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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Planning and Development Bill 2005
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 9
Part 2 -- The Western Australian
Planning Commission
Division 1 -- Establishment and management
7. Commission established 10
8. Status 10
9. Management 10
10. Membership of board 10
11. Associate members 13
12. Constitution and proceedings 13
13. Remuneration and allowances 13
Division 2 -- Functions and powers
14. Functions of the Commission 13
15. Powers 15
16. Delegation by Commission 17
17. Directions by Minister 18
18. Minister to have access to information 19
19. Committees 20
20. Fees 20
Division 3 -- Administration
21. Secretary 20
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Planning and Development Bill 2005
Contents
22. Staff of Commission 20
23. Use of staff and facilities of public authorities 21
Division 4 -- Miscellaneous
24. Execution of documents 21
Part 3 -- State planning policies
25. Continuation of statements of planning policy 23
26. Preparation of State planning policy 23
27. Matters to which Commission is to have regard 23
28. Consultation 24
29. Approval of Governor 25
30. Publication of State planning policy 26
31. Amendment or repeal of State planning policy 26
32. Environmental review 26
Part 4 -- Region planning schemes
Division 1 -- Continuation and formulation of
region planning schemes
33. Planning schemes continued 27
34. Region planning schemes 27
35. Preparation of region planning scheme or amendment 27
36. Restrictions on making or amendment of region
planning scheme for metropolitan region 28
37. Region planning scheme may be amended or repealed 29
Division 2 -- Prerequisites to region planning
scheme or amendment
38. All proposed region planning schemes and
amendments to be referred to EPA 29
39. Environmental review and consent to public
submissions 29
40. Referrals to Swan Valley Planning Committee before
public submissions 31
Division 3 -- Making of region planning scheme
and amendments
41. Procedure 31
42. Consent to public submissions 31
43. Deposit and notification of scheme or amendment 32
44. Submissions to Commission 34
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Planning and Development Bill 2005
Contents
45. Role of Commission in relation to environmental
submissions on scheme or amendment 34
46. Person making submission may be heard 35
47. Referrals to Swan Valley Planning Committee after
public submissions 35
48. Submissions to Minister 35
49. Minister may withdraw scheme or amendment 36
50. Prerequisite for final approval of Minister 36
51. Directions by Minister 37
52. Procedure on modifications 37
53. Approval of Governor 38
54. Publication of scheme or amendment 38
55. Approval of scheme or amendment may be revoked 38
56. Scheme or amendment may be disallowed 39
Division 4 -- Minor amendments to region
planning scheme
57. Minor amendment 40
58. Notification of minor amendment 41
59. Consideration of submissions on minor amendment 42
60. Role of Commission in relation to environmental
submissions on minor amendment 42
61. Prerequisite for final approval by Minister of
proposed minor amendment 42
62. Minister may approve or decline to approve minor
amendment 43
Division 5 -- Consolidation of region planning
scheme
63. Minister may direct consolidation 44
64. Maps, plans, diagrams may be added or substituted 44
65. Certification and delivery of consolidation 45
66. Proof of consolidation 45
67. Consolidation of portion of region planning scheme 45
Part 5 -- Local planning schemes
Division 1 -- Continuation and formulation of
local planning schemes
68. Town planning schemes continued as local planning
schemes 46
69. General objects of local planning scheme 46
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Planning and Development Bill 2005
Contents
70. Scheme may be made for land outside scheme or be
concurrent with another scheme 46
71. Prohibition on making local planning scheme in
redevelopment area 47
72. Local government may prepare or adopt scheme 47
73. Provisions of local planning scheme 48
74. Local planning scheme may be repealed 49
75. Local planning scheme may be amended 49
Division 2 -- Minister's powers in relation to local
planning schemes
76. Minister may order local government to prepare or
adopt local planning scheme 49
Division 3 -- Relevant considerations in
preparation or amendment of local planning
scheme
77. Effect of State planning policy 50
78. Schemes and amendments applicable to the Swan
Valley 51
79. Advice from Heritage Council 52
80. Swan River management programme 52
81. Referral of scheme or amendment to EPA 52
82. Environmental review 53
83. Consultation of persons likely to be affected 54
Division 4 -- Advertisement and approval
84. Advertisement of scheme or amendment 55
85. Role of local governments in relation to
environmental submissions 55
86. Prerequisite to final approval by Minister 55
87. Approval and publication of scheme or amendment 56
Division 5 -- Review of local planning schemes
88. Local government to prepare consolidation 57
89. Submissions on consolidated scheme 58
90. Report on scheme 59
91. Procedure where no change to scheme 59
92. Procedure where amendments proposed 60
93. Effect of publication of consolidation 61
94. Procedure where new scheme prepared following
report 61
95. Procedure where scheme repealed following report 62
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Planning and Development Bill 2005
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96. Consolidation of 2 or more local planning schemes 62
Division 6 -- Crown land
97. Planning of town and suburban lands 62
Part 6 -- Interim development orders
Division 1 -- Regional interim development orders
98. Regional interim development orders 64
99. Contents of regional interim development order 65
100. Consultation with local government on development
approval 66
101. Restrictions on power to grant development approval 66
Division 2 -- Local interim development orders
102. Local interim development orders 66
103. Contents of local interim development orders 67
Division 3 -- Provisions applying to regional and
local interim development orders
104. Consultation with public authorities and utility
services providers 68
105. Publication of summary of interim development order 69
106. Administration of interim development order 69
107. Effect and duration of interim development order 70
108. Effect on continued use and permitted development 70
109. Amendment of interim development order 71
110. Revocation of interim development order 71
111. Non-conforming development by local government or
public authority 72
Part 7 -- Planning control areas
112. Declaration of planning control areas 74
113. Declaration may be amended or revoked 75
114. Duration of declaration 75
115. Applications for approval of development in planning
control areas 75
116. Commission may approve or refuse application 75
117. Commission may revoke approval 76
118. Effect of Part 77
Part 8 -- Improvement plans
119. Commission may recommend improvement plan 78
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Planning and Development Bill 2005
Contents
120. Improvement plan may be amended or revoked 79
121. Commission may develop land included in
improvement plan 79
122. Nothing in this Part derogates from other powers 80
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 81
124. Effect of region planning scheme on local planning
scheme 81
125. Minister may direct local government to amend local
planning scheme for consistency 82
126. Zoning amended by region planning scheme 83
127. Minister may direct local government to modify
proposed scheme or amendment 84
128. Minister may direct local government to adopt scheme
or amendment 84
129. Effect of interim development order on local planning
scheme and local laws 86
130. Planning control area provisions prevail 86
131. Compliance with local government regulations 87
132. Governor may suspend operation of certain written
laws 87
Part 10 -- Subdivision and development
control
Division 1 -- Application
133. Application to Crown land 88
134. Application, and effect, of other written laws 88
Division 2 -- Approval for subdivision and certain
transactions
135. Approval required for subdivision 89
136. Approval required for certain transactions where land
not dealt with as a lot or lots 90
137. Applications in respect of heritage land 91
138. Approval of Commission 92
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Contents
139. Approved classes of lease or licence 93
140. Saving of certain agreements 94
141. Refund where transaction cannot be completed 95
142. Objections and recommendations 96
143. How Commission is to deal with plan of subdivision 97
144. Reconsideration of refusal to approve plan of
subdivision 97
145. Endorsement of approval upon diagram or plan of
survey of subdivision 98
146. No certificate of title for subdivided land without
endorsement of Commission approval 99
147. Approval required for certain transfers and other
dealings 101
Division 3 -- Conditions of subdivision
148. Conditions as to development 101
149. Conditions on rural land (tied lots) 102
150. Conditions on road access 104
151. Reconsideration of conditions 105
152. Certain land to vest in the Crown 105
153. When owner may pay money in lieu of land being set
aside for open space 107
154. How money received in lieu of open space is to be
dealt with 108
155. How value of portion is determined 109
156. Dispute as to valuation 110
157. When approval of subdivision is deemed to be
approval under planning scheme 110
Division 4 -- Subdivision costs
158. Expenses of road or waterway construction and road
drainage 111
159. Subdivider may recover portion of road costs from
subsequent subdivider 112
160. How subdivision costs recovered 114
161. When land is subdivided 114
Division 5 -- Development controls
162. Development requires approval 114
