s. 138 (3) If section 78(2)(a) of the Heritage of Western Australia Act 1990 applies, the holder of an approval given by the Commission under section 135 or 136 in respect of land to which this section applies is not to give effect to that 5 approval -- (a) during such time as the operation of the approval is suspended under section 78 of the Heritage of Western Australia Act 1990; or (b) otherwise than in accordance with section 78(2)(b) and 10 (c) of the Heritage of Western Australia Act 1990. (4) In relation to any place which is entered in the Register maintained by the Heritage Council under the Heritage of Western Australia Act 1990, any approval given by the Commission under section 135 or 136 in respect of land to 15 which this section applies is taken to be revoked under section 78(3) of the Heritage of Western Australia Act 1990. 138. Approval of Commission (1) The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before 20 the approval becomes effective. (2) Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts 25 with the provisions of a local planning scheme. (3) The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if -- (a) the local planning scheme was not first published, or a 30 consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; page 95 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 2 Approval for subdivision and certain transactions s. 139 (b) the approval is consistent with a region planning scheme that deals with substantially the same matter; (c) in the opinion of the Commission -- (i) the conflict is of a minor nature; or 5 (ii) the approval is consistent with the general intent of the local planning scheme; (d) the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict; 10 (e) in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection or recommendation under that 15 section; or (f) the approval is given in circumstances set out in the regulations. (4) Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions 20 of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration. 139. Approved classes of lease or licence (1) A person may without the approval of the Commission lease or 25 grant a licence to use or occupy land for a term of any duration and otherwise than as a lot or lots if that lease or licence -- (a) belongs to a class of lease or licence for the time being approved under subsection (3) in respect of the person; and 30 (b) complies with such conditions as are imposed under subsection (3) in respect of that person. page 96 Planning and Development Bill 2004 Subdivision and development control Part 10 Approval for subdivision and certain transactions Division 2 s. 139 (2) A person may apply to the Commission in writing for a class of lease or licence to use or occupy land to be approved under subsection (3) in respect of that person. (3) On receiving an application made under subsection (2) the 5 Commission may, having regard to -- (a) the nature of the interest proposed to be granted under leases or licences of the class concerned; (b) the classification or zoning of the land to which leases or licences of the class concerned will relate; 10 (c) the proposed terms of leases or licences of the class concerned, whether for the lives of the proposed lessees or licensees or for fixed periods; (d) the anticipated number or frequency of leases or licences of the class concerned; and 15 (e) such matters other than those referred to in paragraphs (a), (b), (c) and (d) as the Commission considers relevant, approve the class of lease or licence concerned in respect of the applicant for the purposes of subsection (1), subject to such 20 conditions as the Commission thinks fit to impose in respect of that approval, or refuse to approve that class. (4) The Commission may at any time revoke or amend an approval given under subsection (3) by notice in writing of that revocation or amendment served on the person in respect of 25 whom or which that approval was given. page 97 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 2 Approval for subdivision and certain transactions s. 140 140. Saving of certain agreements (1) Where an agreement to sell or grant an option to purchase, or to lease or grant or lease and grant a licence to use or occupy any portion of a lot has been entered into without the approval of the 5 Commission having been first obtained as required under this Division, that agreement is taken not to have been entered into in contravention of this Division if -- (a) the agreement is entered into subject to the approval of the Commission being obtained; and 10 (b) an application for the approval of the Commission is made within a period of 3 months after the date of the agreement. (2) Nothing in this Division renders the agreement illegal or void by reason only that the agreement was entered into before the 15 approval of the Commission was obtained. (3) Without prejudice to the operation of section 141, the agreement referred to in subsection (1) has no effect, unless and until the Commission gives its approval -- (a) within a period of 6 months after the date of the 20 agreement or within such further period as is stipulated in that agreement; or (b) within such further period as is stipulated in a subsequent agreement in writing made -- (i) by all the parties to the first-mentioned 25 agreement; or (ii) when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party. page 98 Planning and Development Bill 2004 Subdivision and development control Part 10 Approval for subdivision and certain transactions Division 2 s. 141 141. Refund where transaction cannot be completed Where, after payment of consideration for any transaction relating to any land, it is found that the transaction cannot be completed -- 5 (a) within a period of 6 months after the date of entering into the transaction or within such further period as is stipulated in the transaction; or (b) within such further period as is stipulated in a subsequent agreement in writing made -- 10 (i) by all the parties to the transaction; or (ii) when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party, 15 because the land cannot be dealt with as a lot or lots, the person who paid the consideration is entitled to a refund of the consideration from the person to whom it was paid. 142. Objections and recommendations (1) When, in the opinion of the Commission, a plan of subdivision 20 may affect the functions of a local government, a public authority, or a utility services provider, the Commission is to forward the plan or a copy of the plan to that local government, public authority or utility services provider for objections and recommendations. 25 (2) A local government, public body or utility services provider receiving such a plan or copy is to, within 42 days of receipt of the plan or copy or within such longer period as the Commission allows, forward it to the Commission with -- (a) a memorandum in writing containing any objections to, 30 or recommendations in respect of, the whole or part of that plan; and page 99 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 2 Approval for subdivision and certain transactions s. 143 (b) in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme (within the meaning of the EP Act) applies, advice of any relevant environmental condition 5 to which the assessed scheme is subject. (3) If a local government, public authority or utility services provider does not forward a memorandum within the time allowed under subsection (2), the Commission may determine that it is taken to have no objections or recommendations to 10 make or advice to give. 143. How Commission is to deal with plan of subdivision (1) After considering any objections or recommendations contained in a memorandum forwarded to the Commission under section 142, and any advice of a relevant environmental 15 condition forwarded to it under that section, the Commission is to -- (a) approve the plan of subdivision; (b) refuse to approve the plan of subdivision; or (c) approve the plan of subdivision and require the applicant 20 for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission. (2) The Commission is to try to deal with the plan of subdivision in 25 one of the ways mentioned in subsection (1) within the period of 90 days after the day on which the plan was submitted to the Commission for approval or within such longer period after that day as may be agreed in writing between the Commission and the applicant for approval. page 100 Planning and Development Bill 2004 Subdivision and development control Part 10 Approval for subdivision and certain transactions Division 2 s. 144 144. Reconsideration of refusal to approve plan of subdivision (1) If the Commission under section 143 refuses to approve a plan of subdivision and the applicant for approval concerned is dissatisfied with the refusal, that applicant may within 28 days 5 of being notified of the refusal request in writing the Commission to reconsider the refusal. (2) On receiving a request under subsection (1), the Commission, by notice in writing served on the person who made that request, may -- 10 (a) approve the plan of subdivision; (b) again refuse to approve the plan of subdivision; or (c) approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of 15 survey will be endorsed with the approval of the Commission. 145. Endorsement of approval upon diagram or plan of survey of subdivision (1) A person to whom approval of a plan of subdivision has been 20 given may, within the prescribed period -- (a) submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and (b) request the Commission to approve the diagram or plan 25 of survey of the subdivision. (2) In subsection (1) -- "prescribed period" means -- (a) in relation to a plan of subdivision creating more than 5 lots, the period of 4 years after the Commission 30 approved the plan of subdivision; and (b) in any other case, the period of 3 years after the Commission approved the plan of subdivision. page 101 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 2 Approval for subdivision and certain transactions s. 146 (3) If the Commission is satisfied that -- (a) the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and (b) if that approval was given subject to conditions, the 5 conditions have been complied with or will be complied with at the time a certificate of title is created or registered, the Commission is to endorse its approval on the diagram or plan of survey. 10 (4) The Commission is to try to deal with the request under subsection (1)(b) within the period of 30 days after the day on which the request is made to the Commission or within such longer period after that day as may be agreed in writing between the Commission and the person making the request. 15 (5) If, at the expiration of the period referred to in subsection (1), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect and the diagram or plan of survey cannot be submitted to the Commission under this 20 section. 146. No certificate of title for subdivided land without endorsement of Commission approval (1) The Registrar of Titles is not to create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of 25 a plan of subdivision unless a diagram or plan of survey of the subdivision of that land has been endorsed with the approval of the Commission and -- (a) in the case of a diagram or plan of survey endorsed with the approval of the Commission before the coming into 30 operation of this section, the title application was lodged with the Registrar of Titles before, or is lodged with the Registrar of Titles within 5 years after, the coming into operation of this section; page 102 Planning and Development Bill 2004 Subdivision and development control Part 10 Approval for subdivision and certain transactions Division 2 s. 147 (b) in the case of a diagram or plan of survey endorsed with the approval of the Commission on or after the coming into operation of this section, the diagram or plan of survey has been endorsed with the approval of the 5 Commission within the 24 months preceding the lodging of a title application with the Registrar of Titles; and (c) any conditions as to the registration or recording or continued registration or recording of an encumbrance or other document on or before the creation or 10 registration of a certificate of title that are noted on the diagram or plan of survey have been complied with, or will be complied with at the time the certificate of title is created or registered. (2) In subsection (1)(a) and (b) -- 15 "title application", in relation to a diagram or plan of survey, means an application for new titles to be created and registered for land the subject of the diagram or plan of survey. (3) A plan containing one lot only is deemed a diagram or plan of 20 survey of a subdivision provided that it is a portion of land comprised in -- (a) a certificate of title; (b) a registered conveyance; (c) a Crown grant; or 25 (d) a lot on a plan deposited with the TLA Department. 147. Approval required for certain transfers and other dealings (1) The Registrar of Titles is not to register a transfer, conveyance, lease or mortgage of any land unless -- (a) it has first been approved in writing by the Commission; 30 (b) the land comprises the whole of one or more lots, or the land comprises part of a lot included in a diagram or plan of survey of subdivision that has been approved by the Commission; or page 103 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 3 Conditions of subdivision s. 148 (c) in the case of a lease, the lease does not contain or purport to contain an option to purchase land other than the whole of one or more lots and -- (i) the term is not more than 20 years, including any 5 option to extend or renew the term; (ii) section 136(1) does not apply to the lease by virtue of the definition of "land" in section 136; or (iii) the lease is a lease which may be entered into 10 without the approval of the Commission by virtue of section 139(1). (2) The Registrar of Titles is not to create and register in the name of a registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots, unless the 15 application from the registered proprietor for the certificate of title has been endorsed with the approval of the Commission. Division 3 -- Conditions of subdivision 148. Conditions as to development Without limiting section 143, the Commission may impose a 20 condition under that section that requires -- (a) development to be integrated with the subdivision of the lot as specified by the Commission where, in the opinion of the Commission, such integration is necessary because of the size of the lots and potential impact on 25 the amenity of the locality; and (b) development approval for building on the lot to be granted before the diagram or plan of survey of the subdivision will be endorsed with the approval of the Commission. page 104 Planning and Development Bill 2004 Subdivision and development control Part 10 Conditions of subdivision Division 3 s. 149 149. Conditions on rural land (tied lots) (1) In this section -- "rural land" means land zoned for agricultural or rural use under a local planning scheme. 5 (2) Without limiting section 143, the Commission may approve a plan of subdivision in respect of rural land subject to conditions imposed under that section that require -- (a) a restrictive covenant to be created and made binding under section 129BA of the Transfer of Land Act 1893 10 so that no dwelling may be constructed on a specified lot to be created by the subdivision; and (b) the lot to which the restrictive covenant is to apply (the "tied lot") to be -- (i) owned by a person who is the owner of another 15 specified lot (the "principal lot"); and (ii) used for agricultural purposes together with the principal lot. (3) The applicant is to ensure that any diagram or plan of survey for a subdivision referred to in subsection (2) includes a notation 20 that the approval of the Commission is subject to the conditions referred to in that subsection. (4) The Commission is to provide the Registrar of Titles with any further information requested by the Registrar of Titles, in the form, if any, specified in the request. 25 (5) When the Registrar of Titles creates or registers a certificate of title under the Transfer of Land Act 1893 for a tied lot, the Registrar of Titles is to endorse or note -- (a) the title of the tied lot to give a person searching the title to that land notice that it is a tied lot; and 30 (b) the title of the principal lot to give a person searching the title to the land notice that there is a tied lot in relation to the principal lot. page 105 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 3 Conditions of subdivision s. 149 (6) The Registrar of Titles is not to register a transfer, conveyance, lease or mortgage of a tied lot or a principal lot unless -- (a) the transfer, conveyance, lease or mortgage is endorsed with the approval of the Commission; or 5 (b) the principal lot is transferred, conveyed, leased or mortgaged together with the tied lot in one and the same transaction. (7) A person who -- (a) contravenes; or 10 (b) directly or indirectly, enters into a transaction relating to land for the purpose of avoiding, a condition referred to in subsection (2) commits an offence. (8) In any proceedings for an offence under subsection (7), a certificate of the Minister certifying that the purpose of the 15 transaction in question is to avoid a condition referred to in subsection (2) and set out in that certificate is prima facie evidence of that purpose. (9) Subsection (7) does not apply to a transaction approved by the Commission. 20 (10) Regulations made for the purposes of this section may provide for -- (a) the rights, powers and privileges given to, and duties imposed on, a specified person or authority where a condition referred to in subsection (2) is imposed; 25 (b) the removal or modification of a restrictive covenant created pursuant to a condition referred to in subsection (2); (c) the circumstances in which the Commission will approve the substitution of a principal lot or a transfer, 30 conveyance, lease or mortgage of a tied lot or a principal lot; (d) the procedure for the approval; page 106 Planning and Development Bill 2004 Subdivision and development control Part 10 Conditions of subdivision Division 3 s. 150 (e) the certification of relevant facts in relation to the approval; and (f) any other matter necessary or convenient to be prescribed for giving effect to the purposes of this 5 section. 150. Conditions on road access (1) Without limiting section 143, the Commission may impose a condition under that section that access to and from a portion of land shown on a plan or diagram of survey relating to the 10 subdivision to a road abutting the portion of land is to be restricted or prohibited as set out in the condition and in accordance with the regulations. (2) A condition referred to in subsection (1) is to specify a covenantee. 15 (3) Where -- (a) a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 is received at the TLA Department; and (b) it is shown on the plan or diagram that access to and 20 from any portion of land shown on the plan or diagram to and from a road abutting the portion of land is subject to or intended to be subject to a restriction or prohibition as set out in a condition imposed by the Commission, the land becomes subject to a covenant so restricting or 25 prohibiting that access -- (c) in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and (d) in any other case, at the time the new certificate, or if 30 more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893. page 107 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 3 Conditions of subdivision s. 151 (4) It is sufficient description for the purposes of subsection (3)(b) if reference is made on the plan or diagram to this section and regulations made for the purposes of this section. 151. Reconsideration of conditions 5 (1) If the Commission under section 143 imposes conditions and the applicant concerned is dissatisfied with any such condition, that applicant may within 28 days of being notified of that condition request in writing the Commission to reconsider that condition. 10 (2) On receiving a request under subsection (1), the Commission may by notice in writing served on the person who made that request -- (a) alter or revoke the condition to which that request relates; or 15 (b) confirm the condition. 152. Certain land to vest in the Crown (1) If the Commission has approved a subdivision of land subject to a condition that one or more portions of land shown on a diagram or plan of survey relating to the subdivision or a plan 20 under the Strata Titles Act 1985 are to vest in the Crown for any one or more of the following purposes -- (a) conservation or protection of the environment; (b) an artificial waterway; (c) a pedestrian accessway; 25 (d) a right-of-way; (e) a reserve for water supply, sewerage, drainage, foreshore management, waterway management or recreation; (f) a public purpose specified in the condition and related to 30 the subdivision, page 108 Planning and Development Bill 2004 Subdivision and development control Part 10 Conditions of subdivision Division 3 s. 152 then, subject to the encumbrances referred to in subsection (5), the land subject to the condition vests in the Crown by force of this section without any conveyance, transfer or assignment or the payment of any fee. 5 (2) Land vested under subsection (1) is vested -- (a) in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and (b) in any other case, at the time the new certificate, or if 10 more than one, all the new certificates, for the land the subject of the diagram or plan of survey, has or have been registered under the Transfer of Land Act 1893. (3) Land vested under subsection (1) -- (a) is Crown land; 15 (b) does not form part of a parcel comprised in a plan that is registered under the Strata Titles Act 1985; (c) is taken to be reserved under section 41 of the Land Administration Act 1997 for the purpose set out in the condition; and 20 (d) may be dealt with in accordance with that Act. (4) The Registrar of Titles is to do all things necessary to give effect to this section. (5) Land vested under this section is to be vested subject to -- (a) any easement on that land created for the purposes of the 25 subdivision, shown on the diagram or plan of survey and referred to in section 167; (b) any easement on that land created under Part IVA of the Transfer of Land Act 1893 for the purposes of the subdivision and shown on the diagram or plan of survey; 30 (c) any existing encumbrance specified in a direction of the Minister responsible for the administration of the Land Administration Act 1997, or a person authorised in page 109 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 3 Conditions of subdivision s. 153 writing by that Minister for the purposes of this section, lodged with the Registrar of Titles on or before the vesting; and (d) any encumbrance prescribed, or of a class prescribed, by 5 the regulations. 153. When owner may pay money in lieu of land being set aside for open space (1) If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in 10 the Crown for parks, recreation grounds or open spaces generally and -- (a) the Commission, after consulation with the local government in whose district the portion is situated, so requires; or 15 (b) the Commission, the local government in whose district the portion is situated and the owner of the land so agree, the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of 20 the portion. (2) The Commission is not to impose a requirement referred to in subsection (1)(a) in respect of a plan of subdivision that creates less than 3 lots. 154. How money received in lieu of open space is to be dealt with 25 (1) All money received by a local government under section 153 is to be paid into a separate account of the trust fund of the local government established under section 6.9 of the Local Government Act 1995. page 110 Planning and Development Bill 2004 Subdivision and development control Part 10 Conditions of subdivision Division 3 s. 154 (2) The money is to be applied -- (a) for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of 5 subdivision referred to in section 153 is situated; (b) in repaying any loans raised by the local government for the purchase of any such land; (c) with the approval of the Minister, for the improvement or development as parks, recreation grounds or open 10 spaces generally of any land in that locality vested in or administered by the local government for any of those purposes; or (d) with the approval of the Commission, in reimbursing an owner (the "first owner") of land included in a joint 15 subdivision agreement for land that has been set aside and vested for parks, recreation grounds or open space where -- (i) the first owner set aside a greater proportion of land than another owner (the "second owner"); 20 and (ii) as a consequence, the local government and the Commission approved of the second owner paying to the local government a sum in lieu of land being set aside for that purpose and that 25 sum, or the relevant proportion of that sum, being reimbursed to the first owner for the excess proportion of land set aside by the first owner. (3) If interest is earned from the investment of moneys held under subsection (1), that money is to be applied for a purpose set out 30 in subsection (2). page 111 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 3 Conditions of subdivision s. 155 155. How value of portion is determined (1) In this section -- "licensed valuer" means -- (a) a licensed valuer within the meaning of the Land 5 Valuers Licensing Act 1978; or (b) the Valuer-General, but nothing in subsection (3)(a) or in this definition is to be construed as obliging the Valuer-General to undertake a valuation for the purposes of this section; 10 "market value of land" means the capital sum which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require. 15 (2) For the purposes of section 153, the value of the portion is to be such percentage of the market value of the land of which the portion forms part as the area of the portion bears to the area of that land. (3) For the purposes of subsection (2), the market value of land -- 20 (a) is to be determined, at the cost of the owner of the land, by a licensed valuer agreed upon by the parties or, failing agreement, appointed by the local government; and (b) is to be so determined -- 25 (i) as at the date on which the valuation is made; (ii) on the basis that there are no buildings, fences or other improvements of a like nature on the land; (iii) on the assumption that any rezoning necessary for the purpose of the subdivision has come into 30 force; and (iv) taking into account the added value of all other improvements on or appurtenant to the land. page 112 Planning and Development Bill 2004 Subdivision and development control Part 10 Conditions of subdivision Division 3 s. 156 (4) The licensed valuer is to give the valuation to the owner of the land and the local government. (5) If within 90 days, or such longer time as is agreed in writing by the local government, of the date on which the valuation is 5 made the owner of the land has not -- (a) paid the amount of the valuation; or (b) disputed the valuation under section 156, the local government may, by written notice to the owner of the land, determine that the valuation is no longer current and that a 10 fresh valuation is required. 156. Dispute as to valuation (1) If either the owner of the land or the local government disputes a valuation made under section 155, the valuation may be varied by agreement between the parties or the dispute may be settled 15 by such method as they may agree upon. (2) If after 28 days from the date when both parties have received the valuation the dispute has not been settled or an agreement made as to the method of settlement, either the owner of the land or the local government may refer the dispute for 20 determination by an arbitrator under the Commercial Arbitration Act 1985. 