163. Heritage places 115
164. Development may be approved after commencement 115
Division 6 -- Miscellaneous
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165. Record of conditions on title 116
166. Encroachments 116
167. Easements 117
168. Roads 119
169. Commission may fix minimum standards of
construction 121
170. Local government to be provided with specifications
for roads and waterways 121
Part 11 -- Compensation and
acquisition
Division 1 -- General matters in relation to
compensation
171. Only one entitlement to compensation 123
Division 2 -- Compensation where land injuriously
affected by planning scheme
172. Meaning of terms used in this Division 123
173. Entitlement to compensation where land injuriously
affected by planning scheme 124
174. When land is injuriously affected 124
175. No entitlement to compensation where provisions are,
or could have been, in certain other laws 126
176. How questions determined 126
177. When compensation is payable if land reserved for
public purpose 127
178. When claim for compensation may be made 128
179. Amount of compensation for injurious affection
arising out of reservation for public purposes 129
180. Notification may be lodged if compensation paid 130
181. Responsible authority may recover compensation if
reservation revoked or reduced 130
182. Board of Valuers 134
183. Valuations by the Board 135
Division 3 -- Other compensation
184. Betterment, and compensation where scheme
amended or repealed 136
185. Compensation in relation to interim development
order 137
186. Compensation in relation to planning control areas 138
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Planning and Development Bill 2005
Contents
Division 4 -- Purchase or compulsory acquisition
187. Election to acquire instead of compensation 138
188. How value of land is to be determined 139
189. Commission may purchase land before scheme has
force of law 140
190. Responsible authority may purchase land 140
191. Responsible authority may take land comprised in
scheme 140
192. Valuation of land or improvements acquired by
responsible authority 141
193. Responsible authority has powers of owner of land 142
194. Responsible authority may grant easements 142
195. Commission may acquire land included in
improvement plan 143
196. Commission may dispose of land acquired by it 143
197. Governor may declare land to be held and used for
region planning scheme 144
Part 12 -- Financial provisions
Division 1 -- Metropolitan Region Improvement
Fund
198. Metropolitan Region Improvement Fund 146
199. Use of Fund 146
Division 2 -- Metropolitan Region Improvement
Tax
200. Owners' liability to pay Metropolitan Region
Improvement Tax 147
201. How tax collections are dealt with 148
Division 3 -- Financial provisions relating to the
Commission
202. Saving 149
203. Funds of the Commission 149
204. Approval of the Minister to certain expenditure 149
205. Borrowing restrictions 149
206. Borrowing from Treasurer 150
207. Guarantees of borrowing etc. 150
208. Application of Financial Administration and Audit
Act 1985 151
209. Land of Commission not subject to rates etc. 151
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Planning and Development Bill 2005
Contents
Division 4 -- Financial provisions relating to local
governments
210. Apportionment of expenses between local
governments 151
Part 13 -- Enforcement and legal
proceedings
Division 1 -- Enforcement
211. Minister may give orders to local government 153
212. Minister may assume powers of local government or
enforce review decision 154
213. Effect of amendment, scheme, consolidation or repeal
prepared by Minister 156
214. Directions by responsible authority regarding
unauthorised development 156
215. Responsible authority may remove or alter
unauthorised development 158
216. Injunction 159
217. Powers of Minister to ensure that environmental
conditions are met 160
Division 2 -- Offences
218. Contravention of planning scheme 162
219. Unauthorised subdivision works 162
220. Development in planning control area without prior
approval 163
221. Contravention of interim development order 163
222. Development in heritage place without approval 163
223. Penalty for offence 164
224. Other enforcement provisions not affected 164
225. Onus of proof in vehicle offence may be shifted 164
Division 3 -- Infringement notices
226. Interpretation 165
227. Prescribed offences 166
228. Giving of infringement notice 166
229. Content of infringement notice 166
230. Extension of time 167
231. Withdrawal of infringement notice 167
232. Benefit of paying modified penalty 167
233. Application of penalties collected 168
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Planning and Development Bill 2005
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234. Appointment of designated persons 168
235. Notice placing onus on vehicle owner 168
Part 14 -- Applications for review
Division 1 -- Making and determination of
applications for review
236. When this Part applies 170
237. Terms used in this Part 171
238. Qualifications of members 171
239. Representation 172
240. Tribunal to invite submissions from Minister for the
Environment before determining certain applications 173
241. Tribunal to have regard to certain matters 173
242. Submissions from persons who are not parties 174
243. Exclusion of powers to join parties 174
244. Review by President 174
245. Minister may make submissions 175
246. Minister may call in application 176
247. Determination of application by Minister 177
248. Laying before House of Parliament that is not sitting 178
Division 2 -- Decisions which may be reviewed
249. Application for review of decision under interim
development order 179
250. Application for review of decision in respect of
development in planning control area 180
251. Application for review of certain decisions under
Part 10 180
252. Application for review of exercise of discretionary
power under a planning scheme 181
253. Notice of default for purposes of this Division 182
Division 3 -- Other applications for review
254. Application for review of decision under section 48I
of EP Act 183
255. Application for review of section 214 direction 183
Part 15 -- Subsidiary legislation
Division 1 -- Subsidiary legislation made by
Minister
256. General provisions of planning schemes 185
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Planning and Development Bill 2005
Contents
257. Court may order compensation in respect of certain
breaches of general regulations 185
258. Procedure and costs for local planning schemes 186
259. Environmental review expenses 187
260. Penalties 187
Division 2 -- Subsidiary legislation made by
Governor
261. Local government fees 188
262. Uniform general local laws 189
263. Governor may make regulations 190
Division 3 -- General
264. Regulations may adopt codes and other texts 191
Part 16 -- Miscellaneous
265. Delegation by Minister 193
266. Duties and liabilities of persons performing functions
under this Act 193
267. Protection from liability for wrongdoing 195
268. Review of Act 196
Schedule 1 -- Constitution and
proceedings of the Board
1. Terms used in this Schedule 197
2. Term of office 197
3. Extent of duties 197
4. Resignation and removal 197
5. Leave of absence 198
6. Deputy chairperson 198
7. Deputy members 199
8. Meetings 199
9. Resolution without meeting 200
10. Telephone or similar meetings 200
11. Minutes of meetings 200
12. Procedures 200
Schedule 2 -- Committees
1. Committees -- general 201
2. Deputy members -- local government representatives 202
3. Executive, Finance and Property Committee 202
4. Statutory Planning Committee 203
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Planning and Development Bill 2005
Contents
5. Sustainable Transport Committee 204
6. Infrastructure Coordinating Committee 205
7. Coastal Planning and Coordination Council 206
8. Regional planning committees 208
9. District planning committees 209
Schedule 3 -- Metropolitan region
Schedule 4 -- Other regions
1. Gascoyne Region 213
2. Goldfields-Esperance Region 213
3. Great Southern Region 213
4. Kimberley Region 213
5. Mid West Region 213
6. Peel Region 213
7. Pilbara Region 213
8. South West Region 214
9. Wheatbelt Region 214
Schedule 5 -- Local governments --
metropolitan region
1. SOUTH-WEST GROUP 215
2. WESTERN SUBURBS GROUP 215
3. NORTH-WEST GROUP 215
4. SOUTH-EAST GROUP 216
5. EASTERN GROUP 216
Schedule 6 -- Planning control areas:
purposes for which land may be
required
Schedule 7 -- Matters which may be
dealt with by planning scheme
1. Generality preserved 218
2. Subdivision 218
3. Reconstruction 218
4. Preservation and conservation 218
5. Roads, public works, undertakings, purposes and
facilities 219
6. Zoning 219
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Contents
7. Special controls 219
8. Development standards 219
9. Development controls 220
10. Acquisition and purchase 220
11. Powers 220
12. Agreements and cooperation 220
13. Carrying out the scheme 220
14. Application for review 221
15. General and ancillary matters 221
Schedule 8 -- Matters for which local
laws may be made by Governor
1. Purchase and reservation of land 222
2. Limitation of building 222
3. Classification and zoning 222
4. Prohibition of use 222
5. Prescribing characteristics of building 223
6. Prohibition of trade etc. or erection or use of building 223
7. Requirements of new subdivisions 223
8. Building lines 223
9. Open space etc. 224
10. Heights 224
11. Authority 224
Schedule 9 -- Board of Valuers
1. Interpretation 225
2. Term of office 225
3. Constitution of the Board 225
4. Resignation or removal from office 225
5. Fees and expenses 225
page xiv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Planning and Development Bill 2005
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:
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Planning and Development Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Planning and Development
Act 2005.