157. When approval of subdivision is deemed to be approval under planning scheme (1) Subject to subsection (2), when the Commission has approved a 25 plan of subdivision of any land to which a planning scheme relates, that approval is taken to be approval by the responsible authority under the planning scheme of the carrying out of works necessary to enable the subdivision of the land that are -- (a) shown on the plan of subdivision; or 30 (b) required by the Commission to be carried out as a condition of approval of the plan of subdivision. page 113 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 4 Subdivision costs s. 158 (2) When approving a plan of subdivision the Commission may determine that the approval is not to be taken under subsection (1) to be approval by the responsible authority under the planning scheme of the carrying out of works specified in 5 the determination, and the determination has effect accordingly. Division 4 -- Subdivision costs 158. Expenses of road or waterway construction and road drainage (1) Where a person who is subdividing land is required under this 10 Part to construct and drain roads or construct artificial waterways shown on the plan of subdivision that person may -- (a) carry out or cause to be carried out the construction and drainage at his or her own expense; or (b) arrange for the local government to carry out the work 15 on behalf, and at the cost and expense, of that person. (2) Where the person does not make the arrangement with the local government, that person is to pay to the local government, on demand, an amount (calculated under subsection (3)) to cover the reasonable costs of the local government in supervising the 20 construction and drainage. (3) For the purposes of subsection (2) the amount is to be calculated as follows -- (a) where the person has not engaged a consulting engineer and clerk of works to design and supervise the 25 construction and drainage, the amount is to be 3% of the cost of the construction and drainage as estimated by the local government; (b) where the person has engaged a consulting engineer and clerk of works to design and supervise the construction 30 and drainage, the amount is to be 1½% of the cost of the construction and drainage as estimated by the local government. page 114 Planning and Development Bill 2004 Subdivision and development control Part 10 Subdivision costs Division 4 s. 159 (4) The local government may require the person to employ a consulting engineer and clerk of works to design and supervise the construction and drainage and that person, when required to do so by the local government, is to carry out the requirement. 5 159. Subdivider may recover portion of road costs from subsequent subdivider (1) Where -- (a) a person (in this section called the "later subdivider") has subdivided land in which -- 10 (i) a lot or lots has or have a common boundary with; or (ii) a road joins, an existing road to which there is access from the subdivided land; 15 (b) a person (in this section called the "original subdivider") who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing or upgrading the existing 20 road; and (c) the later subdivider did not contribute to that cost, the original subdivider may, in accordance with this Division, recover from the later subdivider a sum representing one-half of so much of the reasonable cost as was borne by the original 25 subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, as referred to in paragraph (a). (2) In this section -- "CPI" means the Table described as the Consumer Price Index 30 (All Groups Index) for Perth published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth, or if the same is not published, such other similar index as the Minister may reasonably determine; page 115 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 4 Subdivision costs s. 159 "market value of land" means the capital sum, determined in accordance with section 155(3)(b)(ii), (iii) and (iv), which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such 5 reasonable terms and conditions as a bona fide seller would require; "road" has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or within the meaning of the Land Administration 10 Act 1997 section 3(1). (3) In this section a reference to the "cost of providing a road" is a reference to the aggregate of -- (a) the value, as at the date of the subdivision referred to in subsection (1)(b), of the portion of the land provided as 15 a road, being such percentage of the market value of the total area of land comprised in that subdivision as the area of the road bears to that total area as at the date of that subdivision; and (b) the reasonable cost of designing and carrying out the 20 following works -- (i) the survey of the land provided as a road; (ii) the formation, preparation, priming and sealing of the road; and (iii) the provision of kerbing, drainage and service 25 ducts in connection with the road, escalated by the percentage by which the CPI last published prior to the date of the subsequent subdivision has increased over the CPI last published prior to the original subdivider subdividing the land referred to in subsection (1)(b). page 116 Planning and Development Bill 2004 Subdivision and development control Part 10 Development controls Division 5 s. 160 160. How subdivision costs recovered An amount payable under section 159 may be recovered by the original subdivider in a court of competent jurisdiction as a debt due to the original subdivider by the later subdivider; but no 5 proceedings for recovery of the debt are to be commenced after the expiration of 6 years from the date of the later subdivision. 161. When land is subdivided For the purposes of this Division land is subdivided on the date on which the approval of the Commission is endorsed on the 10 diagram or plan of survey relating to the subdivision of the land. Division 5 -- Development controls 162. Development requires approval (1) Subject to this Act, where a planning scheme or interim development order provides that development referred to in the 15 planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies 20 unless -- (a) the approval has been obtained and is in force under the planning scheme or interim development order; and (b) the development is carried out in accordance with the conditions subject to which the approval was granted. 25 (2) Nothing in this section limits or otherwise affects a right or entitlement under any other written law. page 117 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 5 Development controls s. 163 163. Heritage places Where any land comprised within a place entered in the Register maintained by the Heritage Council under the Heritage of Western Australia Act 1990, or of which such a place forms 5 part, is to be the subject of development, an application for approval of the development is to be made -- (a) in the case of an application under a local planning scheme or local interim development order, to the responsible authority; and 10 (b) in any other case, to the Commission. 164. Development may be approved after commencement (1) A responsible authority may grant its approval under a planning scheme or interim development order for development already commenced or carried out. 15 (2) The Commission may grant its approval under section 116 for development already commenced or carried out in a planning control area. (3) Subsections (1) and (2) do not affect the operation of the provisions of Part 13 in respect of development commenced or 20 carried out before approval has been granted. (4) Development which was unlawfully commenced or carried out is not rendered lawful by the occurrence of any subsequent event except the approval by the relevant responsible authority of that development. 25 (5) The continuation of development unlawfully commenced is taken to be lawful upon the grant of approval for the development. page 118 Planning and Development Bill 2004 Subdivision and development control Part 10 Miscellaneous Division 6 s. 165 Division 6 -- Miscellaneous 165. Record of conditions on title (1) This section applies when the Commission considers it desirable that owners or prospective owners of land comprised in -- 5 (a) a plan of subdivision or proposed plan of subdivision; or (b) a strata/survey-strata plan or proposed strata/survey-strata plan under the Strata Titles Act 1985, be made aware of hazards or other factors seriously affecting 10 the use or enjoyment of that land and determines that the title and land register in respect of that land should be noted accordingly. (2) When this section applies, the Commission may cause a notification of the hazard or other factor affecting the use or 15 enjoyment of the land to be prepared in a form acceptable to the Registrar of Titles and deposited at the TLA Department. (3) Where a notification is deposited under subsection (2), the Registrar of Titles is to endorse or note the title and land register in respect of the land with that notification. 20 (4) The Commission may, at any time after the notification has been deposited under subsection (2), lodge a withdrawal of that notification at the TLA Department. (5) A withdrawal of a notification under subsection (4) is to be in a form acceptable to the Registrar of Titles. 25 166. Encroachments If, after the erection of a building on land the property of one owner -- (a) it is found that the building encroaches upon land the property of another owner to the extent of not more than 30 one metre; page 119 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 6 Miscellaneous s. 167 (b) the encroaching owner desires to purchase the land upon which the encroachment stands; (c) an application for approval of the necessary subdivision is made by the owner of the land encroached upon; and 5 (d) the Commission is satisfied that there has not been collusion and that everything has been done in good faith without intention to evade the law, the Commission is to approve of the necessary subdivision. 167. Easements 10 (1) Where -- (a) a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 is received at the TLA Department; and (b) it is shown on the plan or diagram that any land 15 comprised in the diagram or plan is subject to or intended to be subject to an easement in favour of -- (i) the local government in whose district the land is situated, for the purposes of sewerage or drainage or access to sewerage or drainage 20 works; (ii) a licensee within the meaning of the Water Services Licensing Act 1995, for the purpose of water supply, sewerage, irrigation or drainage works or access to water supply, sewerage, 25 irrigation or drainage works; (iii) the holder of a licence under the Electricity Industry Act 2004 for the purpose of the supply of electricity or access to electricity supply works; 30 (iv) the holder of a distribution licence under the Energy Coordination Act 1994 for the purpose of the supply of gas, or access to gas supply works, under the authority of that licence; or page 120 Planning and Development Bill 2004 Subdivision and development control Part 10 Miscellaneous Division 6 s. 167 (v) any holder of a licence under a written law for the purpose of the supply of a utility service or access to a utility service, under the authority of that licence, 5 the land becomes subject to an easement in favour of the person or authority mentioned on the plan or diagram for the purpose mentioned on the diagram or plan -- (c) in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles 10 registers the plan under that Act; and (d) in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893. 15 (2) An easement in favour of a person or authority for any purpose, to which any land is subject by virtue of this section, gives that person or authority such rights, powers and privileges as are prescribed in respect of an easement in favour of that person or authority for that purpose. 20 (3) If, by virtue of this section, any land is subject to an easement, the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence that the land is so subject, and, for the purpose of making any such entry or endorsement or 25 registering any such memorial, it is sufficient description of the easement if reference is made to this section. (4) Where, by virtue of this section, any land is subject to an easement in favour of a person or authority for any purpose, the Registrar of Titles may, by order made -- 30 (a) upon application in writing by the person or authority; and (b) with the consent in writing of all persons having a registered interest in the land, page 121 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 6 Miscellaneous s. 168 vary or extinguish the easement and upon such variation or extinction, the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation or extinction. 5 (5) The purpose of an easement in favour of a person or authority is to be taken to be varied if -- (a) the prescribed circumstances set out in the regulations occur; and (b) the person or authority gives written consent to that 10 variation, and the Registrar of Titles is to make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation. 168. Roads 15 (1) All land on a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 deposited in the TLA Department that is shown as a new road is dedicated as a road. (2) The local government within the district in which the dedicated 20 road is situated has the care, control and management of the road. (3) All land on a diagram or plan of survey of a subdivision or a plan lodged for registration under the Strata Titles Act 1985 deposited at the TLA Department that is shown as a road 25 widening or is for the purpose of extending or adding to a road forms part of the road and is dedicated to the public use. (4) Subsections (1) and (3) operate -- (a) in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles 30 registers the plan under that Act; and page 122 Planning and Development Bill 2004 Subdivision and development control Part 10 Miscellaneous Division 6 s. 168 (b) in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the diagram or plan have been registered under the Transfer of Land Act 1893. 5 (5) When a portion of land is transferred to the Crown or a local government for the purpose of extending or adding to a road, the transferred portion is taken -- (a) to be dedicated to the public use; and (b) to form part of the road, 10 as and from the date of registration of the transfer in the TLA Department. (6) When a road corner shown on a plan deposited in the TLA Department or in the LAA Department is subsequently rounded off or truncated, the portion of land so excised forms part of the 15 road and is dedicated to the public use. (7) The local government within the district in which the land referred to in subsection (6) is situated has the care, control and management of the land. (8) Subsection (6) operates -- 20 (a) in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; (b) in the case of a plan lodged with an application for a new certificate or certificates, at the time the new 25 certificate, or if more than one, all the new certificates, for the land the subject of the plan have been registered; (c) in the case of a plan lodged with an application for registration of a document giving effect to the rounding off or truncation, at the time of the registration of that 30 document. (9) Land referred to in subsection (1), (3) or (6) does not form part of a parcel comprised in a plan that is registered under the Strata Titles Act 1985. page 123 Planning and Development Bill 2004 Part 10 Subdivision and development control Division 6 Miscellaneous s. 169 169. Commission may fix minimum standards of construction (1) The Commission may by notice published in the Gazette fix minimum standards of construction with respect to roads and artificial waterways to be constructed on a proposed 5 subdivision. (2) A notice published under subsection (1) may set out particulars relating to the width, kerbing, thickness, surfacing and foundations of roads, and the materials to be used in the construction of roads and artificial waterways. 10 (3) A notice published under subsection (1) is subsidiary legislation for the purposes of sections 43 and 44 of the Interpretation Act 1984. (4) A person who without the approval of the Commission constructs a road or artificial waterway on a subdivision that 15 does not comply with the standards set out in a notice published under subsection (1) commits an offence. 170. Local government to be provided with specifications for roads and waterways (1) Before a person who is subdividing land commences to 20 construct and drain roads or construct artificial waterways shown in the diagram or plan of survey, that person is to give to the local government -- (a) drawings showing longitudinal and cross sections of the proposed road or artificial waterway; 25 (b) specifications of the proposed road or artificial waterway; and (c) such other information including information relating to levels, drainage, nature of soil, and physical features as the local government requires. 30 (2) A person who does not comply with subsection (1) commits an offence. page 124 Planning and Development Bill 2004 Subdivision and development control Part 10 Miscellaneous Division 6 s. 170 (3) The local government may by written notice require the person subdividing the land -- (a) to amend the drawings or specifications or both; and (b) to comply with such further conditions as the local 5 government thinks fit to impose in respect of the proposed road or waterway, for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission. 10 (4) Without limiting the powers conferred on a local government by subsection (3), where -- (a) a person delivers drawings and specifications of a proposed road or artificial waterway to a local government under subsection (1); and 15 (b) the proposed road or artificial waterway, if constructed in accordance with those plans and specifications, would not satisfy the minimum standards fixed under section 169 applicable to the proposed road or artificial waterway, 20 the local government is to by written notice require the person to so amend the drawing or specifications, or both, as to cause the proposed road or artificial waterway to satisfy those minimum standards. (5) A person who is aggrieved by a requirement of the local 25 government made under subsection (3) may appeal to the Tribunal, in accordance with Part 14, against the responsible authority's decision. (6) A person who does not comply with a requirement of a local government made by written notice given to that person under 30 subsection (3) commits an offence. page 125 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 1 General matters in relation to compensation s. 171 Part 11 -- Compensation and acquisition Division 1 -- General matters in relation to compensation 171. Only one entitlement to compensation (1) If compensation has been paid under a provision of this Part in 5 relation to a matter or thing no further compensation is payable under any other provision of this Act as a result of the same matter or thing. (2) When a person is entitled to compensation under this Act in respect of any matter or thing, and is also entitled to 10 compensation in respect of the same matter or thing under any other written law, that person is not entitled to compensation in respect of that matter or thing both under this Act and that other written law, and is not entitled to any greater compensation under this Act than that person would be under the other written 15 law. Division 2 -- Compensation where land injuriously affected by planning scheme 172. Meaning of terms used in this Division In this Division -- 20 "Board" means the Board of Valuers established under section 182; "non-conforming use" means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is 25 not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7; "public purpose" means a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work. page 126 Planning and Development Bill 2004 Compensation and acquisition Part 11 Compensation where land injuriously affected by planning Division 2 scheme s. 173 173. Entitlement to compensation where land injuriously affected by planning scheme (1) Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is 5 entitled to obtain compensation in respect of the injurious affection from the responsible authority. (2) Despite subsection (1) a person is not entitled to obtain compensation under this section on account of any building erected, or any contract made, or other thing done with respect 10 to land included in a planning scheme after the date of the approval of a planning scheme or amendment, or after such other date as the Minister may fix for the purpose, being not earlier than the date of the approval of the scheme or amendment. 15 (3) A responsible authority may make agreements with owners for the development of their land during the time that the planning scheme or amendment is being prepared. 174. When land is injuriously affected (1) Subject to subsection (2), land is injuriously affected by reason 20 of the making or amendment of a planning scheme if, and only if -- (a) that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; 25 (b) the scheme permits development on that land for no purpose other than a public purpose; or (c) the scheme prohibits wholly or partially -- (i) the continuance of any non-conforming use of that land; or 30 (ii) the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non-conforming use of the land, which, but for that prohibition, would not page 127 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 2 Compensation where land injuriously affected by planning scheme s. 174 have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated. 5 (2) Despite subsection (1)(c)(ii), a planning scheme which prescribes any requirement to be complied with in respect of a class or kind of building is not taken to have the effect of so prohibiting the erection, alteration or extension of a building of that class or kind in connection with, or in furtherance of that 10 class or kind in connection with, or in furtherance of, non-conforming use. (3) Where a planning scheme wholly or partially prohibits the continuance of any non-conforming use of any land or the erection, alteration or extension of any building in connection 15 with or in furtherance of a non-conforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme or amendment does not comprise -- (a) the lot or lots on which the non-conforming use is in fact 20 being carried on; (b) if the prohibition relates to a building or buildings standing on one lot, the lot on which the building stands or the buildings stand; or (c) if the prohibition relates to a building or buildings 25 standing on more than one lot, the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for 30 which the building or buildings is or are being used. (4) If any question arises under subsection (3) as to whether at any particular date, any land -- (a) does or does not comprise the lot or lots on which a non-conforming use is being carried on; page 128 Planning and Development Bill 2004 Compensation and acquisition Part 11 Compensation where land injuriously affected by planning Division 2 scheme s. 175 (b) is or is not being used for any purpose authorised by a scheme; or (c) is or is not reasonably required for the purpose for which any building is being used, 5 the claimant or responsible authority may apply to the Tribunal for determination of that question. 175. No entitlement to compensation where provisions are, or could have been, in certain other laws When land is alleged to be injuriously affected by reason of the 10 making or amendment of a planning scheme, no compensation is payable in respect of the injurious affection if or so far as the relevant provisions of the planning scheme are -- (a) also contained in any Act, or in any order having the force of an Act of Parliament, in operation in the area; or 15 (b) such as would have been enforceable without compensation if they had been contained in local laws. 176. How questions determined (1) A claimant or responsible authority may apply to the Tribunal for determination of any question as to whether land is 20 injuriously affected. (2) Any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this Division is to be determined by arbitration under and in accordance with the Commercial 25 Arbitration Act 1985, unless the parties agree on some other method of determination. page 129 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 2 Compensation where land injuriously affected by planning scheme s. 177 177. When compensation is payable if land reserved for public purpose (1) Subject to subsection (3), when under a planning scheme any land has been reserved for a public purpose, no compensation is 5 payable by the responsible authority for injurious affection to that land alleged to be due to or arising out of such reservation until -- (a) the land is first sold following the date of the reservation; or 10 (b) the responsible authority -- (i) refuses an application made under the planning scheme for approval of development on the land; or (ii) grants approval of development on the land 15 subject to conditions that are unacceptable to the applicant. (2) Compensation for injurious affection to any land is payable only once under subsection (1) and is so payable -- (a) under subsection (1)(a) to the person who was the owner 20 of the land at the date of reservation referred to in subsection (1)(a); or (b) under subsection (1)(b) to the person who was the owner of the land at the date of application referred to in subsection (1)(b), 25 unless after the payment of that compensation further injurious affection to the land results from -- (c) an alteration of the existing reservation of the land; or (d) the imposition of another reservation of the land. page 130 Planning and Development Bill 2004 Compensation and acquisition Part 11 Compensation where land injuriously affected by planning Division 2 scheme s. 178 (3) Before compensation is payable under subsection (1) -- (a) when the land is sold, the person lawfully appointed under section 176 to determine the amount of the compensation is to be satisfied that -- 5 (i) the owner of the land has sold the land at a lesser price than the owner might reasonably have expected to receive had there been no reservation of the land under the planning scheme; (ii) the owner before selling the land gave written 10 notice to the responsible authority of the owner's intention to sell the land; and (iii) the owner sold the land in good faith and took reasonable steps to obtain a fair and reasonable price for the land; 15 or (b) when the responsible authority refuses an application made under the planning scheme for approval of development on the land or grants approval of development on the land subject to conditions that are 20 unacceptable to the applicant, the person lawfully appointed under section 176 to determine the amount of the compensation is to be satisfied that the application was made in good faith. 178. When claim for compensation may be made 25 (1) A claim for compensation for injurious affection to land by the making or amendment of a planning scheme is to be made -- (a) in the case of a claim in respect of injurious affection referred to in section 174(1)(a) or 174(1)(b), at any time within 6 months after -- 30 (i) the land is sold; (ii) the application for approval of development on the land is refused; or page 131 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 2 Compensation where land injuriously affected by planning scheme s. 179 (iii) the approval is granted subject to conditions that are unacceptable to the applicant; or (b) in the case of a claim in respect of injurious affection 5 referred to in section 174(1)(c), within the time, if any, limited by the planning scheme. (2) The time limited by a planning scheme under subsection (1)(b) is to be not less than 6 months after the date when notice of the approval of the scheme is published in the manner prescribed by 10 the regulations. 179. Amount of compensation for injurious affection arising out of reservation for public purposes (1) Subject to this Division, the compensation payable for injurious affection due to or arising out of the land being reserved under a 15 planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between -- (a) the value of the land as so affected by the existence of such reservation; and 20 (b) the value of the land as not so affected. (2) The values referred to in subsection (1)(a) and (b) are to be assessed as at the date on which -- (a) the land is sold as referred to in section 178(1)(a); (b) the application for approval of development on the land 25 is refused; or (c) the approval is granted subject to conditions that are unacceptable to the applicant. page 132 Planning and Development Bill 2004 Compensation and acquisition Part 11 Compensation where land injuriously affected by planning Division 2 scheme s. 180 180. Notification may be lodged if compensation paid (1) When compensation for injurious affection to any land has been paid under section 177, the responsible authority may lodge with the Registrar of Titles or the Registrar of Deeds and 5 Transfers, as the case requires, a notification in a form acceptable to the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, specifying -- (a) the date of payment of compensation; (b) the amount of compensation so paid; and 10 (c) the proportion (expressed as a percentage), which the compensation bears to the unaffected value of the land as assessed under section 179(2). (2) On receipt of the notification from the responsible authority, the Registrar of Titles or the Registrar of Deeds and Transfers, as 15 the case requires, is to register the notification. 181. Responsible authority may recover compensation if reservation revoked or reduced (1) Where -- (a) compensation for injurious affection to land (the 20 "original compensation") has been paid to an owner of land in the circumstances set out in section 177; and (b) as a result of the planning scheme being amended or revoked the reservation of the land for a public purpose is revoked or the area of the land the subject of the 25 reservation is reduced, the responsible authority is entitled to recover from the owner of the land at the date of the revocation or reduction of the reservation an amount (the "refund") which is determined by calculating the relevant proportion (as determined under 30 subsections (4) to (7)) of the value of the land as at the date on which the refund becomes payable under subsection (2). page 133 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 2 Compensation where land injuriously affected by planning scheme s. 181 (2) The refund is not payable by the owner of the land until the land is first sold or subdivided following the date of the revocation or reduction referred to in subsection (1)(b) unless otherwise agreed by the owner and the responsible authority. 5 (3) If the land is owned by 2 or more people they are jointly and severally liable to pay the refund. (4) When the reservation has been revoked the relevant proportion for the purposes of subsection (1) is the same as the proportion referred to in section 180(1)(c) in relation to the original 10 compensation. (5) Where the area of the reservation has been reduced the relevant proportion for the purposes of subsection (1) is to be determined as follows -- (a) a notional amount of compensation is determined under 15 sections 177 and 179 as if -- (i) the reservation had never occurred; (ii) a reservation of the reduced area had occurred when the reduction occurred; and (iii) the land were being sold; 20 (b) the proportion (expressed as a percentage) which that notional amount of compensation bears to the current value of the land (unaffected by the existence of the reservation) is calculated; and (c) the relevant proportion is then determined by deducting 25 the proportion calculated under paragraph (b) from the proportion referred to in section 180(1)(c) in relation to the original compensation. Example: Original compensation proportion 25% Less Notional compensation proportion 15% Relevant proportion = 10% page 134 Planning and Development Bill 2004 Compensation and acquisition Part 11 Compensation where land injuriously affected by planning Division 2 scheme s. 181 (6) Despite subsection (4), where the reservation is revoked after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is the same as the notional compensation proportion calculated 5 under subsection (5)(a) and (b) in respect of the previous reduction. (7) Despite subsection (5), where the reservation is reduced after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is 10 to be determined as follows -- (a) a notional compensation proportion is calculated under subsection (5)(a) and (b) in respect of the subsequent reduction; and (b) the relevant proportion is then determined by deducting 15 the proportion referred to in paragraph (a) from the notional compensation proportion calculated under subsection (5)(a) and (b) in respect of the previous reduction. Example: Notional compensation proportion calculated under subsection (5)(a) and (b) on previous reduction 15% Less Notional compensation proportion calculated under subsection (5)(a) and (b) on subsequent reduction 8% Relevant proportion on subsequent reduction = 7% (8) For the purposes of subsections (1) and (5)(b) the value of the 20 land is to be determined by one of the methods set out in section 188(2)(a), (b) or (c), but that value is to be determined page 135 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 2 Compensation where land injuriously affected by planning scheme s. 181 without regard to any increase in value attributable to factors unrelated to the reservation or to its revocation or reduction. (9) When the responsible authority has an entitlement to recover an amount under subsection (1) it has an interest in the land and 5 may lodge with the Registrar a notification in a form acceptable to the Registrar of the existence of that interest, and may withdraw, in a form acceptable to the Registrar, any notification so lodged. (10) On receipt of the notification or a withdrawal of notification 10 from the responsible authority, the Registrar is to register the notification or withdrawal of notification. (11) Before selling or subdividing land in respect of which a notification is lodged under subsection (9), the owner of the land is to give written notice to the responsible authority, in 15 accordance with the regulations, of the owner's intention to sell or subdivide the land. (12) Where a notification is lodged under subsection (9) the Registrar of Titles is not to register a transfer of the land without the consent of the responsible authority. 20 (13) Where a notification as to the land is lodged under subsection (9) with the Registrar of Deeds and Transfers without the consent of the responsible authority, registration of the document the subject of the notification is null and void. (14) Subject to subsection (15), in the case of land reserved under a 25 region planning scheme, subsection (1) has effect whether the reservation of the land occurred before the commencement of this section or occurs after that commencement. (15) In the case of land reserved under the Metropolitan Region Scheme, where the reservation occurred before the 30 commencement of this Act, subsection (1) does not have effect if -- (a) the revocation or reduction of the reservation occurred before 1 July 1998; or page 136 Planning and Development Bill 2004 Compensation and acquisition Part 11 Compensation where land injuriously affected by planning Division 2 scheme s. 182 (b) the sale or subdivision referred to in subsection (2) occurred before 1 March 1995, but otherwise has effect whether the revocation or reduction occurred before the commencement of this section or occurs 5 after that commencement. (16) In any other case subsection (1) has effect if the revocation or reduction occurs after the commencement of this section. (17) In this section -- "register" means to register under the Registration of Deeds 10 Act 1856 or Transfer of Land Act 1893, as the case requires; "Registrar" means the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires. 182. Board of Valuers 15 (1) A Board of Valuers is established. (2) The Board consists of the following members appointed by the Governor -- (a) a chairperson nominated by the Commission; and (b) 3 other members nominated by the body known as The 20 Real Estate Institute of Western Australia and incorporated under the Associations Incorporation Act 1987. (3) Each of the persons appointed to the Board is to be an Associate or a Fellow of the Australian Property Institute, an association 25 incorporated under the laws of South Australia. (4) Judicial notice is to be taken of the signature of the chairperson on any finding of the Board. (5) Schedule 9 has effect. page 137 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 2 Compensation where land injuriously affected by planning scheme s. 183 183. Valuations by the Board (1) The owner of land that is subjected to injurious affection due to, or arising out of, the land being reserved under a planning scheme for a public purpose who gives notice of intention to sell 5 the land and claim compensation is to, unless the responsible authority waives the requirement, apply to the Board of Valuers in the prescribed manner for a valuation of the land as not so affected and the Board is to make the valuation. (2) Subject to subsection (4), a valuation made by the Board under 10 subsection (1) is to be communicated to the applicant and to the responsible authority and, for the purposes of this Division, a valuation so made is final. (3) Upon receipt of a valuation made by the Board under this section, the responsible authority is to advise the owner of the 15 subject land of the minimum price at which the land may be sold without affecting the amount of compensation (if any) payable to him or her under this Division. (4) Where any land with respect to which a valuation has been made under this section is not sold within a period of 6 months 20 from the making of the valuation, the Board may, at the request of the owner of the land, if in the circumstances of the case it thinks it just to do so, review the valuation and either confirm the valuation or vary it. (5) Where the Board reviews a valuation under subsection (4), it is 25 to notify the owner of the land and the responsible authority accordingly and upon that notification subsection (3), with such modification as circumstances require, applies to the valuation as reviewed by the Board. page 138 Planning and Development Bill 2004 Compensation and acquisition Part 11 Other compensation Division 3 s. 184 Division 3 -- Other compensation 184. Betterment, and compensation where scheme amended or repealed (1) If, by the expenditure of money by the responsible authority in 5 the making and carrying out of a planning scheme, any land or property is within 12 months of the completion of the work, or of the section of the work affecting the land, as the case may be, increased in value, the responsible authority may recover from any person whose land or property is so increased in value, one 10 half of the amount of that increase. (2) A claim by a responsible authority for the purposes of subsection (1) is to be made within the time, if any, limited by the planning scheme, not being less than 3 months after the date when notice of the approval of the scheme is first published. 15 (3) If a planning scheme is amended or repealed by an order of the Minister under this Act any person who has incurred expenditure for the purpose of complying with the planning scheme is entitled to compensation from the responsible authority, in so far as any such expenditure is rendered abortive 20 by reason of the amendment or repeal of the planning scheme. (4) A question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which -- (a) the responsible authority is entitled to recover under this section from a person whose land is increased in value; 25 or (b) is to be paid as compensation under this section, is to be determined by arbitration in accordance with the Commercial Arbitration Act 1985 or by some other method agreed by the parties. page 139 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 3 Other compensation s. 185 185. Compensation in relation to interim development order (1) Compensation for injurious affection to any land within a regional order area or a local order area or for loss arising from any other cause is payable under this Part as a result of the 5 operation of the relevant interim development order if, and only if -- (a) the Commission or the local government administering the interim development order -- (i) refuses an application made under that interim 10 development order for approval of development on that land; or (ii) grants such an application subject to conditions, on the ground that the proposed planning scheme for the regional order area or local order area, as the case 15 requires, is to include that land within a reservation for public purposes; and (b) any determination appealed against by the claimant under section 276 has been affirmed in whole or in part by the Tribunal. 20 (2) The Commission or local government, as the case requires, may, and if the claimant so requests is to, purchase any land injuriously affected at a price not exceeding the value of that land at the time of -- (a) the refusal of approval; or 25 (b) the grant of approval subject to conditions, without regard to any increase in value attributable wholly or in part to the proposed region planning scheme or proposed local planning scheme for the regional order area or local order area in which the land is situated. 30 (3) If the land is not purchased under subsection (2), when compensation of the kind referred to in subsection (1) is claimed that compensation is to be determined by arbitration in page 140 Planning and Development Bill 2004 Compensation and acquisition Part 11 Purchase or compulsory acquisition Division 4 s. 186 accordance with the Commercial Arbitration Act 1985 or by some other method agreed by the parties. 186. Compensation in relation to planning control areas (1) Compensation is payable in respect of land injuriously affected 5 by the declaration, or by the amendment of the declaration, of a planning control area, and land so affected may be acquired by the Commission, in the same circumstances and to the same extent as if the land in the planning control area, instead of being in the planning control area, had been reserved under a 10 planning scheme for a public purpose. (2) Division 2 applies to compensation payable under this section as if any reference in that Division to compensation for injurious affection to any land were a reference to compensation under this section for injurious affection as a result of the declaration 15 of a planning control area under section 112, or the amendment of the declaration under section 113. Division 4 -- Purchase or compulsory acquisition 187. Election to acquire instead of compensation (1) Where compensation for injurious affection is claimed as a 20 result of the operation of the provisions of section 174(1)(a) or 174(1)(b), the responsible authority may at its option elect to acquire the land so affected instead of paying compensation. (2) The responsible authority, within 3 months of the claim for injurious affection being made, is to by written notice given to 25 the claimant -- (a) elect to acquire the land; or (b) advise that it does not intend to acquire the land. (3) Where the responsible authority elects to acquire the land as provided in subsections (1) and (2), if the responsible authority 30 and the owner of the land are unable to agree as to the price to be paid for the land by the responsible authority, the price at page 141 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 4 Purchase or compulsory acquisition s. 188 which the land may be acquired by the responsible authority is to be the value of the land as determined in accordance with section 188. (4) If -- 5 (a) an owner of land claims compensation and the responsible authority elects to purchase the land instead of paying compensation; and (b) the price to be paid for the land by the responsible authority has not been determined for the purposes of 10 subsection (3), the owner of the land may withdraw the claim for compensation and, upon that withdrawal, the election has no effect. 188. How value of land is to be determined (1) The value of the land referred to in section 187(3) is to be -- 15 (a) the value of the land on the date the responsible authority elects to acquire the land under that section; and (b) determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the 20 planning scheme. (2) Subject to subsection (4), the value of the land referred to in section 187(3) is to be determined -- (a) by arbitration in accordance with the Commercial Arbitration Act 1985; 25 (b) on the application of the owner of the land, made in the prescribed manner -- (i) if the value of the land claimed by the owner of the land is not more than the prescribed amount, by a Local Court sitting at a place nearest to 30 where the land lies; or page 142 Planning and Development Bill 2004 Compensation and acquisition Part 11 Purchase or compulsory acquisition Division 4 s. 189 (ii) if the value of the land claimed by the owner of the land is more than the prescribed amount, by the Supreme Court; or 5 (c) by some other method agreed upon by the responsible authority and the owner of the land. (3) If arbitration has not commenced under subsection (2)(a), an application has not been made under subsection (2)(b), and no method has been agreed under subsection (2)(c), within 10 12 months of the date on which the responsible authority elected to acquire the land, the responsible authority may -- (a) refer the matter for determination by arbitration in accordance with the Commercial Arbitration Act 1985; or 15 (b) apply to the Tribunal for a determination of that value, and the value determined under this subsection is to be the value of the land for the purposes of section 187. (4) Where a dispute is referred for determination under subsection (3)(a) there is taken to be, for the purposes of the 20 Commercial Arbitration Act 1985, an arbitration agreement to refer the dispute, and the parties to the agreement are taken to be the owner of the land and the responsible authority. 189. Commission may purchase land before scheme has force of law 25 The Commission may, if it considers that any land to which a proposed region planning scheme or a proposed amendment to a region planning scheme is to apply is likely to be comprised in the scheme, purchase the land. page 143 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 4 Purchase or compulsory acquisition s. 190 190. Responsible authority may purchase land The responsible authority may, for the purpose of a planning scheme, in the name and on behalf of such responsible authority, purchase any land comprised in the planning scheme 5 from any person who may be willing to sell the same. 191. Responsible authority may take land comprised in scheme (1) The responsible authority may, for the purpose of a planning scheme and with the consent of the Governor, take compulsorily under and subject to Part 9 of the Land Administration Act 1997 10 (but subject to subsection (3)), any land comprised in the scheme, and whether situate within or without the boundaries of the district of the responsible authority. (2) Land acquired under subsection (1) is to be acquired in the name and on behalf of the responsible authority. 15 (3) When any land is taken compulsorily under the powers conferred by this section the provisions of -- (a) sections 166 to 171 inclusive; and (b) section 180, of the Land Administration Act 1997 do not apply to or in 20 respect of the land or the taking or in any manner whatsoever, and that Act is to be read and construed as if the provisions were deleted. 192. Valuation of land or improvements acquired by responsible authority 25 (1) Despite Part 10 of the Land Administration Act 1997, the value of any land or improvements on land which is compulsorily acquired by a responsible authority under section 191 is, for the purpose of assessing the amount of compensation to be paid for the land and improvements to be assessed -- 30 (a) without regard to any increase or decrease in value attributed wholly or in part to any of the provisions page 144 Planning and Development Bill 2004 Compensation and acquisition Part 11 Purchase or compulsory acquisition Division 4 s. 193 contained in, or to the operation or effect of, the relevant planning scheme; and (b) having regard to values current at the time of acquisition, 5 but in assessing the amount of compensation regard is to be had to any amounts of compensation already paid, or payable, by the responsible authority in respect of the land under Division 2. (2) Where compensation has been paid, or is payable, in respect of land under Division 2, then, subject to subsection (3), there is to 10 be deducted from the compensation assessed under subsection (1) an amount that bears the same ratio to the compensation so assessed as the compensation paid or payable under that Division bears to the unaffected value of the land, as determined under this Part. 15 (3) In assessing the amount to be deducted from compensation under subsection (2), the person lawfully appointed to determine the amount of compensation is to have regard to -- (a) any improvements or demolitions lawfully made to or on the land, subsequently to the determination of the 20 unaffected value of the land; and (b) to the earlier termination of the tenure of the land, where the compensation might otherwise have been affected by an assurance given by the responsible authority, and which the responsible authority is by this paragraph 25 authorised to give, that the tenure was to be of a greater period. 193. Responsible authority has powers of owner of land Subject to the relevant planning scheme, a responsible authority which takes or acquires land under this Part has all the powers 30 of an owner in respect of the land, and may erect buildings on the land or otherwise improve and make use of the land in such manner as the responsible authority thinks fit. page 145 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 4 Purchase or compulsory acquisition s. 194 194. Responsible authority may grant easements (1) The responsible authority may grant to any person any easement in, upon, through, under, or over, any land taken or acquired for planning purposes, subject to such conditions and payments of 5 such rents as the responsible authority thinks fit. (2) A grant of an easement under subsection (1) is subject to revocation without compensation at any time the responsible authority thinks fit, or in the case of a breach of any condition under which an easement may have been granted. 10 195. Commission may acquire land included in improvement plan (1) The Commission may while the relevant region planning scheme has the force of law, purchase or otherwise acquire any land included in an improvement plan in force under 15 section 119 by agreement with the owner of the land. (2) In default of agreement under subsection (1), the Commission may acquire the land compulsorily under and subject to Part 9 of the Land Administration Act 1997, as modified by this section. 20 (3) Subject to this section, the provisions of Parts 9 and 10 of the Land Administration Act 1997 apply to the taking of any land compulsorily under this section, with such modifications as circumstances require and in so applying those provisions any reference to the Minister administering that Act is to be read as 25 a reference to the Minister administering this Act. (4) Nothing in this section is to be construed as taking away or in any way derogating from or diminishing any power otherwise conferred by this or any other Act upon the Commission or any other authority, body or person. page 146 Planning and Development Bill 2004 Compensation and acquisition Part 11 Purchase or compulsory acquisition Division 4 s. 196 196. Commission may dispose of land acquired by it (1) The Commission is to hold for the purposes of the relevant region planning scheme any land acquired by it under this Part and may, subject to subsections (2) and (3), dispose of or 5 alienate that land -- (a) for or in furtherance of the provisions or likely provisions of the relevant region planning scheme; or (b) if that land is no longer required by the Commission. (2) Subject to subsection (3), except with the consent of the 10 Governor, the Commission is not to dispose of or alienate any land compulsorily acquired by it other than for or in furtherance of the provisions or likely provisions of the relevant region planning scheme. (3) In exercising a power to dispose of or alienate land conferred by 15 this section, the Commission is to have regard to the general principle that in such cases land acquired by the Commission should, if in the opinion of the Minister it is practicable and appropriate to do so, be first offered for sale at a reasonable price determined by the Minister to the person from whom that 20 land was so acquired. 197. Governor may declare land to be held and used for region planning scheme (1) Where any land held, taken, resumed or otherwise acquired under any Act, for any public work, is in the opinion of the 25 Governor not required for that work and is required for the purposes or likely purposes of a region planning scheme, the Governor, despite Part 9 Division 5 of the Land Administration Act 1997, may declare by notice published in the Gazette that the land is to be held and may be used for the purposes of the 30 region planning scheme. (2) From the date of the publication of the notice the land described in the notice, by force of this section, vests in the Commission for the purposes of the region planning scheme. page 147 Planning and Development Bill 2004 Part 11 Compensation and acquisition Division 4 Purchase or compulsory acquisition s. 197 (3) The Commission is to ensure that a memorial is lodged with the Registrar in respect of land vested in the Commission under this section as soon as is practicable after the land is so vested. (4) The memorial is to be -- 5 (a) accompanied by the notice published under subsection (1) in respect of the relevant land; and (b) in a form approved by the Registrar. (5) The Registrar is to register the memorial against the relevant land and take such steps as are necessary to record the vesting. 10 (6) In this section -- "register" means to register under the Registration of Deeds Act 1856 or Transfer of Land Act 1893, as the case requires; "Registrar" means the Registrar of Titles or the Registrar of 15 Deeds and Transfers, as the case requires. page 148 Planning and Development Bill 2004 Financial provisions Part 12 Metropolitan Region Improvement Fund Division 1 s. 198 Part 12 -- Financial provisions Division 1 -- Metropolitan Region Improvement Fund 198. Metropolitan Region Improvement Fund (1) For the purposes of reviewing, amending, carrying out and 5 giving effect to the Metropolitan Region Scheme, a fund called the Metropolitan Region Improvement Fund is established as an account forming part of the Trust Fund constituted under section 9 of the Financial Administration and Audit Act 1985. (2) The Commission is to control the Fund and the Fund may be 10 operated for the purposes set out in subsection (1) in such manner as from time to time the Treasurer approves and is by this section authorised to approve. (3) The Commission is to credit to the Fund -- (a) moneys appropriated to the Fund under section 201(2); 15 (b) any purchase moneys or rents or profits or other money received by the Commission from land acquired by it or arising out of the use or occupation of the land by the Commission; (c) moneys borrowed by the Commission for the 20 performance of any function referred to in section 14 in relation to the metropolitan region; and (d) any other payments made to the Commission in connection with the performance of a function referred to in paragraph (c). 