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 2005 (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,
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Planning and Development Bill 2005
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);
"artificial waterway" means an artificial channel, lake, harbour
or embayment, for navigational, ornamental and
recreational purposes, or for any of those purposes, and
includes any addition to, or alteration of, an artificial
10 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;
"chairperson" means the chairperson of the board;
15 "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
Commission established by section 7;
20 "Crown land" has the meaning given to that term in the Land
Administration Act 1997;
"deputy member" means a person appointed under Schedule 1
clause 7;
"development" means the development or use of any land,
25 including --
(a) any demolition, erection, construction, alteration of
or addition to any building or structure on the land;
(b) the carrying out on the land of any excavation or
other works;
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Planning and Development Bill 2005
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;
"land" includes --
(a) land, tenements and hereditaments;
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Planning and Development Bill 2005
Preliminary Part 1
s. 4
(b) any interest in land, tenements and hereditaments;
and
(c) houses, buildings, and other works and structures;
"legal practitioner" has the meaning given to that term in the
5 Legal Practice Act 2003;
"local interim development order" means an interim
development order made under section 102;
"local order area" means an area affected by, and specified in,
a local interim development order;
10 "local planning scheme" means a planning scheme of effect or
continued under Part 5;
"lot" means a defined portion of land --
(a) depicted on a plan or diagram --
(i) available from the TLA Department; or
15 (ii) deposited in the TLA Department or the
Registry of Deeds,
and for which a separate Crown Grant or certificate
of title has been or can be issued;
(b) depicted on a diagram or plan of survey of a
20 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
Act 1933;
(ii) a certificate of title registered under the
25 Transfer of Land Act 1893;
(iii) a survey into a location or lot under
section 27(2) of the Land Administration
Act 1997 or a certificate of Crown land title
the subject of such a survey;
30 (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
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Planning and Development Bill 2005
Part 1 Preliminary
s. 4
(v) a conveyance registered under the
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
5 common property on a survey-strata plan, as those terms
are defined in the Strata Titles Act 1985;
"member" means a member of the board;
"metropolitan region" means the region described in
Schedule 3;
10 "Metropolitan Region Scheme" means the planning scheme
continued under section 33(1), or any region planning
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
15 administration of the EP Act;
"officer of the Commission" means either of the following --
(a) the Secretary to the Commission appointed under
section 21(1);
(b) a public service officer referred to in section 22;
20 "planning control area" means a planning control area
declared and in force under section 112;
"planning scheme" means a local or region planning scheme
that has effect under this Act and includes --
(a) the provisions of the scheme; and
25 (b) all maps, plans, specifications and other particulars
contained in the scheme and colourings, markings or
legends on the scheme;
"public authority" means any of the following --
(a) a Minister of the Crown in right of the State;
30 (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,
who or which, under the authority of a written law,
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Planning and Development Bill 2005
Preliminary Part 1
s. 4
administers or carries on for the benefit of the State, a
social service or public utility;
"public work" includes any public work as defined in the
Public Works Act 1902;
5 "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
10 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
15 administration of the Regional Development Commissions
Act 1993;
"regional order area" means an area affected by, and specified
in, a regional interim development order;
"responsible authority" means --
20 (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
or order, or the execution of any works which under
the scheme or order, or this Act, are to be executed
25 by a local government; and
(b) in relation to a region planning scheme, regional
interim development order or planning control area,
the Commission or a local government exercising the
powers of the Commission;
30 "road" means a public thoroughfare for vehicles (as defined in
the Road Traffic Act 1974) or pedestrians, and includes
structures or other things appurtenant to the road that are
within its limits, and a thoroughfare is not prevented from
being a road only because it is not open at each end;
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Planning and Development Bill 2005
Part 1 Preliminary
s. 4
"State planning policy" means a planning policy approved
under section 29;
"subdivision" includes amalgamation;
"Swan Valley" has the meaning given to that term in the Swan
5 Valley Planning Act 1995;
"Swan Valley Planning Committee" has the meaning given to
that term in the Swan Valley Planning Act 1995;
"TLA Department" means the department principally assisting
in the administration of the Transfer of Land Act 1893;
10 "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
the Local Government Act 1995 and known as the Western
15 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
amendment of a local planning scheme" includes a
20 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
government" includes a reference to a planning scheme
25 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
construed in conjunction with the provisions of this Act relating
30 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
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Planning and Development Bill 2005
Preliminary Part 1
s. 5
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
5 (1) Except as provided in section 6 this Act binds the Crown.
(2) A region planning scheme binds the Crown.
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
10 Crown, or the Governor, or the Government of the State, or a
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
15 regard to --
(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
20 the amenity, of that locality at that time.
(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
25 public work will comply with subsection (2).
page 9
Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 1 Establishment and management
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;
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Planning and Development Bill 2005
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Establishment and management Division 1
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 Water and
Rivers Commission established by the Water and
Rivers Commission Act 1995;
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Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 1 Establishment and management
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).
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Planning and Development Bill 2005
The Western Australian Planning Commission Part 2
Functions and powers Division 2
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.
Division 2 -- Functions and powers
25 14. Functions of the Commission
The functions of the Commission are --
(a) to advise the Minister on --
(i) the coordination and promotion of land use,
transport planning and land development in the
30 State in a sustainable manner;
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Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 2 Functions and powers
s. 14
(ii) the administration, revision and reform of
legislation relating to land use, transport
planning and land development;
(iii) local planning schemes, and amendments to
5 those schemes, made or proposed to be made for
any part of the State;
(b) to prepare and keep under review --
(i) a planning strategy for the State; and
(ii) planning policies,
10 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
authorities and local governments on those matters;
(c) to plan for the coordinated provision of transport and
15 infrastructure for land development;
(d) to provide advice and assistance to any body or person
on land use planning and land development and in
particular to local governments in relation to local
planning schemes and their planning and development
20 functions;
(e) to undertake research and develop planning methods and
models relating to land use planning, land development
and associated matters;
(f) to keep under review the strategic planning for the
25 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
planning;
(g) to prepare and amend State planning policies under
30 Part 3;
(h) to prepare region planning schemes under Part 4;
(i) to keep under review each region planning scheme, to
review the scheme completely whenever requested by
the Minister to do so and to submit for approval under
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Planning and Development Bill 2005
The Western Australian Planning Commission Part 2
Functions and powers Division 2
s. 15
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
reserved under a region planning scheme and to carry
5 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;
(k) to establish, and exercise powers in relation to,
10 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
by this or any other written law.
15 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.
(2) Without limiting subsection (1), the Commission may, for the
20 purpose of performing a function --
(a) subject to this Act, acquire, hold and dispose of real and
personal property;
(b) enter into an agreement with any person under which
that person may acquire a lease of, a licence in respect
25 of, or any other estate or interest in, any land mentioned
in section 14(j);
(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
30 dispose of any patent, patent rights, copyright or similar
rights;
(d) enter into a contract or arrangement with a person or
body (including a local government or a department of
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Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 2 Functions and powers
s. 15
the Public Service, or other agency or instrumentality, in
the State or elsewhere) --
(i) for the supply of equipment by that person or
body;
5 (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
Commission and the rights referred to in
10 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
other agency or instrumentality, in the State or
15 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
and acquire, hold and dispose of shares, units or other
20 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
State or Territory or the Commonwealth.
25 (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
circumstances and for such periods as the Minister may
30 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
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Planning and Development Bill 2005
The Western Australian Planning Commission Part 2
Functions and powers Division 2
s. 16
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
5 trust, a joint venture, an arrangement for sharing profits or
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.
10 16. Delegation by Commission
(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.
15 (2) A resolution referred to in subsection (1) takes effect when
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
20 of such a committee;
(c) an officer of the Commission;
(d) a public authority or a member or officer of a public
authority; or
(e) a local government, a committee established under the
25 Local Government Act 1995 or an employee of a local
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
30 imposed on the Commission by this Act or any other written
law.
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Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 2 Functions and powers
s. 17
(5) Without limiting the generality of subsection (1), where the
Commission has delegated its functions under section 14(i)
and (l), the delegation includes, subject to the instrument of
delegation, a delegation of every function of the Commission
5 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
10 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
15 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
20 Commission is to give effect to any such direction.
(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.
25 (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,
30 the Minister is to transmit a copy of the direction to the Clerk of
that House.
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Planning and Development Bill 2005
The Western Australian Planning Commission Part 2
Functions and powers Division 2
s. 18
(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
occurred under subsection (4) is to be recorded in the Minutes,
5 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
authority of the Commission under section 66 of the Financial
10 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).
18. Minister to have access to information
15 (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
make and retain copies of, that document.
20 (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
information; and
25 (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
subsection (2) and make its staff and facilities available to the
30 Minister for the purposes of paragraph (c) of that subsection.
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Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 3 Administration
s. 19
(4) In this section --
"document" includes any tape, disc or other device or medium
on which information is recorded or stored mechanically,
photographically, electronically or otherwise;
5 "information" means information specified, or of a description
specified, by the Minister that relates to the functions of the
Commission.
19. Committees
Schedule 2 has effect with respect to committees established by
10 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
services provided by the Commission in connection with its
15 functions.
(2) Fees set under subsection (1) are payable by the person at whose
request or on whose application the act is done.
Division 3 -- Administration
21. Secretary
20 (1) The Commission may appoint a person to the office of
Secretary to the Commission.
(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.
25 22. Staff of Commission
Public service officers are to be appointed or made available
under Part 3 of the Public Sector Management Act 1994 to
enable the Commission and its committees to perform their
respective functions.
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Planning and Development Bill 2005
The Western Australian Planning Commission Part 2
Miscellaneous Division 4
s. 23
23. Use of staff and facilities of public authorities
(1) The Commission may, by arrangement made between it and the
relevant employer, make use, either full-time or part-time, of the
services of any officer or employee employed --
5 (a) in the Public Service;
(b) in a State agency; or
(c) otherwise in the service of the State.
(2) The Commission may by arrangement with --
(a) a department of the Public Service; or
10 (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
terms agreed to by the parties.
Division 4 -- Miscellaneous
15 24. Execution of documents
(1) The Commission is to have a common seal.
(2) A document is duly executed by the Commission if --
(a) the common seal of the Commission is affixed to it in
accordance with subsections (3) and (4); or
20 (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
document except as authorised by the Commission.
(4) The common seal of the Commission is to be affixed to a
25 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
particular case to be so present, and each of them is to sign the
document to attest that the common seal was so affixed.
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Planning and Development Bill 2005
Part 2 The Western Australian Planning Commission
Division 4 Miscellaneous
s. 24
(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,
either generally or subject to such conditions or restrictions as
5 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.
(7) A document executed by a person under this section without the
10 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
the common seal of the Commission, it is to be presumed that
15 the seal is the common seal of the Commission until the
contrary is shown.
page 22
Planning and Development Bill 2005
State planning policies Part 3
Miscellaneous Division 4
s. 25
Part 3 -- State planning policies
25. Continuation of statements of planning policy
Any statement of planning policy in force under the Town
Planning and Development Act 1928 immediately before this
5 section comes into operation --
(a) continues in force as a State planning policy under this
Act; and
(b) has effect accordingly.
26. Preparation of State planning policy
10 (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
planning throughout the State by local governments.
15 (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 --
(a) generally or in a particular class of matter or in
20 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
in that portion or those portions of the State.
25 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
influences;
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Planning and Development Bill 2005
Part 3 State planning policies
Division 4 Miscellaneous
s. 28
(b) conservation of natural or cultural resources for social,
economic, environmental, ecological and scientific
purposes;
(c) characteristics of land;
5 (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
10 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
15 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.
20 (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
25 Commission considers to be convenient for public
inspection.
(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
30 a Sunday newspaper a notice stating --
(a) in short, the purpose of the proposed State planning
policy;
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Planning and Development Bill 2005
State planning policies Part 3
Miscellaneous Division 4
s. 29
(b) that the proposed policy has been deposited and the
places and times at which it may be inspected free of
charge; and
(c) the period (being a period of not less than 60 days after
5 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
Commission --
10 (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
(b) is to take such steps to make public the details of the
15 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.
(5) The Commission is to consider any submissions with respect to
20 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
the Commission with or without such modifications as the
25 Minister may recommend and the Governor thinks necessary to
make and which the Governor is by this subsection authorised
to make.
(2) A State planning policy has no force or effect until it is
approved by the Governor and published in the Gazette.
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Planning and Development Bill 2005
Part 3 State planning policies
Division 4 Miscellaneous
s. 30
30. Publication of State planning policy
The Commission is to cause a copy of any State planning policy
approved by the Governor --
(a) to be published in the Gazette; and
5 (b) to be forwarded to each local government, any portion
of the district of which is included in the area covered
by the policy.
31. Amendment or repeal of State planning policy
(1) A State planning policy may be amended by amendments
10 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 --
(a) a subsequent State planning policy; or
(b) an instrument of repeal --
15 (i) made by the Commission with the approval of
the Minister, or on a direction of the Minister;
and
(ii) approved by the Minister and published in the
Gazette.
20 (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.
32. Environmental review
The Commission may, in relation to a particular State planning
25 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
(b) that policy or amendment were a local planning scheme,
but otherwise this Part applies to that policy or amendment.
page 26
Planning and Development Bill 2005
Region planning schemes Part 4
Continuation and formulation of region planning schemes Division 1
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.
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
30 scheme.
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 1 Continuation and formulation of region planning schemes
s. 36
(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
5 region planning scheme, the Commission is to ensure
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
10 The Metropolitan Region Scheme and any other region scheme
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
15 Act 1988; or
(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
20 Order made under section 59 of the Heritage of Western
Australia Act 1990, except in so far as may be ordered
on an application or referral made under section 60 of
that Act to the State Administrative Tribunal;
(c) without limiting section 38 of the East Perth
25 Redevelopment Act 1991, section 45 of the Subiaco
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
30 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
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Planning and Development Bill 2005
Region planning schemes Part 4
Prerequisites to region planning scheme or amendment Division 2
s. 37
(d) without limiting section 23 of the Hope Valley-Wattleup
Redevelopment Act 2000, to make any provision in
respect of land in the redevelopment area as defined in
that Act.
5 37. Region planning scheme may be amended or repealed
(1) A region planning scheme may be amended under this Act.
(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,
10 approved by the Minister and published in the Gazette.
Division 2 -- Prerequisites to region planning scheme
or amendment
38. All proposed region planning schemes and amendments to
be referred to EPA
15 (1) When the Commission resolves to prepare a region planning
scheme or an amendment to a region planning scheme, the
Commission is to forthwith refer that scheme or amendment to
the EPA by giving to the EPA --
(a) written notice of the resolution; and
20 (b) such written information about that scheme or
amendment as is sufficient to enable the EPA to comply
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
25 the amendment constitutes a substantial alteration to a region
planning scheme.
39. Environmental review and consent to public submissions
(1) In this section --
"instructions" means instructions issued under
30 section 48C(1)(a) of the EP Act.
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 2 Prerequisites to region planning scheme or amendment
s. 39
(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
5 environmental review of that scheme or amendment in
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
10 that scheme under section 58, as the case requires, until --
(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,
15 or 30 days have elapsed since the review was forwarded
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
20 in accordance with the relevant instructions, the Commission
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
25 Environment and, if possible, agree with the Minister for
the Environment on whether or not the review has been
undertaken in accordance with those instructions.
(5) If the Minister, having complied with a request under
subsection (4), and the Minister for the Environment --
30 (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.
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Planning and Development Bill 2005
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Making of region planning scheme and amendments Division 3
s. 40
40. Referrals to Swan Valley Planning Committee before public
submissions
(1) The Commission, before submitting to the Minister under
section 42 a scheme or amendment that would apply to land in
5 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
Commission allows, is to give to the Commission its written
10 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 to be taken to have no advice to give
on the scheme or amendment.
15 (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
to prepare the scheme or amendment in accordance with any
20 advice given by the Committee under this section.
Division 3 -- Making of region planning scheme
and amendments
41. Procedure
Subject to Division 4, the Commission is to adopt the procedure
25 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
30 Subject to Division 4, the scheme or amendment when prepared
by the Commission and after sections 38 and 39 have been
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 3 Making of region planning scheme and amendments
s. 43
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
submissions being sought.
5 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 --
(a) the scheme or amendment; and
10 (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).