25 199. Use of Fund (1) The Commission may apply money in the Fund to payment of all expenditure incurred by it for the purpose of reviewing, amending, carrying out and giving effect to the Metropolitan Region Scheme, including -- 30 (a) payment of capital expenditure, costs and other expenses incurred by the Commission in and in connection with, page 149 Planning and Development Bill 2004 Part 12 Financial provisions Division 2 Metropolitan Region Improvement Tax s. 200 the acquisition, whether by agreement or compulsorily, of any property in the metropolitan region under this Act; and (b) all expenses incurred by the Commission in or in 5 connection with -- (i) the Metropolitan Region Scheme, a regional interim development order in respect of land in the metropolitan region or the establishment and maintenance of any works in connection with the 10 Metropolitan Region Scheme or regional interim development order; (ii) the development, maintenance and management of any land held by the Commission that is reserved under the Metropolitan Region Scheme; 15 or (iii) the carrying out of any works, including the provision of facilities, incidental to such development, maintenance and management or conducive to the use of such land for any 20 purpose for which it is reserved. (2) The Commission is also authorised to apply money standing to the credit of the Fund to payment of expenditure required for the purpose of carrying out the East Perth Redevelopment Act 1991, the Subiaco Redevelopment Act 1994, the Midland 25 Redevelopment Act 1999, the Hope Valley-Wattleup Redevelopment Act 2000 or the Armadale Redevelopment Act 2001. Division 2 -- Metropolitan Region Improvement Tax 200. Owners' liability to pay Metropolitan Region 30 Improvement Tax (1) Subject to subsection (3), a person who, at midnight on 30 June in any year is the owner of land in the metropolitan region is liable to pay Metropolitan Region Improvement Tax on the land in accordance with this Act. page 150 Planning and Development Bill 2004 Financial provisions Part 12 Metropolitan Region Improvement Tax Division 2 s. 201 (2) The land is chargeable with the tax imposed by and at the rate imposed by the Metropolitan Region Improvement Tax Act 1959. (3) An owner of land in the metropolitan region is also liable to pay 5 Metropolitan Region Improvement Tax in accordance with sections 14 and 15 of the Land Tax Assessment Act 2002 and, for that purpose, those sections are to apply as if references in those sections to land tax and the Land Tax Act 2002 were respectively references to Metropolitan Region Improvement 10 Tax and the Metropolitan Region Improvement Tax Act 1959. (4) For the purposes of this Act the provisions of the Land Tax Assessment Act 2002 and the Taxation Administration Act 2003, relating to land tax and land so far as they can be made applicable with all necessary modifications or adaptations apply 15 to the Metropolitan Region Improvement Tax and land in the metropolitan region. (5) Despite anything contained in any other law, the amount of the tax which the Commissioner of State Revenue is to treat as having come into his or her possession under this Act in each 20 financial year is to be the amount of the tax which becomes payable in that financial year. 201. How tax collections are dealt with (1) The proceeds of the Metropolitan Region Improvement Tax referred to in section 200 are to be credited to the Consolidated 25 Fund. (2) An amount equal to the amount credited to the Consolidated Fund under subsection (1) is to be credited to the Metropolitan Region Improvement Fund and charged to the Consolidated Fund, and this subsection appropriates the Consolidated Fund 30 accordingly. page 151 Planning and Development Bill 2004 Part 12 Financial provisions Division 3 Financial provisions relating to the Commission s. 202 Division 3 -- Financial provisions relating to the Commission 202. Saving Nothing in this Division is to be read as derogating from Division 1 and this Division has effect subject to that Division. 5 203. Funds of the Commission (1) The funds available to the Commission to enable it to perform its functions are -- (a) moneys borrowed by the Commission under this Act; and 10 (b) other moneys lawfully received by, made available to, or payable to, the Commission under this or any other Act. (2) The funds referred to in subsection (1) are to be credited to, and money paid by the Commission is to be debited to, an account called the "Western Australian Planning Commission Account" 15 held -- (a) as part of the Trust Fund constituted under the Financial Administration and Audit Act 1985 section 9; or (b) with the approval of the Treasurer, at a bank as defined in the Financial Administration and Audit Act 1985 20 section 3(1). 204. Approval of the Minister to certain expenditure The Commission, without the consent of the Minister, in respect of any one work, is not to make a contract or incur any expenditure the consideration or cost of which exceeds 25 $1 000 000. 205. Borrowing restrictions (1) Subject to subsection (2), the Commission may, with the prior written approval of the Treasurer and on such terms as the Treasurer approves, borrow money for the performance by the 30 Commission of its functions. page 152 Planning and Development Bill 2004 Financial provisions Part 12 Financial provisions relating to the Commission Division 3 s. 206 (2) Any moneys borrowed by the Commission under this section may be raised as one loan or as several loans and in such manner as the Treasurer may approve, but the amount of money so borrowed is not in any one year to exceed in the aggregate 5 such amounts as the Treasurer approves. (3) For the purpose of making provision to repay either the whole or any part of any loan raised under this section the Commission may, subject to this section, borrow the moneys necessary for that purpose before the loan or part of it becomes payable. 10 206. Borrowing from Treasurer (1) In addition to the powers conferred by section 205, the Commission may borrow from the Treasurer such amounts as the Treasurer approves on such conditions relating to repayment and payment of interest as the Treasurer imposes. 15 (2) Under this section the Account and the assets of the Commission are charged with the due performance by the Commission of all obligations arising from any advance made under this section. 207. Guarantees of borrowing etc. 20 (1) The Treasurer is authorised to guarantee -- (a) the repayment of any amount borrowed from time to time under section 205; and (b) the payment of interest and such other charges in respect of such borrowings as the Treasurer has approved. 25 (2) A guarantee is to be in the form, and subject to the terms and conditions, determined by the Treasurer. (3) The due payment of money payable by the Treasurer under a guarantee is to be charged to the Consolidated Fund, which this subsection appropriates accordingly. page 153 Planning and Development Bill 2004 Part 12 Financial provisions Division 4 Financial provisions relating to local governments s. 208 (4) The Treasurer is to cause any amounts received or recovered, from the Commission or otherwise, in respect of any payment made by the Treasurer under a guarantee to be credited to the Consolidated Fund. 5 208. Application of Financial Administration and Audit Act 1985 The provisions of the Financial Administration and Audit Act 1985 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Commission and its operations. 10 209. Land of Commission not subject to rates etc. (1) Subject to subsection (2), no rate, tax, or assessment is to be imposed, levied, charged or made upon any land acquired by the Commission under and for the purposes of this Act while the Commission is the owner of the land. 15 (2) If any land referred to in subsection (1) is leased by the Commission, the Commission is to pay in respect of the land out of the rent received by the Commission, the whole or such portion of the amount of any rate, tax, or assessment that would but for this section have been imposed, levied, charged or made 20 on the land so leased, as the Commission certifies in writing to be available for the purpose. Division 4 -- Financial provisions relating to local governments 210. Apportionment of expenses between local governments (1) The Minister may order that any part of the expenses incurred 25 by a local government under this Act, or under any local planning scheme, are to be borne by another local government (the "other local government"). (2) An amount ordered under subsection (1) is taken to be a debt due to the local government that incurred the expenses by the 30 other local government. page 154 Planning and Development Bill 2004 Financial provisions Part 12 Financial provisions relating to local governments Division 4 s. 210 (3) In fixing the amount to be borne by the other local government the Minister is to have regard to the proportion of the expenses incurred in respect of anything done within the district of the other local government in relation to a local planning scheme, 5 and the ratio of that proportion to the whole expense under this Act in relation to the scheme, and such other matters as are prescribed by the regulations. (4) A local government may appeal to the Supreme Court against any order of the Minister under this section, subject to the Rules 10 of Court regulating the procedure to be adopted for the purpose of any such appeal. page 155 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 1 Enforcement s. 211 Part 13 -- Enforcement and legal proceedings Division 1 -- Enforcement 211. Minister may give orders to local government (1) A person aggrieved by -- 5 (a) the failure of a local government to enforce or implement effectively the observance of a local planning scheme; or (b) the failure of a local government to execute any works which, under a local planning scheme or this Act, the 10 local government is required to execute, may make representations to the Minister. (2) The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the 15 Tribunal for its report and recommendations. (3) For the purposes of making a report and recommendations on a referral under subsection (2), Part 14 applies with such modifications as may be necessary, as if the referral were an appeal. 20 (4) On receiving a report and recommendations from the Tribunal, the Minister may order the local government -- (a) to do all things necessary for enforcing the observance of the scheme or any of the provisions of the scheme; or (b) to do all things necessary for executing any works 25 which, under the scheme or this Act the local government is required to execute, as the case requires. (5) The Minister is not bound by the report and recommendations of the Tribunal. page 156 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Enforcement Division 1 s. 212 (6) The local government may within 28 days of service of the order appeal against the order to a Judge who may -- (a) confirm, vary or annul the Minister's order; and (b) make such order as to costs of the appeal as the Judge 5 thinks proper. (7) The decision of the Judge is final and enforceable as an order of judgment of the Supreme Court. (8) Subject to any rules made by the Governor -- (a) the proceedings on an appeal are to be as the Judge 10 directs; and (b) subject to the direction of the Judge may, as regards the summoning and attendance of witnesses, the production of documents and costs, be regulated by the appropriate Rules of the Supreme Court, with appropriate 15 adaptations and alterations. 212. Minister may assume powers of local government or enforce review decision (1) If the Minister is satisfied that a local government has failed to -- 20 (a) comply with an order under section 76; (b) comply with a provision of Part 5 Division 5; (c) comply with an order under section 211; or (d) comply with a provision of regulations made under section 285, 25 the Minister may serve written notice on the local government under this section. (2) The notice is to -- (a) set out the relevant order or provision and the manner in which the local government has failed to comply with it; page 157 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 1 Enforcement s. 212 (b) specify a period (which is not to be less than 60 days after the notice is served) before which the local government is required to comply with the relevant order or provision; and 5 (c) advise the local government that the Minister intends to exercise the powers conferred by subsection (3) if the local government does not comply with the requirement made under paragraph (b). (3) If the local government does not comply with the requirement 10 made under subsection (2)(b), the Minister may take all such steps and prepare or cause to be prepared all such documents as are necessary for compliance with the requirement as if the Minister were the local government. (4) For the purposes of subsection (3), the Minister may by order 15 direct the local government to provide the Minister with such reports or other information specified in the order as are necessary for the exercise of the Minister's powers under this section. (5) The Minister is to cause a copy of an order directed to a local 20 government under subsection (4) to be served on the local government, and the local government is to comply with the order. (6) For the purposes of subsection (3), the provisions of the regulations that would have applied to the local government 25 apply to the Minister with such modifications as are necessary or are prescribed. (7) All costs, charges and expenses incurred by the Minister in the exercise of any powers conferred by subsection (3) may be recovered from the local government as a debt due to the Crown 30 or may be deducted from any moneys payable by the Crown to the local government. page 158 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Enforcement Division 1 s. 213 213. Effect of amendment, scheme, consolidation or repeal prepared by Minister (1) When the Minister exercises powers conferred under section 212 and prepares or causes to be prepared and published 5 in the Gazette -- (a) an amendment to a local planning scheme; (b) a local planning scheme, incorporating, if necessary, any modifications to, or conditions on, the scheme; (c) a consolidated local planning scheme; or 10 (d) the repeal of a local planning scheme, that amendment, scheme, scheme as modified or with conditions, consolidation or repeal, as the case may be, has effect as if it were made, published and adopted by the local government and approved by the Minister and the local 15 government is to implement it accordingly. (2) A reference in this or any other Act to -- (a) an amendment to a local planning scheme is to be read and construed as including a reference to an amendment to a local planning scheme prepared or caused to be 20 prepared by the Minister under section 212; and (b) a local planning scheme is to be read and construed as including a reference to a local planning scheme prepared or caused to be prepared by the Minister in accordance with section 212. 25 214. Directions by responsible authority regarding unauthorised development (1) For the purposes of subsections (2) and (3) -- (a) a development is undertaken in contravention of a planning scheme or an interim development order if the 30 development -- (i) is required to comply with the planning scheme or interim development order; and page 159 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 1 Enforcement s. 214 (ii) is commenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition 5 imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order; (b) a development is undertaken in contravention of 10 planning control area requirements if the development -- (i) is commenced, continued or carried out in a planning control area without the prior approval of that development obtained under section 116; 15 or (ii) is commenced, continued or carried out otherwise than in accordance with the approval referred to in subparagraph (i) or otherwise than in accordance with the conditions, if any, subject 20 to which that approval is given. (2) If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the 25 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 planning scheme, interim development order or planning control area requirements. 30 (3) If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -- 35 (a) to remove, pull down, take up, or alter the development; and page 160 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Enforcement Division 1 s. 215 (b) to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority. (4) The responsible authority may give directions under 5 subsections (2) and (3)(a) and (b) in respect of the 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 planning scheme or interim development order would prejudice the effective 10 operation of the planning scheme or interim development order, the responsible authority may give a written direction 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, 15 being not less than 60 days after the service of the direction, within which the direction is to be complied with. (7) A person who -- (a) fails to comply with a direction given to the person under subsection (2); or 20 (b) fails to comply with a direction given to the 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. 25 215. Responsible authority may remove or alter unauthorised development (1) If -- (a) a notice is served on a person under section 214(2), 214(3) or 214(5) and that person fails to -- 30 (i) carry out the directions within the time specified in the notice; or page 161 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 1 Enforcement s. 216 (ii) appeal under section 282 against any direction contained in the notice; or (b) on an appeal by that person against any direction 5 contained in the notice, the direction is confirmed or varied and the owner fails to carry out the direction as confirmed or varied within the time specified by the Tribunal in the notice given under section 282(2), the responsible authority may itself remove, pull down, take up 10 or alter the development, restore the land as nearly as practicable to its condition immediately before the development started, or execute that work, as it directed that person. (2) Any expenses incurred by a responsible authority under subsection (1) may be recovered from the person to whom the 15 direction was given as a debt due in a court of competent jurisdiction. 216. Injunction (1) Without prejudice to any proceeding for an offence against this Act, if -- 20 (a) a person contravenes a provision of this Act, an interim development order or a planning scheme; or (b) a responsible authority grants an application for approval of development subject to conditions and the development is commenced, continued or completed 25 contrary to or otherwise than in accordance with any condition imposed by the responsible authority with respect to the development, the Supreme Court may, on application by the responsible authority, grant an injunction -- 30 (c) if the application is with respect to a contravention of the Act, an interim development order or a planning scheme, restraining the person from engaging in any conduct or doing any act, that constitutes or is likely to page 162 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Enforcement Division 1 s. 217 constitute a contravention of this Act, the interim development order or the planning scheme; (d) if the application is with respect to the commencement, continuation or completion of a development contrary to 5 or otherwise than in accordance with any condition imposed by the responsible authority with respect to the development -- (i) in the case where the development is commenced but not carried out, restraining the continuation 10 or completion of the development or any use of the development; or (ii) in the case where the development is completed, restraining the use of the development, until the condition is complied with. 15 (2) An injunction granted under subsection (1) -- (a) has effect for the period specified in the injunction or until further order of the Court; and (b) may be varied or rescinded by the Court. 217. Powers of Minister to ensure that environmental conditions 20 are met (1) In this section -- "assessed scheme" means a planning scheme, or an amendment to a planning scheme, that is an assessed scheme within the meaning of the EP Act; 25 "environmental condition" means a condition agreed under section 48F of the EP Act or decided under section 48I of the EP Act; "environmental harm" has the same meaning as it has in the EP Act; 30 "pollution" has the same meaning as it has in the EP Act. page 163 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 1 Enforcement s. 217 (2) After receiving advice from the Minister for the Environment under section 48H(4) of the EP Act the Minister may exercise one or more of the powers set out in subsection (3) in relation to a development implementing an assessed scheme. 5 (3) For the purposes of subsection (2) the Minister may -- (a) by order in writing served on the person who is undertaking the development, direct the person to stop doing so for such period, beginning immediately and lasting not more than 24 hours, as is specified in the 10 order; (b) cause the responsible authority to serve a notice on the person who is undertaking the development directing the person to take such steps as are specified in the notice, within such period as is so specified for the purpose 15 of -- (i) complying with; or (ii) preventing non-compliance with, the environmental condition to which the Minister for the Environment's advice relates; or 20 (c) advise the responsible authority to cause such steps to be taken as are necessary for the purpose of -- (i) complying with; or (ii) preventing non-compliance with, the environmental condition to which the Minister for 25 the Environment's advice relates. (4) A person who fails to comply with an order or notice served on the person under subsection (3)(a) or (b) commits an offence. (5) Nothing in this section prevents or otherwise affects the application of Part V of the EP Act to -- 30 (a) a development referred to in subsection (2); or (b) pollution or environmental harm caused by any non-compliance with an environmental condition referred to in subsection (3). page 164 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Offences Division 2 s. 218 Division 2 -- Offences 218. Contravention of planning scheme A person who -- (a) contravenes the provisions of a planning scheme; 5 (b) commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme otherwise than in accordance with the provisions of the planning scheme; or 10 (c) commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply 15 with any such condition, commits an offence. 219. Unauthorised subdivision works (1) A person who commences, continues or carries out works for the purpose of enabling the subdivision of land otherwise 20 than -- (a) as shown on a plan of subdivision approved by the Commission; or (b) as required by the Commission to be carried out as a condition of approval of the plan of subdivision, 25 commits an offence. (2) It is a defence to a charge of an offence under subsection (1) to show that the person has development approval or other lawful authority to commence, continue or carry out the works. page 165 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 2 Offences s. 220 220. Development in planning control area without prior approval A person who commences, continues or carries out development in a planning control area except -- 5 (a) with the prior approval of that development obtained under section 116; and (b) in a manner which is in conformity with the approval referred to in paragraph (a) and in accordance with the conditions, if any, subject to which that approval is 10 given, commits an offence. 221. Contravention of interim development order A person who -- (a) contravenes an interim development order; or 15 (b) commences, continues or carries out any development which is required to comply with an interim development order otherwise than in accordance with -- (i) the interim development order; or (ii) any condition imposed in respect of that 20 development by the Commission or the local government administering that order under its powers under the order, commits an offence. 222. Development in heritage place without approval 25 A person who commences, continues or carries out any development, or causes or permits any development to be commenced, continued or carried out, affecting land to which section 163 applies except -- (a) with the prior approval of that development obtained 30 under section 163; and page 166 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Offences Division 2 s. 223 (b) in a manner which is in conformity with the approval referred to in paragraph (a) and in accordance with the conditions, if any, subject to which that approval was given, 5 commits an offence. 223. Penalty for offence Unless otherwise provided, a person who commits an offence under this Act is liable to a penalty of $50 000 and, in the case of a continuing offence, a further fine of $5 000 for each day 10 during which the offence continues. 224. Other enforcement provisions not affected (1) This Division does not prejudice or affect the operation of sections 214, 215 or 216. (2) A person may be prosecuted for an offence under this Division 15 irrespective of whether or not a direction has been given under section 214. 225. Onus of proof in vehicle offence may be shifted (1) In this section -- "vehicle offence" means an offence against section 220 of 20 which the parking, standing or leaving of a vehicle is an element. (2) Where a vehicle offence is alleged to have been committed and the identity of the person committing the alleged offence is not known and cannot immediately be ascertained an officer of the 25 relevant responsible authority who is a designated person under section 228 may give the owner of the vehicle a notice under this section. (3) The notice is to be in the form prescribed in the regulations and is to contain particulars of the alleged offence and require the 30 owner to identify the person who was the driver or person in charge of the vehicle at the time when the offence is alleged to have been committed. page 167 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 3 Infringement notices s. 226 (4) The notice may be addressed to the owner of the vehicle without naming, or stating the address of, the owner and may be given by -- (a) attaching it to the vehicle or leaving it in or on the 5 vehicle at or about the time that the alleged offence is believed to have been committed; or (b) giving it to the owner within 21 days after the alleged offence is believed to have been committed. (5) The notice is to include a short statement of the effect of 10 subsection (6). (6) Unless, within 28 days after being served with the notice, the owner of the vehicle -- (a) informs the responsible authority or an officer of the responsible authority authorised for the purposes of this 15 paragraph as to the identity and address of the person who was the person in charge of the vehicle at the time the offence is alleged to have been committed; or (b) satisfies the responsible authority that the vehicle had been stolen or unlawfully taken, or was being 20 unlawfully used, at the time the offence is alleged to have been committed, the owner is, in the absence of proof to the contrary, deemed to have committed the offence. Division 3 -- Infringement notices 25 226. Interpretation In this Division -- "alleged offender" means a person who or which is suspected of having committed an offence under this Act or under regulations made under this Act; 30 "designated person" in section 228, 229, 230 or 231 means a person appointed under section 234 to be a designated page 168 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Infringement notices Division 3 s. 227 person for the purposes of the section in which the term is used; "prescribed offence" means an offence prescribed under section 227(1). 