(2) For the purposes of subsection (1) the scheme or amendment
15 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
Metropolitan Region Scheme --
(i) at the offices of the local governments of the
20 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
Commission considers to be most convenient for
public inspection;
25 and
(b) in the case of an amendment to the Metropolitan Region
Scheme --
(i) at the offices of the Commission;
(ii) at the offices of the City of Perth and the City of
30 Fremantle; and
(iii) at not less than 3 other public places in the
metropolitan region which the Commission
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Planning and Development Bill 2005
Region planning schemes Part 4
Making of region planning scheme and amendments Division 3
s. 43
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
5 3 times in each of the following publications --
(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
10 region planning scheme applies,
a notice stating --
(d) in short, the purpose and planning objectives of the
scheme or amendment;
(e) that the scheme or amendment has been deposited and
15 the places and times at which it may be inspected free of
charge; and
(f) that submissions on any provision of the scheme or
amendment may be made to the Commission in the form
specified in the notice within the period specified in the
20 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
of land, the Commission, within 7 days of the publication of the
notice in the Gazette, is to make reasonable endeavours to give
25 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 --
(a) make reasonable endeavours to consult in respect of the
scheme or amendment such public authorities and
30 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
or amendment as the Minister may direct,
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 3 Making of region planning scheme and amendments
s. 44
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
5 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.
45. Role of Commission in relation to environmental
10 submissions on scheme or amendment
(1) In this section --
"proposed amendment" means proposed amendment to a
region planning scheme under this Division.
(2) When the Commission has been informed under
15 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 --
(a) as soon as practicable, but in any event within 7 days
after the expiry of the period referred to in section 44(1),
20 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
scheme or proposed amendment; and
(b) within 42 days, or such longer period as the Minister
25 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
submissions referred to in paragraph (a) and received
within that period.
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Planning and Development Bill 2005
Region planning schemes Part 4
Making of region planning scheme and amendments Division 3
s. 46
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
submission by the Commission or by a committee established
5 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).
47. Referrals to Swan Valley Planning Committee after public
10 submissions
(1) Where as required by section 40(5), a scheme or amendment has
been prepared in accordance with advice given by the Swan
Valley Planning Committee and after considering public
submissions on the scheme or amendment the Commission has
15 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
section 48, refer the scheme or amendment, with the other
documents referred to in that section, back to the Committee for
20 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
other documents referred to it under subsection (1) it is to give a
written report to the Commission and that report is to be
25 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
Commission within 42 days of the referral under subsection (2)
it is to be taken to have no comment to make or advice to give.
30 48. Submissions to Minister
(1) Subject to section 47, after --
(a) sections 38 and 39 have been complied with in relation
to the scheme or amendment; and
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 3 Making of region planning scheme and amendments
s. 49
(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
5 make;
(d) a copy of each of those submissions; and
(e) a report by the Commission on those submissions.
(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
10 as, or include it in, the report of the Commission.
49. Minister may withdraw scheme or amendment
If --
(a) the report of the Commission; or
(b) in the case of a scheme or amendment that would apply
15 to land in the Swan Valley, a report of the Swan Valley
Planning Committee under section 47,
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
20 amendment to the Governor for consideration, withdraw the
scheme or amendment.
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
25 the Minister has reached agreement with the 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 scheme or
amendment should not be assessed by the EPA under
30 Part IV Division 3 of the EP Act;
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Planning and Development Bill 2005
Region planning schemes Part 4
Making of region planning scheme and amendments Division 3
s. 51
(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 scheme or amendment is subject; or
5 (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
conditions, if any, to which that scheme or amendment is
10 subject have been incorporated into that scheme or amendment.
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
15 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
20 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.
25 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
30 on the submission to the Minister in accordance with the
procedure set out in sections 46 and 48.
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 3 Making of region planning scheme and amendments
s. 53
(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
Minister may, instead of presenting the scheme or amendment
5 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
under section 49 or 52(3), the Minister is to present the scheme
10 or amendment to the Governor.
(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.
15 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
20 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
25 (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
30 Gazette, revoke his or her approval of part of the scheme or
amendment.
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Planning and Development Bill 2005
Region planning schemes Part 4
Making of region planning scheme and amendments Division 3
s. 56
(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
amendment, or, if the approval is revoked in respect of part of
5 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
before the scheme is laid before both Houses of Parliament --
10 (a) section 56(1) does not apply in respect of the scheme or
amendment; and
(b) notice of the revocation is to be published in the
Gazette.
(5) If the approval of the scheme or amendment is revoked under
15 subsection (1) after the scheme or amendment is laid before
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.
20 56. Scheme or amendment may be disallowed
(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
25 publication of the scheme or amendment in the Gazette.
(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
30 amendment.
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 4 Minor amendments to region planning scheme
s. 57
(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
5 scheme or amendment, notice of the disallowance is to be
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
10 them; or
(b) 12 sitting days referred to in subsection (2) or some of
them,
occur during the same session of Parliament, or the same
Parliament, as that in which the relevant scheme or amendment
15 is laid before the House of Parliament concerned.
Division 4 -- Minor amendments to region planning scheme
57. Minor amendment
(1) If a proposed amendment does not, in the opinion of the
Commission, constitute a substantial alteration to a region
20 planning scheme, that amendment --
(a) is not required to be submitted and approved in
accordance with the procedure prescribed in Division 3;
and
(b) instead, may be submitted and approved in accordance
25 with the procedure prescribed in this Division.
(2) Despite subsection (1), an amendment cannot be made to the
Metropolitan Region Scheme under this Division to change the
zoning of any land in the Swan Valley.
page 40
Planning and Development Bill 2005
Region planning schemes Part 4
Minor amendments to region planning scheme Division 4
s. 58
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
prescribed in Division 3, the Commission, after sections 38
5 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
circulating in the area to which the region scheme
10 applies a notice --
(i) describing the amendment;
(ii) stating where and when the amendment will be
available for inspection;
(iii) stating that submissions on any provision of the
15 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
than 60 days after publication of the notice); and
(iv) certifying that, in the opinion of the Commission,
20 the amendment does not constitute a substantial
alteration to the relevant region planning scheme;
(c) if the amendment changes the zoning or reservation of
land, within 7 days of the publication referred to in
paragraph (b), make reasonable endeavours to give
25 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
amendment such public authorities and persons as
appear to the Commission to be likely to be affected by
30 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
the submission.
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 4 Minor amendments to region planning scheme
s. 59
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
5 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
10 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 amendment
should be assessed by the EPA under Part IV Division 3 of the
EP Act, the Commission is to --
15 (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
20 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
25 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
30 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
page 42
Planning and Development Bill 2005
Region planning schemes Part 4
Minor amendments to region planning scheme Division 4
s. 62
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 amendment
5 should not be assessed by the 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
10 any, to which that 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
informed the Commission under that section,
whichever first occurs, and the Minister is satisfied that the
15 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
20 under section 59, the Minister may, after complying with
section 61 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,
25 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
30 subsection (1), as the case requires, excluding any maps,
plans or diagrams forming part of that amendment, to be
published in the Gazette; and
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Planning and Development Bill 2005
Part 4 Region planning schemes
Division 5 Consolidation of region planning scheme
s. 63
(b) any maps, plans or diagrams forming part of that
amendment to be open for inspection at such times and
places as the Commission determines.
(3) The amendment or the amendment as modified under
5 subsection (1), as the case requires, has effect on publication
under subsection (2) as if it were enacted by this Act.
Division 5 -- Consolidation of region planning scheme
63. Minister may direct consolidation
(1) The Minister may direct the Commission to deliver to the
10 Minister a consolidation of a region planning scheme as in force
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
15 the date specified in the direction.
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
20 diagrams, prepared on such scale or scales, as, in the opinion of
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)
25 necessitates the making of a consequential amendment to the
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 to be
30 taken to be amended accordingly on and from the publication of
notice of consolidation under section 66(1) but the provisions of
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Planning and Development Bill 2005
Region planning schemes Part 4
Consolidation of region planning scheme Division 5
s. 65
Divisions 3 and 4 and the Metric Conversion Act 1972 do not
apply to any such addition, substitution or other amendment.
65. Certification and delivery of consolidation
After preparing the consolidation the Commission is to --
5 (a) seal the consolidation and certify on the consolidation
that it is a correct statement and representation of the
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.
10 66. Proof of consolidation
(1) If the Minister approves of the consolidation and signs the
consolidation, the Commission is to publish notice of the
consolidation in the Gazette.
(2) After publication of the notice --
15 (a) the consolidation is to be judicially noticed by all courts,
tribunals, bodies and persons; and
(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
20 on the date specified in the Minister's direction.
67. Consolidation of portion of region planning scheme
(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
25 other portion of the scheme) as is specified in the direction.
(2) The provisions of this Division apply to and in relation to the
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 45
Planning and Development Bill 2005
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
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Planning and Development Bill 2005
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 as defined in the East Perth
Redevelopment Act 1991, the Subiaco Redevelopment
Act 1994, the Midland Redevelopment Act 1999 or the
Armadale Redevelopment Act 2001, so long as there is
15 in operation in respect of that land a redevelopment
scheme under Part 4 of any of those Acts; or
(b) in the redevelopment area as defined in the Hope
Valley-Wattleup Redevelopment Act 2000.
72. Local government may prepare or adopt scheme
20 (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
(b) adopt, with or without modifications, a local planning
25 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 --
(a) jointly prepare a local planning scheme with respect to
30 land that is partly in the district of the first-mentioned
local government and partly in the district of the other
local government; or
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Planning and Development Bill 2005
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 256;
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 48
Planning and Development Bill 2005
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
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Planning and Development Bill 2005
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 50
Planning and Development Bill 2005
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 to be 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 51
Planning and Development Bill 2005
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 52
Planning and Development Bill 2005
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 53
Planning and Development Bill 2005
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 259, 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 54
Planning and Development Bill 2005
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.
30 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
page 55
Planning and Development Bill 2005
Part 5 Local planning schemes
Division 4 Advertisement and approval
s. 87
section 81 if the Minister has reached agreement with the
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
5 EP Act that the EPA considers that that local planning
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
section 48F(2), or a decision has been made under
10 section 48J, of the EP Act in respect of the conditions, if
any, to which that local planning 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
15 informed the local government under that section,
whichever first occurs, and the Minister is satisfied that the
conditions, if any, to which that amendment is subject have
been incorporated into that local planning scheme or
amendment.
20 87. Approval and publication of scheme or amendment
(1) Subject to section 83, after advertisement under section 84 and
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
25 submitted to the Minister for the approval of the Minister.
(2) The Minister may, in relation to a local planning scheme or
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
30 local planning scheme or amendment in such manner as
the Minister specifies before the local planning scheme
or amendment is resubmitted for the Minister's approval
under this subsection; or
page 56
Planning and Development Bill 2005
Local planning schemes Part 5
Review of local planning schemes Division 5
s. 88
(c) refuse to approve of that local planning scheme or
amendment.
(3) When the Minister has approved a local planning scheme or an
amendment to a local planning scheme, the local government is
5 to --
(a) cause the scheme or amendment to be published in the
Gazette;
(b) advertise the scheme or amendment in accordance with
the regulations; and
10 (c) ensure that copies of the scheme or amendment are
available to the public.
(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
15 Act.
(5) It is sufficient compliance with subsection (3) if a local planning
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.
20 Division 5 -- Review of local planning schemes
88. Local government to prepare consolidation
(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
25 that have been made to the scheme and are of effect on the day
on which the resolution to prepare the consolidation is made.
(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;
30 (b) in the case of a scheme in respect of which a
consolidation has been published in the Gazette under
page 57
Planning and Development Bill 2005
Part 5 Local planning schemes
Division 5 Review of local planning schemes
s. 89
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
5 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
10 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
15 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
20 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).
25 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.
(2) When the consolidation has been approved by the Commission,
30 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.
page 58
Planning and Development Bill 2005
Local planning schemes Part 5
Review of local planning schemes Division 5
s. 90
90. Report on scheme
(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.
5 (2) In its report the local government is to --
(a) include all submissions received under section 89;
(b) report and make recommendations on the submissions;
and
(c) report and make recommendations as to whether or not
10 the scheme --
(i) is satisfactory in its existing form;
(ii) should be amended;
(iii) should be repealed and a new scheme prepared in
its place; or
15 (iv) should be repealed.
91. Procedure where no change to scheme
(1) If --
(a) a report of a local government under section 90
recommends that a local planning scheme is satisfactory
20 in its existing form and the Minister concurs; or
(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
25 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
30 planning scheme.
page 59
Planning and Development Bill 2005
Part 5 Local planning schemes
Division 5 Review of local planning schemes
s. 92
(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
5 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
10 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
15 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.
(2) After the Minister has under section 87(2), approved the
amendments prepared for the purposes of subsection (1), the
20 local government is to --
(a) prepare a consolidation of the local planning scheme,
incorporating --
(i) all the amendments that have been made to the
scheme and are of effect on the day on which the
25 resolution to prepare the consolidation is made;
and
(ii) the amendments prepared for the purposes of
subsection (1) and approved by the Minister
under section 87(2);
30 and
(b) publish the consolidation of the local planning scheme
in the Gazette.
page 60
Planning and Development Bill 2005
Local planning schemes Part 5
Review of local planning schemes Division 5
s. 93
(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.
5 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
10 persons; and
(b) is to be 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
15 consolidation published under section 92, including the
amendments prepared for the purposes of subsection (1)
of that section and approved by the Minister.
(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
20 consolidation of a local planning scheme published under
section 91 or 92.
94. Procedure where new scheme prepared following report
If --
(a) a report of a local government under section 90
25 recommends that a local planning scheme should be
repealed and a new scheme prepared in its place and the
Minister concurs; or
(b) the Minister, after considering the report, advises the
local government that the local planning scheme should
30 be repealed and a new scheme prepared in its place,
the new scheme is to be prepared by the local government and
made in accordance with this Part, within the period of
page 61
Planning and Development Bill 2005
Part 5 Local planning schemes
Division 6 Crown land
s. 95
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
5 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
10 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
15 agree from the date of the report or the date of the Minister's
advice as the case may be.
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
20 consolidated with effect from the date on which they were last
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
25 (1) If Crown land is to be sold, leased or disposed of, the
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.
page 62
Planning and Development Bill 2005
Local planning schemes Part 5
Crown land Division 6
s. 97
(3) A scheme prepared under this section, if approved by the
Minister and published in the Gazette, has the same effect as a
local planning scheme made and approved under this Part.
(4) The provisions of this Act, other than Part 10, so far as
5 consistent and applicable, apply to and in respect of a scheme
prepared under this section, as if the Commission were the
responsible authority.
(5) If --
(a) a scheme is prepared, approved and published under this
10 section; and
(b) Crown land the subject of the scheme is sold, leased or
disposed of,
the Commission, with the approval of the Minister, may --
(c) suspend, vary, supplement, or supersede any of the
15 provisions of the scheme;
(d) agree with a local government to be jointly responsible
with that local government, as the responsible authority
under and for the purposes of the scheme either with
respect to all, or part, of the scheme; or
20 (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.
(6) After subsection (7) has been complied with in respect of a
25 scheme to which subsection (5)(e) applies, the scheme is to be
taken to be a local planning scheme prepared by the local
government substituted as the responsible authority and this Act
applies accordingly.
(7) Where the Commission exercises a power under subsection (5)
30 and as a result a scheme is amended, the Minister is to cause
notice of the amendment to be published in the Gazette.
page 63
Planning and Development Bill 2005
Part 6 Interim development orders
Division 1 Regional interim development orders
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 64
Planning and Development Bill 2005
Interim development orders Part 6
Regional interim development orders Division 1
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 65
Planning and Development Bill 2005
Part 6 Interim development orders
Division 2 Local interim development orders
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 66
Planning and Development Bill 2005
Interim development orders Part 6
Local interim development orders Division 2
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 67
Planning and Development Bill 2005
Part 6 Interim development orders
Division 3 Provisions applying to regional and local interim development
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 68
Planning and Development Bill 2005
Interim development orders Part 6
Provisions applying to regional and local interim development Division 3
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 69
Planning and Development Bill 2005
Part 6 Interim development orders
Division 3 Provisions applying to regional and local interim development
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 70
Planning and Development Bill 2005
Interim development orders Part 6
Provisions applying to regional and local interim development Division 3
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 71
Planning and Development Bill 2005
Part 6 Interim development orders
Division 3 Provisions applying to regional and local interim development
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 72
Planning and Development Bill 2005
Interim development orders Part 6
Provisions applying to regional and local interim development Division 3
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 73
Planning and Development Bill 2005
Part 7 Planning control areas
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 as defined in 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 74
Planning and Development Bill 2005
Planning control areas Part 7
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 75
Planning and Development Bill 2005
Part 7 Planning control areas
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 76
Planning and Development Bill 2005
Planning control areas Part 7
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 77
Planning and Development Bill 2005
Part 8 Improvement plans
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 78
Planning and Development Bill 2005
Improvement plans Part 8
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 79
Planning and Development Bill 2005
Part 8 Improvement plans
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 80
Planning and Development Bill 2005
Relationship between region planning schemes, local planning Part 9
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 81
Planning and Development Bill 2005
Part 9 Relationship between region planning schemes, local planning
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 82
Planning and Development Bill 2005
Relationship between region planning schemes, local planning Part 9
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 83
Planning and Development Bill 2005
Part 9 Relationship between region planning schemes, local planning
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 84
Planning and Development Bill 2005
Relationship between region planning schemes, local planning Part 9
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 85
Planning and Development Bill 2005
Part 9 Relationship between region planning schemes, local planning
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 86
Planning and Development Bill 2005
Relationship between region planning schemes, local planning Part 9
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 87
Planning and Development Bill 2005
Part 10 Subdivision and development control
Division 1 Application
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 as defined in 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 88
Planning and Development Bill 2005
Subdivision and development control Part 10
Approval for subdivision and certain transactions Division 2
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 to be 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 89
Planning and Development Bill 2005
Part 10 Subdivision and development control
Division 2 Approval for subdivision and certain transactions
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 as defined in 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 90
Planning and Development Bill 2005
Subdivision and development control Part 10
Approval for subdivision and certain transactions Division 2
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(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.