5 227. Prescribed offences (1) The regulations may prescribe an offence under this Act, or under any regulations made under this Act, to be an offence for which an infringement notice may be issued under this Division. (2) For each prescribed offence the regulations must prescribe -- 10 (a) a modified penalty applicable in whatever the circumstances in which the offence is committed; or (b) a modified penalty applicable if the offence is committed in circumstances specified in the regulations. (3) The modified penalty for an offence is not to exceed 20% of the 15 maximum penalty that could be imposed for that offence by a court. 228. Giving of infringement notice (1) A designated person who has reason to believe that a person has committed a prescribed offence may give an infringement 20 notice to the alleged offender. (2) The notice must be given within 6 months after the alleged offence is believed to have been committed. 229. Content of infringement notice (1) An infringement notice is to be in the prescribed form and is 25 to -- (a) contain a description of the alleged offence; (b) specify the amount of the modified penalty for the offence; (c) advise that if the alleged offender does not wish to have 30 a complaint of the alleged offence heard and determined page 169 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 3 Infringement notices s. 230 by a court, that amount may be paid to a designated person within a period of 28 days after the giving of the notice; and (d) inform the alleged offender as to who are designated 5 persons for the purposes of receiving payment of modified penalties. (2) The amount referred to in subsection (1)(b) is to be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed. 10 230. Extension of time A designated person may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed. 15 231. Withdrawal of infringement notice (1) A designated person may, whether or not the modified penalty has been paid, withdraw an infringement notice by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn. 20 (2) If an infringement notice is withdrawn after the modified penalty has been paid, the amount is to be refunded. 232. Benefit of paying modified penalty (1) Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within 28 days or such further 25 time as is allowed and the notice has not been withdrawn. (2) If this subsection applies it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence. page 170 Planning and Development Bill 2004 Enforcement and legal proceedings Part 13 Infringement notices Division 3 s. 233 (3) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal. 233. Application of penalties collected 5 An amount paid as a modified penalty is, subject to section 231(2), to be dealt with as if it were a penalty imposed by a court as a penalty for an offence. 234. Appointment of designated persons (1) The chief executive officer of a responsible authority may, in 10 writing, appoint persons or classes of persons to be designated persons for the purposes of section 228, 229, 230 or 231 or for the purposes of 2 or more of those sections. (2) A person who is authorised to give infringement notices under section 228 is not eligible to be a designated person for the 15 purposes of any of the other sections. 235. Notice placing onus on vehicle owner (1) If an alleged offence is one for which a notice under section 225 can be given to the owner of a vehicle involved in the commission of the offence, that notice can be included in the 20 same document as an infringement notice given to the owner for the alleged offence. (2) For the purpose of giving the vehicle owner an infringement notice that is with a notice under section 225 -- (a) it is a sufficient ground for believing the owner to have 25 committed the alleged offence that the person is the owner; and (b) the infringement notice may be addressed and given as specified in section 225(4). page 171 Planning and Development Bill 2004 Part 13 Enforcement and legal proceedings Division 3 Infringement notices s. 235 (3) Where the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed, section 225(6) does not have effect to deem the owner to have committed the offence. 5 (4) The statement required by section 225(5) is to include a description of the effect of subsection (3) if an infringement notice is given with a notice under section 225. page 172 Planning and Development Bill 2004 Appeals Part 14 Establishment of Tribunal Division 1 s. 236 Part 14 -- Appeals Division 1 -- Establishment of Tribunal 236. Establishment of Town Planning Appeal Tribunal (1) A tribunal called the Town Planning Appeal Tribunal is 5 established. (2) The Tribunal is to have a seal. 237. Members of Tribunal (1) The Governor is to appoint as members of the Tribunal -- (a) a President; 10 (b) a deputy President; (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 15 deal with appeals. (3) A Tribunal member may be appointed on a full-time or part-time basis. 238. Qualifications of members (1) Each Tribunal member is to be a person who, in the opinion of 20 the Minister, has knowledge of and experience in one 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. 25 (2) As far as practicable, the Tribunal members are to between them have knowledge and experience covering all of the fields mentioned in subsection (1). page 173 Planning and Development Bill 2004 Part 14 Appeals Division 2 How Tribunal is constituted s. 239 (3) A person is not to hold office as a Tribunal 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. 5 (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 Minister, extensive 10 knowledge, or experience, in relation to a class of matter which may be dealt with by the Tribunal. 239. Further provisions concerning Tribunal members Schedule 10 has effect with respect to the tenure, remuneration and conditions of service of the Tribunal members and other 15 matters provided for in that Schedule. Division 2 -- How Tribunal is constituted 240. President determines how Tribunal is constituted (1) Subject to this section, the President is to determine how the Tribunal is to be constituted for the purposes of each appeal. 20 (2) For the purposes of each appeal the Tribunal is to be constituted by one Tribunal member or by 3 Tribunal members. (3) Subject to a direction given under subsection (4), an appeal -- (a) against -- (i) the determination of, or conditions imposed in 25 respect of, a development application to commence a development of a value of less than $250 000 or such other amount as is prescribed by the regulations; page 174 Planning and Development Bill 2004 Appeals Part 14 How Tribunal is constituted Division 2 s. 240 (ii) the determination of, or conditions imposed in respect of, a development application to commence a development of a single house on a single lot where the development is of a value of 5 less than $500 000 or such other amount as is prescribed by the regulations, or any development ancillary to that development; or (iii) the determination of, or conditions imposed in respect of, an application for approval to 10 subdivide a lot into not more than 3 lots; or (b) where the applicant, with the agreement of each other party, has elected at the time of commencing the appeal to have the appeal determined by an ordinary member 15 sitting alone, is to be determined by the Tribunal constituted by a single ordinary member. (4) If the President is of the opinion that the appeal is likely to raise complex or significant planning issues, the President may direct 20 that the appeal is to be determined by the Tribunal constituted by a Tribunal member who is not an ordinary member or by the Tribunal constituted by 3 Tribunal members. (5) When dealing with an appeal to the Tribunal against a decision referred to in section 281 or a decision relating to an 25 environmental condition, the Tribunal is to be constituted by -- (a) a Tribunal member who has knowledge of and experience in the field of environmental science; or (b) 3 Tribunal members, of whom at least one is to have knowledge of and experience in the field of 30 environmental science. (6) There may be more than one sitting of the Tribunal at the same time. page 175 Planning and Development Bill 2004 Part 14 Appeals Division 3 The Principal Registrar and other officers s. 241 241. President responsible for administration Subject to this Act, the regulations and the rules, the President -- (a) is to direct the business of the Tribunal; 5 (b) is responsible for the management of the administrative affairs of the Tribunal; and (c) may determine the places and times for sittings of the Tribunal. 242. Delegation by President 10 (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 President or the Principal Registrar any function of the President under this Act, the regulations or the rules. 15 (2) The President is not to delegate his or her functions under section 263 or 266 to a Tribunal member or to the Principal Registrar unless that person is a legal practitioner. Division 3 -- The Principal Registrar and other officers 243. Principal Registrar 20 (1) The Minister may appoint a person as Principal Registrar of the Tribunal. (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 25 Act 1994. (3) The Principal Registrar -- (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. page 176 Planning and Development Bill 2004 Appeals Part 14 The Principal Registrar and other officers Division 3 s. 244 (4) The Principal Registrar may be appointed as a senior member of the Tribunal. (5) Schedule 11 has effect with respect to the tenure, remuneration and conditions of service of the Principal Registrar and the other 5 matters provided for in that Schedule. 244. President may give Principal Registrar directions (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 10 to a particular matter, and the Principal Registrar is to give effect to any such 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 Tribunal member, if the 15 Principal Registrar is a Tribunal member. 245. 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 20 (b) such other officers as are necessary to assist in the administration of the Tribunal. 246. Functions of the Registrar The Registrar is to -- (a) assist the Principal Registrar in the administration of the 25 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 given for those decisions. page 177 Planning and Development Bill 2004 Part 14 Appeals Division 4 Proceedings of the Tribunal s. 247 Division 4 -- Proceedings of the Tribunal 247. Appeals to the Tribunal (1) A person may appeal, or refer a matter, to the Tribunal if a right to appeal, or refer a matter, under this Part is conferred on the 5 person by -- (a) this Act or any planning scheme in force under this Act; (b) the Heritage of Western Australia Act 1990; (c) the Strata Titles Act 1985; (d) the East Perth Redevelopment Act 1991; 10 (e) the Subiaco Redevelopment Act 1994; (f) the Midland Redevelopment Act 1999; (g) the Hope Valley-Wattleup Redevelopment Act 2000; (h) the Armadale Redevelopment Act 2001; or (i) any other written law. 15 (2) Where a person is entitled under the provisions of a planning scheme in force under this Act 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 planning 20 scheme that provides for the appeal to be otherwise made. 248. Commencement of appeal An appeal is commenced by giving notice, including the grounds of appeal, in the time and manner prescribed, to the persons and bodies prescribed. 25 249. Notice of hearings (1) The Principal Registrar is to give notice, in accordance with the regulations or rules, of the time and place for the hearing of the appeal to -- (a) each party to the appeal; and page 178 Planning and Development Bill 2004 Appeals Part 14 Proceedings of the Tribunal Division 4 s. 250 (b) each other person entitled to notice under the regulations or rules. (2) If a person, including a party, to whom notice has been given in accordance with the regulations or rules fails to attend, the 5 hearing may be held in the absence of that party. 250. Determination of appeals (1) On an appeal the Tribunal may by order -- (a) affirm the determination or direction appealed against; (b) vary the determination or direction appealed against; 10 (c) set aside the determination or direction appealed against; or (d) set aside the determination or direction appealed against and make another determination or direction in substitution for it. 15 (2) The Tribunal may also make any incidental or ancillary 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. 251. Procedure of the 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; page 179 Planning and Development Bill 2004 Part 14 Appeals Division 4 Proceedings of the Tribunal s. 251 (e) is to deal with each appeal with as little formality and technicality, and determine each appeal with as much speed, as the requirements of this Act, the regulations and the rules and a proper consideration of the matter 5 before it permit; and (f) subject to this Act, the regulations and the rules, may deal with appeals, and receive submissions and representations in relation to any appeal before it, as it thinks fit. 10 (2) Without limiting subsection (1)(a), the Tribunal is to ensure that each party to an appeal before it is given a reasonable opportunity to -- (a) present the case of that party; (b) inspect any document to which the Tribunal proposes to 15 have regard in making a determination in that appeal; and (c) 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. 20 (4) If the Tribunal is satisfied that it is desirable to do so 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 by it, must not be published except in the manner and to the persons 30 (if any) specified by the Tribunal. page 180 Planning and Development Bill 2004 Appeals Part 14 Proceedings of the Tribunal Division 4 s. 252 (6) The Tribunal may make an order under subsection (5) if the Tribunal considers that it is necessary to do so -- (a) to avoid prejudicing the administration of justice; (b) to avoid the publication of confidential information; or 5 (c) for any other reason in the interests of justice or safety. (7) If the parties to an appeal agree, the Tribunal may 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. 10 252. Failure to comply with summons or requirement of Tribunal (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. 15 Penalty: $5 000. (2) A person required by the Tribunal to produce any documents, plans or other papers in the custody or control of the person must not, without reasonable excuse, fail to comply with the requirement. 20 Penalty: $25 000. (3) A person appearing before the Tribunal must not, without reasonable excuse -- (a) when required either to take an oath or make an affirmation -- refuse or fail to comply with the 25 requirement; or (b) refuse or fail to answer a question that he or she is required to answer by the Tribunal member presiding. Penalty: $10 000. page 181 Planning and Development Bill 2004 Part 14 Appeals Division 4 Proceedings of the Tribunal s. 253 253. False or misleading evidence A person must not give evidence to the Tribunal that the person knows is false or misleading. Penalty: $25 000. 5 254. Offences against Tribunal A person must not -- (a) interrupt the proceedings of the Tribunal; (b) insult the Tribunal or a Tribunal member; or (c) create a disturbance, or take part in creating or 10 continuing a disturbance, in or near a place where the Tribunal is sitting. Penalty: $10 000. 255. Protection of Tribunal members, practitioners, witnesses and others 15 (1) A Tribunal member has, in the performance of his or her functions as a Tribunal 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. (2) A person representing a party before the Tribunal has the same 20 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 immunity as a party to proceedings in the Supreme Court. (4) A person appearing as a witness before the Tribunal has the 25 same protection as a witness in proceedings in the Supreme Court. page 182 Planning and Development Bill 2004 Appeals Part 14 Proceedings of the Tribunal Division 4 s. 256 256. 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 decision or 5 order of the Tribunal and purporting to be certified by the Registrar of the Tribunal 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 the 10 Registrar on a certificate mentioned in paragraph (a). 257. Who presides Where the Tribunal is constituted by more than one Tribunal member -- (a) if the President is a member, the President presides; 15 (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 is a member but a senior member is, the senior member presides or, if there is more than one, then the senior 20 member nominated by the President for this purpose presides; and (d) if the members are all ordinary members, then the member nominated by the President for this purpose presides. 25 258. Representation (1) A party to an appeal may -- (a) appear personally; or (b) subject to subsection (4) be represented by an agent or legal practitioner. page 183 Planning and Development Bill 2004 Part 14 Appeals Division 4 Proceedings of the Tribunal s. 259 (2) A person making a submission under section 262 may -- (a) appear personally; or (b) be represented by an agent or, if any party to the appeal is entitled to be so represented, by a legal practitioner. 5 (3) An appellant in an appeal described in section 240(3)(a) may, at the time the appeal is commenced, elect that no party to the appeal is to be represented by a legal 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 10 unless -- (a) the President has given a direction under section 240(4) in respect of the appeal; (b) the President, having regard to whether the appeal involves a question of law, directs in any other case that 15 the parties may be so represented; (c) the appellant is a legal practitioner; or (d) the appellant withdraws the election. 259. Powers with respect to witnesses and evidence The Tribunal may -- 20 (a) summon a person required by a party or by the Tribunal to give evidence before it; (b) examine a person on oath or affirmation; or (c) require a person to produce any documents, plans or other papers in the custody or control of the person. 25 260. 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 281 or a decision relating to an environmental condition, the Tribunal is to invite the Minister 30 for the Environment to make a submission in respect of that appeal. page 184 Planning and Development Bill 2004 Appeals Part 14 Proceedings of the Tribunal Division 4 s. 261 261. Tribunal to have regard to certain matters (1) In determining an appeal in accordance with this Part the Tribunal is to have due regard to relevant planning considerations including -- 5 (a) any State planning policy which may affect the subject matter of the appeal; and (b) any management programme for the time being in force under Part 3 of the Swan River Trust Act 1988 which may affect the subject matter of the appeal. 10 (2) In the case of an appeal that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the Tribunal -- (a) is to refer the matter to the Heritage Council for advice; 15 (b) may receive and hear submissions made on 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 20 Western Australia Act 1990. (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, the Tribunal may have regard to claims of hardship raised by the appellant and proved 25 to the satisfaction of the Tribunal, if the Tribunal is of the opinion that such regard will not affect the application of sound planning principles. 262. Submissions from persons who are not parties The Tribunal may receive or hear submissions in respect of an 30 appeal from a person who is not a party to the appeal if the Tribunal is of the opinion that the person has a sufficient interest in the appeal. page 185 Planning and Development Bill 2004 Part 14 Appeals Division 4 Proceedings of the Tribunal s. 263 263. Questions of law If the Tribunal is constituted without a member who is a legal practitioner, a question of law arising in the appeal may be decided in accordance with the opinion of the President. 5 264. Written reasons for determination and publication of reasons The Tribunal is to -- (a) give each party to an appeal written reasons for the determination of the Tribunal on the appeal; 10 (b) publish those reasons in the manner prescribed by the regulations; and (c) upon payment of a fee determined in the manner prescribed by the regulations, supply a copy of those reasons to any other person. 15 265. 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). (2) Where in the opinion of the Tribunal a party to an appeal has 20 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. (3) The Tribunal may award such costs as it thinks fit against an 25 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 costs from the party against whom the order was made in a court of competent 30 jurisdiction. page 186 Planning and Development Bill 2004 Appeals Part 14 Proceedings of the Tribunal Division 4 s. 266 266. Review by President (1) The Tribunal constituted by the President may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter 5 involving a question of law that was made by the Tribunal when constituted without a member who is a legal practitioner. (2) The Tribunal constituted by the President may -- (a) affirm the direction, determination or order; or (b) revoke the direction, determination or order and 10 substitute another direction, determination or order that the Tribunal could have made in relation to that matter. (3) An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations and rules by a party within 15 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 question of law if the President has given an opinion on that question of law. 20 (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 order is given to the party; or (b) on the application of a party is not to be made later than 25 one month after the application is made. 267. Appeal to Supreme Court on question of law (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 30 the direction, determination or order. page 187 Planning and Development Bill 2004 Part 14 Appeals Division 5 Intervention by Minister s. 268 (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 5 Supreme Court. (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. 268. Determination of Tribunal final 10 On an appeal to the Tribunal the determination of the Tribunal is final except as provided in sections 266 and 267. Division 5 -- Intervention by Minister 269. Minister may make submissions (1) If it appears to the Tribunal that an appeal may be determined in 15 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 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. 20 (2) Irrespective of whether or not there has been an invitation under subsection (1), if 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 25 the matters which the 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 made at any time before the 30 determination of the appeal. page 188 Planning and Development Bill 2004 Appeals Part 14 Intervention by Minister Division 5 s. 270 (4) When a written submission has been made by the Minister, a copy is to be given by the Tribunal to the parties who are in any case to be given an opportunity of making further submissions to the Tribunal. 5 (5) In this section -- (a) where the area in which the land the subject of the appeal is situated includes or comprises land or waters that are within or abut the management area within the meaning of the Swan River Trust Act 1988, "Minister" 10 includes the Minister to whom the administration of that Act is committed; and (b) where the area in which the land the subject of the appeal is situated includes, or is included in, or abuts any land or water to which an entry in the Register 15 maintained under section 46 of the Heritage of Western Australia Act 1990 relates, "Minister" includes the Minister to whom the administration of that Act is committed. 270. Minister may call in appeal 20 (1) This section applies to an appeal if the Minister 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 -- 25 (a) the Principal Registrar to refer an appeal to which this section applies to the Minister for determination; or (b) the Tribunal to hear the appeal but, without determining it, to refer it with recommendations to the Minister for determination. 30 (3) The Minister cannot give a direction under subsection (2) -- (a) in respect of an appeal made to the Tribunal under the Heritage of Western Australia Act 1990; page 189 Planning and Development Bill 2004 Part 14 Appeals Division 5 Intervention by Minister s. 271 (b) more than 14 days after notice of the appeal was lodged with the Tribunal; or (c) after a final determination has been made in relation to the appeal. 5 (4) The Minister, within 14 days after a direction is given, is to cause a copy of it to be published in the Gazette and, as soon as is practicable, is to cause a copy of it to be laid before, or transmitted in accordance with section 272(1) to the Clerk of each House of Parliament. 10 (5) If the Minister gives a direction under subsection (2)(a), each party to the proceeding may present the case of that party to the Minister. (6) The Minister is to have regard to the submissions of the parties and may have regard to any other submission received by the 15 Minister. (7) A copy or transcript of any submission to which the Minister has regard is to be -- (a) given to each party; and (b) published in the manner prescribed by the regulations. 20 271. Determination of appeal by Minister (1) In determining an appeal the Minister is not limited to planning considerations but may make the determination having regard to any other matter affecting the public interest. (2) When the Minister determines an appeal that determination has 25 effect according to its tenor. (3) When an appeal is referred to the Minister under section 270(2)(b) the Principal Registrar is to -- (a) give a copy of the recommendations that accompanied the referral to each party within a reasonable time after 30 the referral; and page 190 Planning and Development Bill 2004 Appeals Part 14 Miscellaneous Division 6 s. 272 (b) make a copy of the recommendations available during office hours for inspection by any person without charge. (4) The Minister is to -- 5 (a) give to each party written reasons for the determination of the Minister on the appeal; (b) as soon as is practicable, cause a copy of those reasons to be laid before each House of Parliament; and (c) upon payment of a fee determined in the manner 10 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 272. Laying before House of Parliament that is not sitting 15 (1) If section 270(4) requires the Minister, as soon as is practicable, to cause a copy of a direction to be laid before, or transmitted in accordance with this subsection to the Clerk of each House of Parliament, and -- (a) at the commencement of the period of 14 days after the 20 day on which the direction is given, a House of Parliament is not sitting; and (b) the Minister is of the opinion that the House will not sit during that period, the Minister is to transmit a copy of the direction to the Clerk of 25 that House. (2) A copy of a direction transmitted to the Clerk of a House is to be regarded as having been laid before that House. (3) The laying of a copy of a direction that is to be regarded as having occurred under subsection (2) is to be recorded in the 30 Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy. page 191 Planning and Development Bill 2004 Part 14 Appeals Division 6 Miscellaneous s. 273 273. Judicial notice of seal and signatures All courts, judges and persons acting judicially are to take notice of -- (a) the seal of the Tribunal; 5 (b) the signature of the President, deputy President, any other Tribunal member and the Principal Registrar; and (c) the fact that that person is or was the President, deputy President, Tribunal member or Principal Registrar, as the case may be, at the relevant time. 10 274. Immunity of Tribunal and officers No liability attaches to a Tribunal 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 that person's functions, or 15 the functions of the Tribunal, under this Act. 275. Rules (1) The President is to make such rules under this Act regulating -- (a) the practice and procedure to be followed in, or for the purposes of, an appeal; 20 (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 conciliation; and (d) any other matters, 25 as are necessary or convenient for the efficient operation of the Tribunal. (2) Without limiting subsection (1), the rules may empower the Tribunal to make and enforce such orders as it thinks necessary with respect to interlocutory and procedural matters, and for 30 those purposes the rules may apply all or any of the Rules of the Supreme Court 1971. page 192 Planning and Development Bill 2004 Appeals Part 14 Decisions which may be appealed Division 7 s. 276 (3) Section 42 of the Interpretation Act 1984 applies to rules made under this section. Division 7 -- Decisions which may be appealed 276. Appeal against decision under interim development order 5 (1) Subject to subsection (2), if an applicant for approval under section 103(2) is aggrieved by the refusal to grant the approval or by the conditions subject to which the approval is granted, the applicant may appeal under this Part. (2) No appeal is to be made or heard in respect of a development 10 that contravenes a provision of -- (a) a local planning scheme; (b) a local law of a local government that is not superseded by the interim development order; or (c) an Order made under Part 6, or Order in Council made 15 under section 80, of the Heritage of Western Australia Act 1990. 