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(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 to be 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;
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(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 under that section; or
15 (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
of a local planning scheme to the extent necessary for
20 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
grant a licence to use or occupy land for a term of any duration
25 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
(b) complies with such conditions as are imposed under
30 subsection (3) in respect of that person.
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(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.
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
30 Commission having been first obtained as required under this
Division, that agreement is to be taken not to have been entered
into in contravention of this Division if --
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(a) the agreement is entered into subject to the approval of
the Commission being obtained; and
(b) an application for the approval of the Commission is
made within a period of 3 months after the date of the
5 agreement.
(2) Nothing in this Division renders the agreement illegal or void
by reason only that the agreement was entered into before the
approval of the Commission was obtained.
(3) Without prejudice to the operation of section 141, the agreement
10 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
agreement or within such further period as is stipulated
in that agreement; or
15 (b) within such further period as is stipulated in a
subsequent agreement in writing made --
(i) by all the parties to the first-mentioned
agreement; or
(ii) when the subsequent agreement is made after the
20 death of any of those parties, by the surviving
party or parties and the legal personal
representative of any deceased party.
141. Refund where transaction cannot be completed
Where, after payment of consideration for any transaction
25 relating to any land, it is found that the transaction cannot be
completed --
(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
30 (b) within such further period as is stipulated in a
subsequent agreement in writing made --
(i) by all the parties to the transaction; or
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(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,
5 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
10 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.
15 (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,
20 or recommendations in respect of, the whole or part of
that plan; and
(b) in the case of a local government receiving a plan or
copy relating to land within the area to which an
assessed scheme (as defined in the EP Act) applies,
25 advice of any relevant environmental condition 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
30 that it is to be taken to have no objections or recommendations
to make or advice to give.
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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
5 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
10 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
15 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.
20 144. 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
of being notified of the refusal request in writing the
25 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 --
(a) approve the plan of subdivision;
30 (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
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Commission thinks fit before the diagram or plan of
survey will be endorsed with the approval of the
Commission.
145. Endorsement of approval upon diagram or plan of survey of
5 subdivision
(1) A person to whom approval of a plan of subdivision has been
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,
10 accompanied by the prescribed fee; and
(b) request the Commission to approve the diagram or plan
of survey of the subdivision.
(2) In subsection (1) --
"prescribed period" means --
15 (a) in relation to a plan of subdivision creating more than
5 lots, the period of 4 years after the Commission
approved the plan of subdivision; and
(b) in any other case, the period of 3 years after the
Commission approved the plan of subdivision.
20 (3) If a subdivision is being carried out in stages, a diagram or plan
of survey of the subdivision may be submitted to the
Commission under subsection (1) in relation to a stage of
subdivision.
(4) Subject to subsection (6), if the Commission is satisfied that --
25 (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 --
(i) the conditions have been complied with or will
be complied with at the time a certificate of title
30 is created or registered;
or
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(ii) in the case of a diagram or plan of survey
submitted in relation to a stage of subdivision,
the conditions imposed in relation to that stage of
subdivision, or that in the opinion of the
5 Commission are relevant to that stage of
subdivision or the subdivision as a whole, have
been complied with or will be complied with at
the time a certificate of title is created or
registered;
10 the Commission is to endorse its approval on the diagram or
plan of survey.
(5) 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
15 longer period after that day as may be agreed in writing between
the Commission and the person making the request.
(6) If, in the case of a diagram or plan of survey submitted in
relation to a stage of subdivision, the Commission is of the
opinion that, because of planning considerations, it is not
20 appropriate to approve the diagram or plan of survey, the
Commission may refuse to endorse its approval on the diagram
or plan of survey.
(7) If, at the expiration of the period referred to in subsection (1), a
diagram or plan of survey of the subdivision has not been
25 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
section.
146. No certificate of title for subdivided land without
30 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
a plan of subdivision unless a diagram or plan of survey of the
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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
5 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;
(b) in the case of a diagram or plan of survey endorsed with
10 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
Commission within the 24 months preceding the lodging
of a title application with the Registrar of Titles; and
15 (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
registration of a certificate of title that are noted on the
diagram or plan of survey have been complied with, or
20 will be complied with at the time the certificate of title is
created or registered.
(2) In subsection (1)(a) and (b) --
"title application", in relation to a diagram or plan of survey,
means an application for new titles to be created and
25 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
survey of a subdivision provided that it is a portion of land
comprised in --
30 (a) a certificate of title;
(b) a registered conveyance;
(c) a Crown grant; or
(d) a lot on a plan deposited with the TLA Department.
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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;
5 (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
(c) in the case of a lease, the lease does not contain or
10 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
option to extend or renew the term;
(ii) section 136(1) does not apply to the lease by
15 virtue of the definition of "land" in section 136;
or
(iii) the lease is a lease which may be entered into
without the approval of the Commission by
virtue of section 139(1).
20 (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
application from the registered proprietor for the certificate of
title has been endorsed with the approval of the Commission.
25 Division 3 -- Conditions of subdivision
148. Conditions as to development
Without limiting section 143, the Commission may impose a
condition under that section that requires --
(a) development to be integrated with the subdivision of the
30 lot as specified by the Commission where, in the opinion
of the Commission, such integration is necessary
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because of the size of the lots and potential impact on
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
5 subdivision will be endorsed with the approval of the
Commission.
149. Conditions on rural land (tied lots)
(1) In this section --
"rural land" means land zoned for agricultural or rural use
10 under a local planning scheme.
(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
15 under section 129BA of the Transfer of Land Act 1893
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 --
20 (i) owned by a person who is the owner of another
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
25 a subdivision referred to in subsection (2) includes a notation
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
30 form, if any, specified in the request.
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(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
5 to that land notice that it is a tied lot; and
(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.
(6) The Registrar of Titles is not to register a transfer, conveyance,
10 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
(b) the principal lot is transferred, conveyed, leased or
mortgaged together with the tied lot in one and the same
15 transaction.
(7) A person who --
(a) contravenes; or
(b) directly or indirectly, enters into a transaction relating to
land for the purpose of avoiding,
20 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
transaction in question is to avoid a condition referred to in
subsection (2) and set out in that certificate is prima facie
25 evidence of that purpose.
(9) Subsection (7) does not apply to a transaction approved by the
Commission.
(10) Regulations made for the purposes of this section may provide
for --
30 (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;
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(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
5 approve the substitution of a principal lot or a transfer,
conveyance, lease or mortgage of a tied lot or a principal
lot;
(d) the procedure for the approval;
(e) the certification of relevant facts in relation to the
10 approval; and
(f) any other matter necessary or convenient to be
prescribed for giving effect to the purposes of this
section.
150. Conditions on road access
15 (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
subdivision to a road abutting the portion of land is to be
restricted or prohibited as set out in the condition and in
20 accordance with the regulations.
(2) A condition referred to in subsection (1) is to specify a
covenantee.
(3) Where --
(a) a diagram or plan of survey of a subdivision or a plan
25 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
from any portion of land shown on the plan or diagram
to and from a road abutting the portion of land is subject
30 to or intended to be subject to a restriction or prohibition
as set out in a condition imposed by the Commission,
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the land becomes subject to a covenant so restricting or
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
5 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.
10 (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
(1) If the Commission under section 143 imposes conditions and
15 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.
(2) On receiving a request under subsection (1), the Commission
20 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
(b) confirm the condition.