277. Appeal against decision in respect of development in planning control area (1) An applicant whose application has under section 115 been -- 20 (a) approved subject to conditions which are unacceptable to the applicant; or (b) refused, may appeal against that approval or refusal under this Part. (2) An appeal under subsection (1) in relation to any condition 25 which is imposed in consequence of advice given by the Heritage Council or by the operation of section 78 of the Heritage of Western Australia Act 1990 is to be referred to the Heritage Council for advice, and section 261 applies in relation to the appeal. page 193 Planning and Development Bill 2004 Part 14 Appeals Division 7 Decisions which may be appealed s. 278 278. Appeal against certain decisions under Part 10 (1) An applicant may appeal under this Part against a decision of the Commission to refuse to approve any plan, application for title, transfer, conveyance, lease, license to use and occupy, or 5 mortgage, in respect of which an application was made to the Commission. (2) An applicant may appeal under this Part against conditions affixed to the granting of an approval referred to in subsection (1). 10 (3) An applicant who makes a request under section 144(1) or 151(1) may appeal under this Part against a decision of the Commission made under section 144(2) or 151(2). (4) An applicant given approval of a plan of subdivision who is aggrieved by the Commission's decision to refuse to endorse its 15 approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may appeal under this Part against the decision of the Commission. (5) If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the 20 approval of the plan of subdivision has not been complied with, an appeal under subsection (4) may include an appeal against that condition. 279. Appeal against exercise of discretionary power under a planning scheme 25 (1) Subject to subsection (3), if -- (a) under a local planning scheme or a region planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; 30 (b) a person has applied to the responsible authority for such a grant; and page 194 Planning and Development Bill 2004 Appeals Part 14 Decisions which may be appealed Division 7 s. 280 (c) the responsible authority has -- (i) refused the application; or (ii) granted it subject to any condition, the applicant may appeal under this Part against the responsible 5 authority's decision. (2) Subject to subsections (1) and (3), an applicant may appeal under this Part against the responsible authority's decision under a local planning scheme as to -- (a) the classification of a use under the local planning 10 scheme; or (b) the permissibility of a use that is not listed under the local planning scheme. (3) Subsections (1) and (2) do not affect the operation of a right of appeal given or taken to be given by a planning scheme, but 15 where rights are given or taken to be given by a planning scheme and under subsection (1) or (2), the exercise of one of those rights extinguishes the other right to appeal in respect of the same decision. 280. Notice of default for purposes of this Division 20 (1) In this section -- "applicant" includes a person making a request under section 144(1), 145(1) or 151(1); "decision period" means -- (a) in the case of an application for approval of a plan of 25 subdivision, the period of 90 days specified in section 143(2) or any longer period after that day as may be agreed between the Commission and the applicant under section 143(2); (b) in the case of an application for endorsement of 30 approval on a diagram or plan of survey, the period of 30 days specified in section 145(4) or any longer period after that day as may be agreed between the page 195 Planning and Development Bill 2004 Part 14 Appeals Division 8 Other appeals s. 281 Commission and the applicant under section 145(4); and (c) in the case of any other application, or a request, referred to in subsection (2), the period of 60 days 5 from the day on which the application or request was made, or any longer period after that day as may be agreed in writing between the responsible authority and the applicant or person so requesting. (2) If at any time after the end of the decision period the responsible 10 authority has not -- (a) approved, or refused to approve, an application referred to in section 278(1); (b) given notice of a decision on the request made under section 144(1) or 151(1); or 15 (c) endorsed, or refused to endorse, a diagram or plan of survey under section 145(3), the applicant may give written notice of default to the responsible authority. (3) Where a notice of default is given to a responsible authority 20 under subsection (2), the applicant may appeal under this Part as if the responsible authority had refused to approve the application, plan or diagram, or had refused to alter or revoke the condition, as the case requires, on the day on which the notice of default was given to the responsible authority. 25 Division 8 -- Other appeals 281. Appeal against decision under section 48I of EP Act If a responsible authority makes a decision under section 48I(3)(c) or (d) of the EP Act in respect of a proposal under an assessed scheme, the applicant promoting the proposal 30 may appeal under this Part against the decision. page 196 Planning and Development Bill 2004 Appeals Part 14 Other appeals Division 8 s. 282 282. Appeal against section 214 direction (1) A person to whom a direction is given under section 214 may appeal under this Part against the direction. (2) If the Tribunal confirms or varies the direction, it may, by 5 written notice served on the person to whom the direction was given, direct the owner to comply with the direction as so confirmed or varied, within a period of not less than 40 days after service of the notice, as is specified in the notice. (3) If the direction appealed against is confirmed or varied, the 10 person to whom the direction was given is to comply with it to the extent to which it is so confirmed or varied and within the time specified in the direction. page 197 Planning and Development Bill 2004 Part 15 Subsidiary legislation Division 1 Subsidiary legislation made by Minister s. 283 Part 15 -- Subsidiary legislation Division 1 -- Subsidiary legislation made by Minister 283. General provisions of planning schemes (1) The Minister may make regulations prescribing a set of general 5 provisions (or separate sets of general provisions adapted for areas of any special character) for carrying out the general objects of local or region planning schemes, and in particular for dealing with the matters set out in Schedule 7. (2) Where a planning scheme is made in respect of an area, any 10 general provision as amended from time to time that is -- (a) appropriate to the area; and (b) in force when the scheme comes into force, has effect as part of the scheme, except so far as the scheme provides for the variation or exclusion of that provision. 15 284. Court may order compensation in respect of certain breaches of general regulations (1) The court by or before which a person is found guilty of an offence against regulations made under section 283 in respect of a region planning scheme may, whether or not it imposes any 20 other punishment, order that the person convicted pay compensation to the Commission for the costs of any repairs rendered necessary or any loss of property suffered or expenses incurred through or by means of the offence. (2) An order made under subsection (1) may be enforced by 25 lodging a certified copy of it, and an affidavit stating to what extent it has not been complied with, with a court of competent jurisdiction. (3) When lodged, the order is to be taken to be a judgment of the court and may be enforced accordingly. page 198 Planning and Development Bill 2004 Subsidiary legislation Part 15 Subsidiary legislation made by Minister Division 1 s. 285 (4) An order made against a person under subsection (1), or the institution of proceedings or the finding of a person to be guilty under regulations made under section 283, does not affect any civil remedy against the person. 5 (5) In any civil proceedings arising from the same circumstances -- (a) any sum recovered under an order made under subsection (1) is to be taken into account in the assessment of any damages awarded; and (b) the record of any criminal proceedings under regulations 10 made under section 283 in relation to an offence is to be admissible as evidence of the matters determined in those criminal proceedings and relevant to the issues. 285. Procedure and costs for local planning schemes (1) The Minister may make regulations for regulating the procedure 15 to be observed -- (a) with respect to the preparation or adoption of a local planning scheme; (b) with respect to obtaining the approval of the Minister to a local planning scheme so prepared or adopted; 20 (c) with respect to the review, amendment or repeal of a local planning scheme; (d) with respect to any inquiries, reports, notices, or other matters required in connection with the preparation, adoption or approval of a local planning scheme, or 25 preliminary to the preparation, adoption or approval of the scheme; and (e) in relation to -- (i) the carrying out of a local planning scheme; (ii) enforcing the observance of the provisions of a 30 local planning scheme; and (iii) the review, amendment or repeal of a local planning scheme. page 199 Planning and Development Bill 2004 Part 15 Subsidiary legislation Division 1 Subsidiary legislation made by Minister s. 286 (2) Provision is to be made by the regulations for ensuring that -- (a) notice of the proposal to prepare or adopt a scheme is to be given, at the earliest stage possible, to any local government interested in the land; 5 (b) the local government of the district in which any land proposed to be included in a scheme is given -- (i) a notice of any proposal to prepare or adopt such a scheme; and (ii) a copy of the draft scheme before the scheme is 10 made; and (c) the local government is entitled to be heard at any inquiry held by the Minister in regard to the scheme. (3) Without limiting the generality of subsection (1) regulations 15 made under that subsection with regard to the amendment of a scheme may require the payment by the owner of land of the costs incurred in the publication under the regulations of any notice prescribed in the regulations relating to an amendment to a local planning scheme where the amendment is made at the 20 request of that owner and is in respect of land owned by that owner. 286. Environmental review expenses The Minister may make regulations with respect to the persons from whom, and the means by which, a responsible authority 25 may recover expenses incurred by it in undertaking an environmental review required by the EP Act under section 48C(1)(a) of the EP Act. 287. Penalties Regulations made under this Division may prescribe penalties 30 not exceeding $5 000 for offences against the regulations. page 200 Planning and Development Bill 2004 Subsidiary legislation Part 15 Subsidiary legislation made by Governor Division 2 s. 288 Division 2 -- Subsidiary legislation made by Governor 288. Local government fees (1) In this section -- "fee" includes charge; 5 "issue" includes grant, give or renew; "licence" includes registration, right, permit, authority, approval or exemption; "planning matter" means any matter arising under this Act in relation to -- 10 (a) a local planning scheme; (b) subdivision; or (c) approval of development. (2) The Governor may make regulations providing for, or in respect of -- 15 (a) the licences and services in respect of planning matters for which fees may be imposed by a local government; (b) the fees that may be imposed for those licences and the provision of those services, and the recovery of those fees; 20 (c) any formula, index or other base to be used for the purposes of calculating or ascertaining the fee; (d) the payment or recovery of costs and expenses incurred by the local government in issuing a licence or providing a service in relation to a planning matter, 25 including costs and expenses incurred by the local government in obtaining specialist or expert advice where, in the opinion of the local government, the advice was necessary for the purpose of taking the action or providing the service; and 30 (e) the liability of persons for payment to the local government in respect of the issuing of a licence and the provision of services and related costs and expenses. page 201 Planning and Development Bill 2004 Part 15 Subsidiary legislation Division 2 Subsidiary legislation made by Governor s. 289 (3) A local government is not to -- (a) impose any fee for the issue of a licence or the provision of a service in relation to a planning matter; or (b) require payments for costs and expenses incurred by the 5 local government in issuing a licence or providing a service in relation to a planning matter, unless the licence or service is prescribed under subsection (2)(a). (4) A fee imposed for an application for approval of development 10 that has commenced or been carried out may include an amount prescribed by way of penalty. (5) A local government is not to impose a fee for an action or service in relation to a planning matter that is inconsistent with a fee prescribed or provided for under this section. 15 289. Uniform general local laws (1) The Governor may make uniform general local laws, or separate sets of general local laws adapted for areas of any special character, for carrying into effect all or any of the purposes mentioned in Schedule 8. 20 (2) Local laws made under subsection (1) -- (a) have the force of law in the district of any local government which the Governor may from time to time prescribe; and (b) supersede the local laws made for the same or similar 25 purpose by the local government of the district so prescribed. (3) The Governor may at any time repeal any by-law made under section 248 of the Local Government Act 1960. (4) If a by-law made under section 248 of the Local Government 30 Act 1960, or a local law made under subsection (1), is inconsistent with any local planning scheme approved before or page 202 Planning and Development Bill 2004 Subsidiary legislation Part 15 Subsidiary legislation made by Governor Division 2 s. 290 after the making of the by-law or local law, and having effect in the district, or in part of the district, in which the by-law or local law is in force, then to the extent of such inconsistency, and in the part of the district in which the local planning scheme has 5 effect, the provisions of the local planning scheme prevail. (5) In subsection (4) reference to a local planning scheme includes a reference to a redevelopment scheme approved under Part 4 of the East Perth Redevelopment Act 1991, Part 4 of the Subiaco Redevelopment Act 1994, Part 4 of the Midland Redevelopment 10 Act 1999 or under Part 4 of the Armadale Redevelopment Act 2001 or a master plan approved under Part 3 of the Hope Valley-Wattleup Redevelopment Act 2000. (6) If any property is injuriously affected by the operation of any by-law made under section 248 of the Local Government 15 Act 1960 or local law under subsection (1), the provisions of Part 11 apply as if the by-law or local law were a planning scheme, and as if the resolution making the by-law or local law were a resolution to prepare a planning scheme. 290. Governor may make regulations 20 (1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act. (2) Without limiting subsection (1), regulations made under that 25 subsection may -- (a) make provision for or with respect to the making of applications and the manner in which applications are to be made and the procedure to be followed; (b) prescribe forms and fees; 30 (c) prescribe the rights, powers and privileges given to, and duties imposed on, a convenantee or other person or authority specified in the regulations where road access is restricted or prohibited as set out in a condition page 203 Planning and Development Bill 2004 Part 15 Subsidiary legislation Division 3 General s. 291 referred to in section 150 and provide for the modification or discharge of, and other matters related to, a covenant referred to in that section; (d) prescribe the rights, powers and privileges given to a 5 specified person or authority where an easement for a specified purpose has effect in favour of that person or authority under section 167; (e) make provision for or with respect to any matter for or with respect to which rules may be made; 10 (f) impose a penalty not exceeding $50 000 for offences against the regulations. (3) A fee imposed for an application for approval of development that has commenced or been carried out may include an amount prescribed by way of penalty. 15 (4) To the extent that a regulation made under this section is inconsistent with or contrary to a regulation made under Division 1, the regulation made under Division 1 prevails. (5) If a regulation is inconsistent with a rule, the regulation prevails to the extent of the inconsistency. 20 Division 3 -- General 291. Regulations may adopt codes and other texts (1) A regulation made under this Act may adopt the text of any code, rules, specifications or standard issued by the Standards Association of Australia or by such other body as is specified in 25 the regulation. (2) A regulation prescribing fees payable on application to the Board of Valuers may adopt the text of all or any of the maximum amount of remuneration fixed under section 25 of the Land Valuers Licensing Act 1978 for the various kinds of 30 services rendered by licensed valuers and those maximum amounts of remuneration, if so adopted, are taken to be fees page 204 Planning and Development Bill 2004 Subsidiary legislation Part 15 General Division 3 s. 291 prescribed as fees payable on application to the Board of Valuers. (3) The text may be adopted -- (a) wholly or in part; 5 (b) as modified by the regulations; (c) as it exists at a particular date or as amended from time to time. (4) The adoption may be direct, by reference made in the regulation, or indirect, by reference made in any text that is 10 itself directly or indirectly adopted. page 205 Planning and Development Bill 2004 Part 16 Miscellaneous s. 292 Part 16 -- Miscellaneous 292. Delegation by Minister (1) The Minister may, by instrument, delegate to a person or body any function of the Minister under this Act, except this power of 5 delegation. (2) The Minister is to cause the name or title of the delegate to be published in the Gazette as soon as is practicable after the making of the delegation concerned. (3) A delegate cannot subdelegate the exercise or performance of 10 any function unless the delegate is expressly authorised by the instrument of delegation to do so. (4) A delegate exercising or performing a function as authorised under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown. 15 (5) Nothing in this section limits the ability of the Minister to act through an officer or agent. 293. Duties and liabilities of persons performing functions under this Act (1) In this section -- 20 "function" means a function in connection with the carrying out of this Act; "meeting" means a meeting held in connection with the carrying out of this Act; "member" means any of the following -- 25 (a) a member; (b) an associate member; (c) a member of a committee established under Schedule 2; (d) a member of a public authority; 30 (e) a member of a local government. page 206 Planning and Development Bill 2004 Miscellaneous Part 16 s. 293 (2) A member must at all times act honestly in the performance of a function. Penalty: $5 000. (3) Where a matter is before a meeting for consideration and a 5 member participating in the meeting has a direct or indirect pecuniary interest in the matter, the member -- (a) as soon as possible after the relevant facts have come to the member's knowledge is to disclose that the member has such an interest to the other members participating 10 in the meeting; and (b) after disclosure of the interest is not to -- (i) be present during any consideration or discussion of the matter; or (ii) vote on the matter. 15 Penalty: $5 000. (4) A disclosure under subsection (3) is to be recorded in the minutes of the meeting. (5) A member is not to disclose any information acquired by virtue of the performance of any function unless the disclosure is 20 made -- (a) in connection with the carrying out of this Act or under a legal duty; or (b) for the purposes of any proceedings arising out of this Act or any report of such proceedings. 25 Penalty: $5 000. (6) A member is not to make improper use of information acquired by virtue of the performance of any function to gain, directly or indirectly, an advantage for himself or herself or to cause detriment to the Commission. 30 Penalty: $5 000. page 207 Planning and Development Bill 2004 Part 16 Miscellaneous s. 294 (7) A member who commits a breach of any provision of this section is liable for any profit made by the member or for any damage suffered by the Commission as a result of the breach of that provision. 5 (8) This section is in addition to and not in derogation of any other law relating to the duty or liability of the holder of a public office. 294. Protection from liability for wrongdoing (1) In this section -- 10 "member" means any of the following -- (a) a member; (b) an associate member; (c) a member of a committee established under Schedule 2. 15 (2) An action in tort does not lie against a member, or an officer of the Commission, for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act or any other written law. (3) The protection given by subsection (2) applies even though the 20 thing done as described in that subsection may have been capable of being done whether or not this Act or any other written law had been enacted. (4) Despite subsection (2), neither the Commission nor the State is relieved of any liability that it might have for another person 25 having done anything as described in that subsection. (5) In this section, a reference to the doing of anything includes a reference to an omission to do anything. page 208 Planning and Development Bill 2004 Miscellaneous Part 16 s. 295 295. Review of Act (1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 5 years from the commencement of this section. 5 (2) The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause the report to be laid before each House of Parliament. page 209 Planning and Development Bill 2004 Schedule 1 Constitution and proceedings of the board Schedule 1 -- Constitution and proceedings of the board [s. 12] 1. Terms used in this Schedule In this Schedule -- 5 "appointed member" means a member appointed under section 10(1)(a) or (b). 2. Term of office (1) An appointed member or an associate member holds office for such period, not exceeding 5 years, as is specified in the instrument of his 10 or her appointment, and is eligible for reappointment. (2) Despite subclause (1), if the period of office of an appointed member or associate member expires by effluxion of time without a person having been appointed to fill the vacancy, the appointed member or associate member continues in office until a person is appointed to fill 15 the vacancy. 3. Extent of duties (1) A member may be appointed on terms that require the member's duties to be performed on a full time basis. (2) Except as provided in subclause (1), appointment as a member or 20 associate member is to be on a part time basis. 4. Resignation and removal (1) The office of an appointed member or associate member becomes vacant if -- (a) the appointed member or associate member resigns the office 25 by written notice addressed to the Minister; (b) the appointed member or associate member is an insolvent under administration within the meaning of that term in the Corporations Act 2001 of the Commonwealth; (c) in the case of a member appointed under section 10(1)(b)(i) 30 or (ii) who holds office on the council of a local government at the time of appointment, the member ceases to hold office on the council of the local government; page 210 Planning and Development Bill 2004 Constitution and proceedings of the board Schedule 1 (d) in the case of an appointed member, the appointed member is absent, without leave of the Minister, from 3 consecutive meetings of which the appointed member has had notice; (e) in the case of an associate member, the associate member is 5 absent, without leave of the Minister, from 3 consecutive meetings which the associate member was requested to attend under section 11(4); or (f) the appointed member or associate member is removed from office by the Governor under subclause (3). 10 (2) Despite subclause (1)(c), a member referred to in that paragraph may continue in office until -- (a) a person is appointed to fill the vacancy; or (b) a period of 3 months elapses after the vacancy arises, whichever is the sooner. 15 (3) The Governor may remove an appointed member or an associate member from office if the Governor is satisfied that the member -- (a) is incompetent, has misbehaved or has neglected his or her duties as a member; or (b) is suffering from mental or physical incapacity impairing the 20 performance of his or her functions. 5. Leave of absence The Minister may grant leave of absence to a member on such terms and conditions as the Minister thinks fit. 6. Deputy chairperson 25 (1) The Governor, on the recommendation of the Minister, may appoint a person to be deputy chairperson. (2) A person appointed under subclause (1) may resign as deputy chairperson at any time by written notice given to the Minister. (3) The Governor, on the recommendation of the Minister, may revoke 30 the appointment of the deputy chairperson. page 211 Planning and Development Bill 2004 Schedule 1 Constitution and proceedings of the board (4) Where the chairperson is unable to act because of sickness, absence or other cause, the deputy chairperson is to act in the chairperson's place. (5) No act or omission of the deputy chairperson acting in place of the 5 chairperson under this clause may be questioned on the ground that the occasion for the acting had not arisen or had ceased. 7. Deputy members (1) The Governor may appoint a person to be the deputy of the member referred to in section 10(1)(b)(i) or (ii), in which case 10 section 10(1)(b)(i) or (ii), (2) and (3) apply with any necessary modifications to and in relation to that appointment. (2) If a member, other than the chairperson, is unable to act because of sickness, absence or other cause, the deputy of the member may act in the place of that member, and while so acting that deputy member is 15 taken to be a member. (3) An act or omission of a deputy member cannot be questioned on the ground that the occasion for the deputy member's acting had not arisen or had ceased. (4) The Governor, on the recommendation of the Minister, may revoke 20 the appointment of a deputy member. 8. Meetings (1) Subject to subclause (2), meetings are to be held at such times and places as the board determines. (2) A special meeting of the board may, on reasonable notice to all 25 members, be convened by the chairperson or any 2 members. (3) The chairperson is to preside at all meetings of the board at which he or she is present, or in which he or she is participating under clause 10. (4) If both the chairperson and the deputy chairperson are not present or 30 participating, the members present or participating are to appoint a member to preside. page 212 Planning and Development Bill 2004 Constitution and proceedings of the board Schedule 1 (5) At any meeting of the board a number of members equal to at least one half of the number of members provided for by section 10 constitute a quorum. (6) Questions arising at a meeting of the board are to be decided, in open 5 voting, by a majority of the votes of members and associate members present. (7) If the votes of members and associate members present at a meeting and voting on a question are equally divided, the person presiding has a casting vote in addition to a deliberative vote. 10 9. Resolution without meeting A written resolution signed by each member or assented to by each member by letter or facsimile is as effectual as if it had been passed at a meeting of the board. 10. Telephone or similar meetings 15 A communication between a majority of the members by telephone, audio-visual or other electronic means is a valid meeting of the board if -- (a) each participating member is capable of communicating with every other participating member instantaneously at all times 20 during the proceedings; and (b) all members were advised that the communication would be taking place and were given the opportunity to participate. 11. Minutes of meetings The board is to cause accurate records to be kept of the proceedings at 25 its meetings. 12. Procedures Subject to this Act, the board is to determine its own procedures. page 213 Planning and Development Bill 2004 Schedule 2 Committees Schedule 2 -- Committees [s. 19] 1. Committees -- general (1) In addition to the committees established under clauses 3 to 9, the 5 Commission may from time to time establish other committees. (2) Subject to this Schedule, the Commission may -- (a) prescribe the constitution of a committee; (b) authorise a committee to establish a subcommittee; (c) appoint -- 10 (i) members; (ii) members and other persons; or (iii) persons other than members, to be members or deputy members of a committee; (d) discharge, alter or reconstitute a committee. 15 (3) The office of a member who -- (a) is appointed to a committee by the Commission to represent the interests of local government; and (b) at the time of appointment holds office on the council of a local government, 20 becomes vacant if the member ceases to hold office on the council of the local government. (4) Despite subclause (3), a member referred to in that subclause may continue in office until -- (a) a person is appointed to fill the vacancy; or 25 (b) a period of 3 months elapses after the vacancy arises, whichever is the sooner. (5) The Commission may give directions to a committee with respect to the performance of its functions, either generally or with respect to a particular matter, and the committee is to give effect to those 30 directions. page 214 Planning and Development Bill 2004 Committees Schedule 2 (6) Subject to the directions of the Commission and to the terms of any delegation under section 16, a committee may determine its own procedures. 2. Deputy members -- local government representatives 5 (1) The Commission, with the approval of the Minister, may appoint a person to be a deputy of a member of a committee appointed under clause 4(2)(f), 5(2)(f), 6(2)(j), 7(2)(h), 7(2)(i) or 8(2)(d). (2) If a member of a committee referred to in subclause (1) is unable to act because of sickness, absence or other cause, the deputy of the 10 member may act in the place of that member, and while so acting that deputy member is taken to be a member of that committee. (3) An act or omission of a deputy member cannot be questioned on the ground that the occasion for the deputy member's acting had not arisen or had ceased. 15 (4) The Commission may revoke the appointment of a deputy member. 3. Executive, Finance and Property Committee (1) The Commission is to establish a committee to be known as the Executive, Finance and Property Committee. (2) The Executive, Finance and Property Committee is to consist of -- 20 (a) the chairperson, or a person nominated by that person and approved by the Minister; (b) the chief executive officer, or a person nominated by that person and approved by the Minister; (c) one other member of the board appointed by the Commission; 25 and (d) such other person or persons as the Commission, after obtaining the approval of the Minister, appoints from time to time. (3) The Executive, Finance and Property Committee is to perform such of 30 the administrative, financial and property functions of the Commission under this Act or any other written law as are delegated to the Executive, Finance and Property Committee under section 16 and such other functions as are delegated to it under that section. page 215 Planning and Development Bill 2004 Schedule 2 Committees 4. Statutory Planning Committee (1) The Commission is to establish a committee to be known as the Statutory Planning Committee. (2) Subject to subclause (5), the Statutory Planning Committee is to 5 consist of -- (a) the chairperson, or a person nominated by that person and approved by the Minister; (b) the chief executive officer, or a person nominated by that person and approved by the Minister; 10 (c) the member of the board referred to in section 10(1)(c)(viii) or a deputy appointed under subclause (3); (d) a person approved by the Minister and appointed by the Commission as having practical knowledge of and experience in community affairs; 15 (e) a person approved by the Minister and appointed by the Commission as having practical knowledge of and experience in one or more of the fields of urban and regional planning, commerce and industry, engineering, surveying, valuation, transport, housing, heritage, environmental conservation, 20 natural resource management, urban design, the planning and provision of community services or infrastructure; (f) a person approved by the Minister and appointed by the Commission to represent the interests of local governments; and 25 (g) such other person or persons as the Commission, after obtaining the approval of the Minister, appoints from time to time. (3) The Commission, for the purpose of subclause (2)(c), is to appoint a person nominated by the Regional Minister and approved by the 30 Minister to be the deputy of the member referred to in section 10(1)(c)(viii). (4) The Statutory Planning Committee is to perform such of the functions of the Commission under this Act and Part II of the Strata Titles Act 1985 as are delegated to the Statutory Planning Committee under 35 section 16 and such other functions as are delegated to it under that section. page 216 Planning and Development Bill 2004 Committees Schedule 2 (5) Should the Commission delegate to the Statutory Planning Committee under section 16 not only the functions of the Commission under this Act in relation to planning schemes referred to in sections 33(2) and 34 and Part II of the Strata Titles Act 1985 but also the functions 5 of the Commission in relation to the Metropolitan Region Scheme, the Statutory Planning Committee may perform those latter functions only if the Statutory Planning Committee consists not merely of the persons referred to in subclause (2) but also of -- (a) a member of the council of the City of Perth who is 10 nominated for appointment as a member of the Statutory Planning Committee by that council and approved by the Minister; and (b) 5 persons, each of whom is the chairperson of a district planning committee (other than the District Planning 15 Committee for the City of Perth), or persons nominated by those persons and approved by the Minister. 5. Sustainable Transport Committee (1) The Commission is to establish a committee to be known as the Sustainable Transport Committee. 20 (2) The Sustainable Transport Committee is to consist of -- (a) the chairperson, or a person nominated by that person and approved by the Minister; (b) the chief executive officer, or a person nominated by that person and approved by the Minister; 25 (c) the member of the board referred to in section 10(1)(c)(viii) or a deputy appointed under subclause (3); (d) the member of the board referred to in section 10(1)(c)(iii), or a person nominated by that person and approved by the Minister; 30 (e) the Commissioner within the meaning of the Main Roads Act 1930, or a person nominated by that person and approved by the Minister; (f) a person approved by the Minister and appointed by the Commission to represent the interests of local governments; 35 and page 217 Planning and Development Bill 2004 Schedule 2 Committees (g) such other person or persons as the Commission, after obtaining the approval of the Minister, appoints from time to time. (3) The Commission for the purposes of subclause (2)(c), is to appoint a 5 person nominated by the Regional Minister and approved by the Minister to be the deputy of the member referred to in section 10(1)(c)(viii). (4) The Sustainable Transport Committee is to advise the Commission on all matters relating to transport planning throughout the State and to 10 perform such of the functions of the Commission under this Act or any other written law as are delegated to the Sustainable Transport Committee under section 16. 6. Infrastructure Coordinating Committee (1) The Commission is to establish a committee to be known as the 15 Infrastructure Coordinating Committee. (2) The Infrastructure Coordinating Committee is to consist of -- (a) the chairperson, or a person nominated by that person and approved by the Minister; (b) each member of the board referred to in section 10(1)(c)(i) or 20 (iii), or a person nominated by that member and approved by the Minister; (c) the chief executive officer of the department principally assisting in the administration of the Water Agencies (Powers) Act 1984, or a person nominated by that chief 25 executive officer and approved by the Minister; (d) the Coordinator of Energy referred to in section 4 of the Energy Coordination Act 1994 or a person nominated by that person and approved by the Minister; (e) the chief executive officer of the department referred to in 30 section 228 of the School Education Act 1999, or a person nominated by that person and approved by the Minister; (f) the CEO as defined in section 3 of the Health Legislation Administration Act 1984, or a person nominated by that person and approved by the Minister; page 218 Planning and Development Bill 2004 Committees Schedule 2 (g) the chief executive officer of the department principally assisting in the administration of the Regional Development Commissions Act 1993, or a person nominated by that person and approved by the Minister; 5 (h) the chief executive officer of the department principally assisting in the administration of the Government Agreements Act 1979, or a person nominated by that person and approved by the Minister; (i) the chief executive officer of the department principally 10 assisting in the administration of the Mining Act 1978, or a person nominated by that person and approved by the Minister; (j) a person approved by the Minister and appointed by the Commission to represent the interests of local governments; 15 (k) not less than one person approved by the Minister and appointed by the Commission as having practical knowledge of and experience in one or more of the fields of urban and regional planning, business management, property development, financial management, engineering, surveying, 20 valuation, transport, housing, heritage, environmental conservation, natural resource management or urban design; (l) such other person or persons as the Commission, after obtaining the approval of the Minister, appoints from time to time. 25 (3) The Infrastructure Coordinating Committee is to advise the Commission on planning for the provision of physical and community infrastructure throughout the State and to perform such of the functions of the Commission under this Act or any other written law as are delegated to the Infrastructure Coordinating Committee under 30 section 16. 7. Coastal Planning and Coordination Council (1) The Commission is to establish a committee to be known as the Coastal Planning and Coordination Council. (2) The Coastal Planning and Coordination Council is to consist of -- 35 (a) a presiding member who is to be the member of the board referred to in section 10(1)(b)(iii); page 219 Planning and Development Bill 2004 Schedule 2 Committees (b) the chief executive officer, or a person nominated by that person and approved by the Minister; (c) the member of the board referred to in section 10(1)(c)(iv), or a person nominated by that member and approved by the 5 Minister; (d) the chief executive officer of the department principally assisting in the administration of the Conservation and Land Management Act 1984, or a person nominated by that person and approved by the Minister; 10 (e) the chief executive officer of the department principally assisting in the administration of the Fish Resources Management Act 1994, or a person nominated by that person and approved by the Minister; (f) the chief executive officer of the department principally 15 assisting in the administration of the Mining Act 1978, or a person nominated by that person and approved by the Minister; (g) the chief executive officer of the Western Australian Tourism Commission established by the Western Australian Tourism 20 Commission Act 1983, or a person nominated by that person and approved by the Minister; (h) a person approved by the Minister and appointed by the Commission to represent the interests of local governments within the metropolitan region; 25 (i) a person approved by the Minister and appointed by the Commission to represent the interests of local governments outside the metropolitan region; (j) at least 2 persons approved by the Minister and appointed by the Commission as having practical knowledge of and 30 experience in one or more of the fields of urban and regional planning, property development, engineering, heritage, community affairs, environmental conservation, indigenous affairs, natural resources management, tourism, coastal planning, urban design, commerce and industry or the 35 provision of coastal infrastructure; and (k) such other person or persons as the Commission, after obtaining the approval of the Minister, appoints from time to time. page 220 Planning and Development Bill 2004 Committees Schedule 2 (3) The Coastal Planning and Coordination Council is to advise the Commission on matters relating to coastal planning and coordination throughout the State and to perform such of the functions of the Commission under this Act or any other written law as are delegated 5 to the Coastal Planning and Coordination Council under section 16. 8. Regional planning committees (1) The Commission may establish a regional planning committee for the whole or any part of a region referred to in Schedule 4 if the Commission is satisfied that the need for the regional planning 10 committee exists. (2) A regional planning committee is to consist of -- (a) the chairperson, or a person nominated by that person and approved by the Minister; (b) the chief executive officer, or a person nominated by that 15 person and approved by the Minister; (c) a person approved by the Minister and appointed by the Commission as having practical knowledge of and experience in community affairs; (d) not less than 2 persons approved by the Minister and 20 appointed by the Commission from a list of the names of persons representing the interests of the local governments within the whole or part of the regions for which the regional planning committee is established submitted to the Commission by WALGA; 25 (e) a person nominated by the Regional Minister, approved by the Minister and appointed by the Commission to represent the interests of the commission or commissions within the meaning of the Regional Development Commissions Act 1993 within the whole or part of the region for which the regional 30 planning committee is established; (f) a person approved by the Minister and appointed by the Commission as having practical knowledge of and experience in one or more of the fields of urban and regional planning, commerce and industry, engineering, surveying, valuation, 35 transport, housing, heritage, environmental conservation, natural resource management, urban design, the planning and provision of community services or infrastructure, or community affairs; and page 221 Planning and Development Bill 2004 Schedule 2 Committees (g) such other person or persons as the Commission, after obtaining the approval of the Minister, appoints from time to time. (3) When the submission of a list of names is required for the purposes of 5 subclause (2)(d), that submission is to be made to the Commission in writing signed on behalf of WALGA within such reasonable time after the receipt by WALGA of a notice from the Commission stating that submission is required as is specified in the notice. (4) If a submission is not made under subclause (3) within the time 10 specified under that subclause, the Commission may appoint such persons as it thinks fit to be members of the regional planning committee in place of the persons provided for in subclause (2)(d). (5) A regional planning committee is to -- (a) advise the Commission on planning for the region, or part of 15 the region, for which the regional planning committee is established; (b) make recommendations to the Commission on the need for, and the extent and content of, region planning schemes; and (c) perform such of the functions of the Commission under this 20 Act, the Strata Titles Act 1985 and any other written law as are delegated to the committee under section 16. 9. District planning committees (1) The -- (a) City of Perth; and 25 (b) groups of local governments referred to in Schedule 5, are each to establish a district planning committee. (2) A district planning committee -- (a) in the case of the City of Perth, is to consist of the City of Perth Planning Committee for the time being; and 30 (b) in the case of a district planning committee established by a group of local governments, is to consist of one member appointed by each of the local governments in the group to represent that local government. page 222 Planning and Development Bill 2004 Committees Schedule 2 (3) A member appointed under subclause (2)(b) is to be the mayor or a councillor or member, as the case requires, of the local government. (4) If a local government does not appoint a member under subclause (2)(b), the Governor may appoint a person qualified under 5 subclause (3) to be the member representing the local government. (5) A district planning committee -- (a) is to assist and advise the Commission; (b) may, and at the direction of the Commission is to, make inquiries into and report and formulate recommendations in 10 relation to the Metropolitan Region Scheme so far as it relates to the area or part of the area comprising the district which the district planning committee represents; and (c) perform such of the functions of the Commission under this Act and any other written law as are delegated to the 15 committee under section 16. (6) A district planning committee -- (a) is to present its reports and recommendations to the Commission; and (b) if directed under subclause (5)(b), is to present the report and 20 recommendations within the time stipulated in the direction or such extended time as the Minister may authorise. page 223 Planning and Development Bill 2004 Schedule 3 Metropolitan region Schedule 3 -- Metropolitan region [s. 4] All that portion of the State bounded by a line starting from the south-western corner of Swan Location 2745 (South Latitude 5 31 degrees 27 minutes 23.105 seconds, East Longitude 115 degrees 33 minutes 35.604 seconds), being a point on the northernmost northern boundary of the local government district of Wanneroo, and extending easterly, generally southerly, again easterly, again generally southerly and again easterly along the boundaries of that district to the 10 intersection of the prolongation northerly of the eastern boundary of Location 1584 with the prolongation westerly of the northern boundary of Location 2478, being a north-western corner of the local government district of Swan; thence generally easterly, generally northerly, generally easterly, southerly, easterly and again southerly 15 along the boundaries of that district to the easternmost south-eastern corner of Location 1817, being a point on the northernmost northern boundary of the local government district of Mundaring; thence easterly, generally southerly, again easterly, again generally southerly, generally westerly, again southerly, again easterly, again southerly 20 and again westerly and generally north-westerly along boundaries of the local government district of Mundaring to the intersection of the left bank of the Darkin River with the prolongation northerly of the western boundary of late pre-emptive Poison Right 8/228, being the easternmost north-eastern corner of the local government district of 25 Kalamunda; thence southerly along the easternmost eastern boundary of the local government district of Kalamunda to the prolongation east of the southern boundary of Canning Location 710, being a north-eastern corner of the local government district of Armadale; thence generally southerly, generally south-easterly, westerly and 30 south-westerly along the boundaries of the local government district of Armadale to the 33 Mile Post on the north-eastern side of Albany Highway, being a north-eastern corner of the local government district of Serpentine-Jarrahdale; thence generally south-easterly, southerly, generally westerly and northerly along boundaries of the local 35 government district of Serpentine-Jarrahdale to the north-eastern corner of Lot 3 of Cockburn Sound Location 16, as shown on Department within the meaning of the Transfer of Land Act 1893 Diagram 2909, being a south-eastern corner of the local government district of Rockingham; thence generally westerly along the page 224 Planning and Development Bill 2004 Metropolitan region Schedule 3 boundaries of the local government district of Rockingham to the south-western corner of Lot 236 as shown on Department within the meaning of the Transfer of Land Act 1893 Plan 7931(2), (South Latitude 32 degrees 27 minutes 24.586 seconds, East Longitude 5 115 degrees 44 minutes 52.324 seconds); thence west 17 820.4 metres to East Longitude 115 degrees 33 minutes 30 seconds; thence north 110 932.1 metres to South Latitude 31 degrees 27 minutes 23.105 seconds and thence east 148 metres to the starting point. page 225 Planning and Development Bill 2004 Schedule 4 Other regions Schedule 4 -- Other regions [s. 4, 11] Item Region 1. Gascoyne Region 5 The districts of Carnarvon, Exmouth, Shark Bay and Upper Gascoyne. 2. Goldfields-Esperance Region The districts of Kalgoorlie-Boulder, Coolgardie, Dundas, Esperance, Laverton, Leonora, Menzies, Ngaanyatjarraku and Ravensthorpe. 10 3. Great Southern Region The districts of Albany (Town), Albany (Shire), Broomehill, Cranbrook, Denmark, Gnowangerup, Jerramungup, Katanning, Kent, Kojonup, Plantagenet, Tambellup and Woodanilling. 4. Kimberley Region 15 The districts of Broome, Derby-West Kimberley, Hall's Creek and Wyndham-East Kimberley. 5. Mid West Region The districts of Geraldton, Carnamah, Chapman Valley, Coorow, Cue, Greenough, Irwin, Meekatharra, Mingenew, Morawa, Mount 20 Magnet, Mullewa, Murchison, Northampton, Perenjori, Sandstone, Three Springs, Wiluna and Yalgoo. 6. Peel Region The districts of Mandurah, Boddington, Murray and Waroona. 7. Pilbara Region 25 The districts of Port Hedland, Ashburton, East Pilbara and Roebourne. page 226 Planning and Development Bill 2004 Other regions Schedule 4 8. South West Region The districts of Bunbury, Augusta-Margaret River, Boyup Brook, Bridgetown-Greenbushes, Busselton, Capel, Collie, Dardanup, Donnybrook-Balingup, Harvey, Manjimup and Nannup. 5 9. Wheatbelt Region The districts of Narrogin (Town), Northam (Town), Beverley, Brookton, Bruce Rock, Chittering, Corrigin, Cuballing, Cunderdin, Dandaragan, Dalwallinu, Dowerin, Dumbleyung, Gingin, Goomalling, Kellerberrin, Kondinin, Koorda, Kulin, Lake Grace, 10 Merredin, Moora, Mount Marshall, Mukinbudin, Narambeen, Narrogin (Shire), Northam (Shire), Nungarin, Pingelly, Quairading, Tammin, Toodyay, Trayning, Victoria Plains, Wagin, Wandering, West Arthur, Westonia, Wickepin, Williams, Wongan-Ballidu, Wyalkatchem, Yilgarn and York. page 227 Planning and Development Bill 2004 Schedule 5 Local governments -- metropolitan region Schedule 5 -- Local governments -- metropolitan region [Sch 2 cl. 9(1)(b)] 1. SOUTH-WEST GROUP City of Cockburn 5 City of Fremantle City of Melville City of Rockingham Town of East Fremantle Town of Kwinana 10 2. WESTERN SUBURBS GROUP City of Nedlands City of Subiaco Town of Cambridge Town of Claremont 15 Town of Cottesloe Town of Mosman Park Shire of Peppermint Grove 3. NORTH-WEST GROUP City of Stirling 20 City of Wanneroo Town of Vincent City of Joondalup page 228 Planning and Development Bill 2004 Local governments -- metropolitan region Schedule 5 4. SOUTH-EAST GROUP City of Armadale City of Canning City of Gosnells 5 City of South Perth Town of Victoria Park Shire of Serpentine-Jarrahdale 5. EASTERN GROUP City of Bayswater 10 Town of Bassendean City of Belmont Shire of Kalamunda Shire of Mundaring City of Swan page 229 Planning and Development Bill 2004 Schedule 6 Planning control areas: purposes for which land may be required Schedule 6 -- Planning control areas: purposes for which land may be required [s. 112(1)] Item Purpose 1. Car Parks 2. Civic and cultural amenity 3. Commonwealth Government 4. Cultural heritage conservation 5. Highways and important regional roads 6. Hospitals 7. Parks and recreation areas 8. Port installations 9. Power services, including electricity and gas supply 10. Prisons 11. Public purpose of the State 12. Railways 13. Schools 14. Special uses 15. State forests 16. Universities 17. Water catchments 18. Water services, including sewerage and drainage 19. Waterways page 230 Planning and Development Bill 2004 Matters which may be dealt with by planning scheme Schedule 7 Schedule 7 -- Matters which may be dealt with by planning scheme [s. 69, 283(1)] 1. Generality preserved 5 The mention of a particular matter in this Schedule does not prejudice or affect the generality of any other matter. 2. Subdivision (1) The subdivision of land generally. (2) The submission of plans. 10 (3) The control of any activity, development or work arising as a consequence of subdivision. 3. Reconstruction (1) The reconstruction of the scheme area, or any part of the scheme area, generally. 15 (2) In relation to the reconstruction -- (a) the pooling of the lands of several owners, or any land or roads adjacent or near to the land; (b) re-planning by re-subdivision, readjustment of boundaries, adjustment of rights, exchanges of land, cancellation of 20 subdivisions and vesting. 4. Preservation and conservation (1) The preservation of places and objects of cultural heritage significance, including control of the demolition and alteration of any building, structure or works. 25 (2) The conservation of the natural environment of the scheme area including the protection of natural resources, the preservation of trees, vegetation and other flora and fauna, and the maintenance of ecological processes and genetic diversity. (3) The conservation of water. page 231 Planning and Development Bill 2004 Schedule 7 Matters which may be dealt with by planning scheme 5. Roads, public works, undertakings, purposes and facilities (1) Roads, intersections, corners and all objects, works, trees or shrubs associated with, constructed or located on, below or adjacent to roads, intersections and corners. 5 (2) Public works and undertakings of any kind including lighting, water, sewerage, drainage, public transport and associated facilities on land and water. (3) The reservation of land for public purposes. (4) The provision and location of public facilities and conveniences and 10 any other objects or works on the land. 6. Zoning (1) Zoning of the scheme area for appropriate purposes. (2) Designation of uses in zones as permitted, prohibited or requiring approval. 15 7. Special controls Controls for land or site management for matters to which this Act relates. 8. Development standards Standards for the development of any class or kind of building, 20 structure, work or advertisement including standards in respect of -- (a) size; (b) appearance; (c) placement; (d) location; 25 (e) number; (f) landscaping; (g) open space; (h) parking; (i) measures to maximise energy efficiency; 30 (j) any other activity or requirement arising from the development. page 232 Planning and Development Bill 2004 Matters which may be dealt with by planning scheme Schedule 7 9. Development controls Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest. 5 10. Acquisition and purchase Acquisition or purchase of land or buildings and any step necessary to give effect to the acquisition or purchase. 11. Powers (1) The extinguishment or variation of any restrictive covenant, easement 10 or right of way. (2) Powers of entry and inspection. (3) Powers to remove, alter, or demolish any building which obstructs the observance or carrying out of the scheme. (4) Powers to recover expenses incurred or to be incurred in 15 implementing, enforcing and giving effect to the scheme. 12. Agreements and cooperation (1) Agreements and cooperation between the responsible authority and the owners of land. (2) Agreements and cooperation between the responsible authority and 20 public, statutory or responsible authority. (3) Agreements and cooperation between owners of land. 13. Carrying out the scheme (1) The carrying out of the scheme. (2) The limitation of time for the operation of a scheme, any provision of 25 the scheme or works ancillary to the scheme. (3) The responsibilities of any persons or authorities to which the scheme relates. page 233 Planning and Development Bill 2004 Schedule 7 Matters which may be dealt with by planning scheme 14. Appeal Where a discretionary power is vested by the scheme in the responsible authority, the conferral on a person aggrieved by the exercise of the power of a right of appeal to the Tribunal. 5 15. General and ancillary matters (1) Policies in respect of any matter to which the Act relates. (2) Any other matter necessary or incidental to the sustainable development or use of land. page 234 Planning and Development Bill 2004 Matters for which local laws may be made by Governor Schedule 8 Schedule 8 -- Matters for which local laws may be made by Governor [s. 289] 1. Purchase and reservation of land 5 Purchasing or reserving land for new main thoroughfares which it is desired to keep free of buildings by agreement between the owners of such land and the responsible authority or by cooperation between 2 or more local governments with regard to the lines, widths and direction of thoroughfares which connect adjacent parts of their 10 respective areas. 2. Limitation of building Limiting the number of buildings, rooms, dwelling units or other accommodation units to the hectare generally or in any particular locality, or on any subdivision, allotment or parcel of land, 15 particularly or generally, and the extent to which each subdivision, allotment or parcel of land is to be built upon, and providing for adequate light and air to the windows of each house, and prescribing other requirements so far as is reasonable for the purpose of securing the convenience or amenity of the area to which local laws apply, and 20 proper sanitary and hygienic conditions in connection with any buildings therein. 3. Classification and zoning Classification or zoning reclassifying or re-zoning the area for residence, flats, trade, business, industry, commercial recreation, 25 educational or other public or institutional purposes, and including areas for agricultural or rural use and for any other general or particular purposes whether of the same class or kind as the class or kind before enumerated or not, and fixing the sites or areas for any of the purposes included in this Schedule and prohibiting in any of these 30 zones or classification any building or use of land of or for a general or particular nature or purpose. 4. Prohibition of use Prohibiting any district or part of it from being used for any purpose other than that for which it has been classified. page 235 Planning and Development Bill 2004 Schedule 8 Matters for which local laws may be made by Governor 5. Prescribing characteristics of building Prescribing the height, location, purpose and dimensions or the general character of buildings to be erected or reconstructed as far as is reasonable for securing proper sanitary and hygienic conditions, 5 convenience, or amenity of the area to which the local laws are to apply. 6. Prohibition of trade etc. or erection or use of building Prohibiting the carrying on of any noxious trades or manufactures, or the erection or use of any buildings without adequate sanitary 10 arrangements, or prohibiting or regulating the erection and use of buildings, advertisement hoardings, or structures for advertising purposes which are such as to be injurious to the amenity or natural beauty of the area to which the local laws are to apply. 7. Requirements of new subdivisions 15 (1) Prescribing and determining any requirements deemed necessary in regard to new subdivisions or re-subdivisions of any land (or maps, plans, sections, or particulars thereof) contained within the area to which it is intended that the local laws are to apply, including drainage, size and shape of allotments (or separate parcels of land) 20 and access thereto; also for the classification of and the prescribing and determining of any requirements in regard to the length or width of any road according to the use such road is likely to be put, or according to the physical features of the land, together with the design, method of construction, and completion of alignment, of any 25 road. (2) In this clause -- "road" has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or within the meaning of the Land Administration Act 1997 section 30 3(1). 8. Building lines (1) The making, fixing, altering and ascertaining of building lines irrespective of the width or alignment of any road, to secure as far as practicable, having regard to the physical features of the site and the 35 depths of the existing subdivisions of land, that the distance between page 236 Planning and Development Bill 2004 Matters for which local laws may be made by Governor Schedule 8 the buildings to be erected, or buildings likely to be reconstructed on the opposite sides of any road, are to be not less than that fixed by the local laws according to the prospective traffic requirements of such road, and the making, fixing and altering building lines generally and 5 providing that buildings generally or a building of any specified class are not to be built nearer to a building line or an ocean or waterway than is prescribed in a local law. (2) In this clause -- "building line" means the line between which and any public place 10 or public reserve a building may not be erected; "road" has the meaning given by clause 7(2). 9. Open space etc. Limiting of open spaces, recreation grounds, or sites for public buildings, by purchase or agreement between owners of lands and the 15 local government. 10. Heights Limiting the height, at the corner of any road (as defined in clause 7(2) of any wall, fence, hedge, tree, or shrub or other obstruction not being an authorised building. 20 11. Authority Providing for the authority or authorities responsible for carrying the local laws into effect and enforcing their observance. page 237 Planning and Development Bill 2004 Schedule 9 Board of Valuers Schedule 9 -- Board of Valuers [s. 182(5)] 1. Interpretation In this Schedule -- 5 "Board" means the Board of Valuers established under section 182. 2. Term of office Subject to clause 4 a member of the Board holds office for a term of 2 years and is eligible for reappointment. 3. Constitution of the Board 10 The Board is constituted by the chairperson of the Board and any 2 other members of the Board and may meet despite there being a vacancy on the Board. 4. Resignation or removal from office (1) A member of the Board may resign by written notice. 15 (2) The Governor may remove a member of the Board from office if the member -- (a) misbehaves or is incompetent; or (b) is suffering from a permanent physical or mental incapacity that impairs the performance of the member's functions. 20 5. Fees and expenses (1) The members of the Board are entitled to such fees and expenses, in respect of attendances at meetings of, or while engaged in the business of, the Board, as the Minister may from time to time determine. 25 (2) In determining under subclause (1) fees to which members of the Board are entitled while engaged in the business of the Board, the Minister may adopt -- (a) wholly or in part; and page 238 Planning and Development Bill 2004 Board of Valuers Schedule 9 (b) with or without alteration, all or any of the maximum amounts of remuneration fixed under section 25 of the Land Valuers Licensing Act 1978 for the various kinds of services rendered by licensed valuers and those maximum 5 amounts of remuneration, if so adopted are taken to be fees determined under subclause (1) as fees to which the members of the Board are entitled while engaged in the business of the Board. (3) An adoption made under subclause (2) may be made by reference to the citation of the relevant notice published in the Gazette under 10 section 25 of the Land Valuers Licensing Act 1978 and to any provisions of that notice, and it is not necessary to set out in the relevant determination made under subclause (1) the full text of that notice or of any provision of the notice. page 239 Planning and Development Bill 2004 Schedule 10 The Tribunal Schedule 10 -- The Tribunal [s. 239] 1. Term of office (1) Subject to this clause and clause 2 -- 5 (a) the President, deputy President and a senior member 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 member, 10 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. 15 (2) Notwithstanding anything in this Act, where the term of office of a Tribunal member has expired or the Tribunal member has resigned, the Tribunal member may, with the approval of the Minister, continue in office for the purpose of completing the hearing and determination of any appeal that the Tribunal member has entered upon. 20 2. Removal and resignation (1) The Governor may remove a Tribunal member from office on the grounds of -- (a) mental or physical incapacity to carry out satisfactorily the duties of a Tribunal member; 25 (b) neglect of duty; or (c) misconduct. (2) A Tribunal member may resign office by written notice delivered to the Minister. 3. Leave of absence 30 The President may grant leave of absence to a Tribunal member on such terms and conditions as the President thinks fit but leave of absence is not to be granted for a period exceeding 6 months. page 240 Planning and Development Bill 2004 The Tribunal Schedule 10 4. Deputy President The deputy President is to act as President during the unavailability or absence of the President and while so acting may perform the functions of the President. 5 5. Acting Tribunal members (1) If the deputy President is required to act as President but the deputy President -- (a) is unavailable or absent; or (b) disqualifies himself or herself in respect of a particular appeal 10 by reason of the possibility of conflict of interest, the Minister may appoint a person who has the same qualification for appointment as if 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 15 complete any hearing and determination of any appeal that the person has entered upon. (2) When a Tribunal 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. 20 (3) If another Tribunal member is unavailable or absent, the Minister 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 the person has entered upon. 25 (4) While acting in the place of a Tribunal 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 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 30 ceased. page 241 Planning and Development Bill 2004 Schedule 10 The Tribunal 6. Remuneration, allowances and conditions of service (1) A Tribunal member is to be paid such remuneration and allowances in respect of the performance of his or her functions as the Minister from time to time determines in his or her case. 5 (2) Subclause (1) has effect subject to the Salaries and Allowances Act 1975, if that Act applies to the Tribunal member. (3) Subject to this Schedule, the Minister may determine other terms and conditions of service that apply to a Tribunal member. (4) A determination is only to be made after having regard to the 10 recommendation of the Minister for Public Sector Management. page 242 Planning and Development Bill 2004 The Principal Registrar Schedule 11 Schedule 11 -- The Principal Registrar [s. 243(5)] 1. Term of office Subject to clause 2, the Principal Registrar holds office for a term, not 5 exceeding 5 years, specified in 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 -- 10 (a) mental or physical incapacity to carry out satisfactorily the functions of the Principal Registrar; (b) neglect of duty; or (c) misconduct. (2) The Principal Registrar may resign office by written notice delivered 15 to the Minister. 3. Salary, entitlements and conditions of service (1) The Principal Registrar -- (a) is to be paid salary and allowances at a rate per year determined by the Minister; and 20 (b) has the same annual leave, sick leave and long service leave entitlements as a permanent officer of the Public Service. (2) Subclause (1) has effect subject to the Salaries and Allowances Act 1975, if that Act applies to the Principal Registrar. (3) Subject to this Schedule, the Minister may determine other terms and 25 conditions of service that apply to the Principal Registrar. (4) A determination is only to be made after having regard to the recommendation of the Minister for Public Sector Management. page 243 Planning and Development Bill 2004 Schedule 11 The Principal Registrar 4. Acting Principal Registrar (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. 5 (2) While acting in the place of the Principal Registrar, the acting Principal Registrar has all of the functions, powers and immunities of the Principal Registrar. (3) No act or omission of a person acting in the place of the Principal Registrar under this clause is to be questioned on the ground that the 10 occasion for the appointment or for so acting had not arisen or had ceased. page 244 Planning and Development Bill 2004 Defined Terms Defined Terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined Term Provision(s) Account ...................................................................................................... 4(1) alleged offender ........................................................................................... 226 appeal ......................................................................................................... 4(1) applicant ..................................................................................................280(1) appointed member ............................................................................Sch. 1, cl. 1 artificial waterway....................................................................................... 4(1) assessed scheme .......................................................................................217(1) associate member ........................................................................................ 4(1) board........................................................................................................... 4(1) Board....................................................................................... 172, Sch. 9, cl. 1 building line ................................................................................ Sch. 8, cl. 8(2) business arrangement .................................................................................15(5) chairperson.................................................................................................. 4(1) chief executive officer ................................................................................. 4(1) Commission ................................................................................................ 4(1) cost of providing a road ............................................................................159(3) CPI ..........................................................................................................159(2) decision period .........................................................................................280(1) deputy member............................................................................................ 4(1) deputy President.......................................................................................... 4(1) designated person ......................................................................................... 226 development................................................................................................ 4(1) development application.............................................................................. 4(1) district......................................................................................................... 4(1) district planning committee.......................................................................... 4(1) document ...................................................................................................18(4) environmental condition .................................................................. 4(1), 217(1) environmental harm..................................................................................217(1) EP Act ........................................................................................................ 4(1) EPA ............................................................................................................ 4(1) fee............................................................................................................288(1) first owner................................................................................................154(2) function....................................................................................................293(1) Fund ........................................................................................................... 4(1) Heritage Council ......................................................................................... 4(1) improvement plan........................................................................................ 4(1) information ................................................................................................18(4) instructions.................................................................................................39(1) interim development order........................................................................... 4(1) page 245 Planning and Development Bill 2004 Defined Terms issue.........................................................................................................288(1) LAA Department......................................................................................... 4(1) land................................................................................................. 4(1), 136(3) later subdivider.........................................................................................159(1) legal practitioner ......................................................................................... 4(1) licence......................................................................................................288(1) licence to use or occupy............................................................................136(3) licensed valuer .........................................................................................155(1) local interim development order .................................................................. 4(1) local order area............................................................................................ 4(1) local planning scheme ................................................................................. 4(1) lot ............................................................................................................... 4(1) market value of land.....................................................................155(1), 159(2) meeting ....................................................................................................293(1) member............................................................................... 4(1), 293(1), 294(1) metropolitan region ..................................................................................... 4(1) Metropolitan Region Scheme....................................................................... 4(1) Minister ...................................................................................................269(5) Minister for the Environment....................................................................... 4(1) non-conforming use...................................................................................... 172 officer of the Commission ........................................................................... 4(1) original compensation ..............................................................................181(1) original subdivider ...................................................................................159(1) other local government .............................................................................210(1) participate ..................................................................................................15(5) party............................................................................................................ 4(1) planning control area ................................................................................... 4(1) planning matter ........................................................................................288(1) planning scheme.......................................................................................... 4(1) pollution...................................................................................................217(1) prescribed offence ........................................................................................ 226 prescribed period......................................................................................145(2) President ..................................................................................................... 4(1) principal lot..............................................................................................149(2) Principal Registrar....................................................................................... 4(1) proposed amendment....................................................................... 45(1), 60(1) public authority ........................................................................................... 4(1) public purpose.............................................................................................. 172 public work ................................................................................................. 4(1) refund ......................................................................................................181(1) region.......................................................................................................... 4(1) region planning scheme ............................................................................... 4(1) regional interim development order ............................................................. 4(1) regional matter ...........................................................................................11(1) Regional Minister........................................................................................ 4(1) page 246 Planning and Development Bill 2004 Defined Terms regional order area....................................................................................... 4(1) register.......................................................................................181(16), 197(6) Registrar ........................................................................167(7), 181(16), 197(6) responsible authority ................................................................................... 4(1) road ............................................................................................................ 4(1) rules............................................................................................................ 4(1) rural land..................................................................................................149(1) scheme or amendment .................................................................................... 41 second owner ...........................................................................................154(2) specified.........................................................................................99(3), 103(3) State planning policy ................................................................................... 4(1) subdivision.................................................................................................. 4(1) Swan Valley................................................................................................ 4(1) Swan Valley Planning Committee................................................................ 4(1) tied lot......................................................................................................149(2) title application.........................................................................................146(2) TLA Department ......................................................................................... 4(1) Tribunal ...................................................................................................... 4(1) Tribunal member......................................................................................... 4(1) utility services ............................................................................................. 4(1) vehicle offence .........................................................................................225(1) WALGA ..................................................................................................... 4(1)
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