25 152. 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
under the Strata Titles Act 1985 are to vest in the Crown for any
30 one or more of the following purposes --
(a) conservation or protection of the environment;
(b) an artificial waterway;
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(c) a pedestrian accessway;
(d) a right-of-way;
(e) a reserve for water supply, sewerage, drainage,
foreshore management, waterway management or
5 recreation;
(f) a public purpose specified in the condition and related to
the subdivision,
then, subject to the encumbrances referred to in subsection (5),
the land subject to the condition vests in the Crown by force of
10 this section without any conveyance, transfer or assignment or
the payment of any fee.
(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
15 registers the plan under that Act; and
(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 of survey, has or have
been registered under the Transfer of Land Act 1893.
20 (3) Land vested under subsection (1) --
(a) is Crown land;
(b) does not form part of a parcel comprised in a plan that is
registered under the Strata Titles Act 1985;
(c) is to be taken to be reserved under section 41 of the
25 Land Administration Act 1997 for the purpose set out in
the condition; and
(d) may be dealt with in accordance with the Land
Administrtion Act 1997.
(4) The Registrar of Titles is to do all things necessary to give
30 effect to this section.
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(5) Land vested under this section is to be vested subject to --
(a) any easement on that land created for the purposes of the
subdivision, shown on the diagram or plan of survey and
referred to in section 167;
5 (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;
(c) any existing encumbrance specified in a direction of the
Minister responsible for the administration of the Land
10 Administration Act 1997, or a person authorised in
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
15 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
20 the Crown for parks, recreation grounds or open spaces
generally and --
(a) the Commission, after consultation with the local
government in whose district the portion is situated, so
requires; or
25 (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
30 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.
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154. How money received in lieu of open space is to be dealt with
(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
5 Government Act 1995.
(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
10 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
15 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
20 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");
25 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
30 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.
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(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
in subsection (2).
155. How value of portion is determined
5 (1) In this section --
"licensed valuer" means --
(a) a licensed valuer as defined in the Land Valuers
Licensing Act 1978; or
(b) the Valuer-General,
10 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;
"market value of land" means the capital sum which an
unencumbered estate in fee simple in the land might
15 reasonably be expected to realise if offered for sale on such
reasonable terms and conditions as a bona fide seller would
require.
(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
20 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 --
(a) is to be determined, at the cost of the owner of the land,
by a licensed valuer agreed upon by the parties or,
25 failing agreement, appointed by the local government;
and
(b) is to be so determined --
(i) as at the date on which the valuation is made;
(ii) on the basis that there are no buildings, fences or
30 other improvements of a like nature on the land;
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(iii) on the assumption that any rezoning necessary
for the purpose of the subdivision has come into
force; and
(iv) taking into account the added value of all other
5 improvements on or appurtenant to the land.
(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
10 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
15 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
20 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
25 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
30 plan of subdivision of any land to which a planning scheme
relates, that approval is to be taken to be approval by the
responsible authority under the planning scheme of the carrying
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Subdivision costs Division 4
s. 158
out of works necessary to enable the subdivision of the land that
are --
(a) shown on the plan of subdivision; or
(b) required by the Commission to be carried out as a
5 condition of approval of the plan of subdivision.
(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
10 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
15 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
20 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
25 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
30 construction and drainage, the amount is to be 3% of the
cost of the construction and drainage as estimated by the
local government;
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(b) where the person has engaged a consulting engineer and
clerk of works to design and supervise the construction
and drainage, the amount is to be 1½% of the cost of the
construction and drainage as estimated by the local
5 government.
(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.
10 159. 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 --
15 (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;
20 (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
25 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
30 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).
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(2) In this section --
"CPI" means the Table described as the Consumer Price Index
(All Groups Index) for Perth published by the
Commonwealth Statistician under the Census and Statistics
5 Act 1905 of the Commonwealth, or if the same is not
published, such other similar index as the Minister may
reasonably determine;
"market value of land" means the capital sum, determined in
accordance with section 155(3)(b)(ii), (iii) and (iv), which
10 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;
"road" has the meaning given by section 4(1) and includes a
15 private road created under Part IVA of the Transfer of Land
Act 1893 or as defined in the Land Administration 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 --
20 (a) the value, as at the date of the subdivision referred to in
subsection (1)(b), of the portion of the land provided as
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
25 that subdivision; and
(b) the reasonable cost of designing and carrying out the
following works --
(i) the survey of the land provided as a road;
(ii) the formation, preparation, priming and sealing
30 of the road; and
(iii) the provision of kerbing, drainage and service
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
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s. 160
over the CPI last published prior to the original subdivider
subdividing the land referred to in subsection (1)(b).
160. How subdivision costs recovered
An amount payable under section 159 may be recovered by the
5 original subdivider in a court of competent jurisdiction as a debt
due to the original subdivider by the later subdivider; but no
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
10 For the purposes of this Division land is subdivided on the date
on which the approval of the Commission is endorsed on the
diagram or plan of survey relating to the subdivision of the land.
Division 5 -- Development controls
162. Development requires approval
15 (1) Subject to this Act, where a planning scheme or interim
development order provides that development referred to in the
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
20 not commence or carry out that development on land to which
the planning scheme or interim development order applies
unless --
(a) the approval has been obtained and is in force under the
planning scheme or interim development order; and
25 (b) the development is carried out in accordance with the
conditions subject to which the approval was granted.
(2) Nothing in this section limits or otherwise affects a right or
entitlement under any other written law.
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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 to
be taken to be lawful upon the grant of approval for the
development.
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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;
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(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 as defined in the Water Services
Licensing Act 1995, for the purpose of water
supply, sewerage, irrigation or drainage works or
access to water supply, sewerage, irrigation or
25 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
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(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,
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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
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(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 to be 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.
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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.
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(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 apply to the State
Administrative Tribunal for a review, in accordance with
Part 14, of 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.
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General matters in relation to compensation Division 1
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.
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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
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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 to be 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;
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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 State
Administrative 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 State
Administrative Tribunal for determination of any question as to
20 whether land is 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.
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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.
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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 (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
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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.
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Planning and Development Bill 2005
Part 11 Compensation and acquisition
Division 2 Compensation where land injuriously affected by planning
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).
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Compensation where land injuriously affected by planning Division 2
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%
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Planning and Development Bill 2005
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Division 2 Compensation where land injuriously affected by planning
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
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Compensation where land injuriously affected by planning Division 2
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
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Planning and Development Bill 2005
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Division 2 Compensation where land injuriously affected by planning
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.
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Compensation where land injuriously affected by planning Division 2
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 135
Planning and Development Bill 2005
Part 11 Compensation and acquisition
Division 3 Other compensation
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.
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Other compensation Division 3
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 decision for the review of which the claimant has
made an application under section 249 has been
affirmed in whole or in part by the State Administrative
20 Tribunal.
(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 --
25 (a) the refusal of approval; or
(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
30 in which the land is situated.
(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
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Planning and Development Bill 2005
Part 11 Compensation and acquisition
Division 4 Purchase or compulsory acquisition
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 (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
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Purchase or compulsory acquisition Division 4
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) by the State Administrative Tribunal on the owner of the
land applying to it for a determination of that value;
or
(c) by some other method agreed upon by the responsible
authority and the owner of the land.
30 (3) If arbitration has not commenced under subsection (2)(a), an
application has not been made under subsection (2)(b), and no
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Planning and Development Bill 2005
Part 11 Compensation and acquisition
Division 4 Purchase or compulsory acquisition
s. 189
method has been agreed under subsection (2)(c), within
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
5 accordance with the Commercial Arbitration Act 1985;
or
(b) apply to the State Administrative Tribunal for a
determination of that value,
and the value determined under this subsection is to be the value
10 of the land for the purposes of section 187.
(4) Where a dispute is referred for determination under
subsection (3)(a) there is to be taken to be, for the purposes of
the Commercial Arbitration Act 1985, an arbitration agreement
to refer the dispute, and the parties to the agreement are to be
15 taken to be the owner of the land and the responsible authority.
189. Commission may purchase land before scheme has force
of law
The Commission may, if it considers that any land to which a
proposed region planning scheme or a proposed amendment to a
20 region planning scheme is to apply is likely to be comprised in
the scheme, purchase the land.
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
25 authority, purchase any land comprised in the planning scheme
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
30 under and subject to Part 9 of the Land Administration Act 1997
(but subject to subsection (3)), any land comprised in the
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Purchase or compulsory acquisition Division 4
s. 192
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.
5 (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
10 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
15 (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 --
20 (a) without regard to any increase or decrease in value
attributed wholly or in part to any of the provisions
contained in, or to the operation or effect of, the relevant
planning scheme; and
(b) having regard to values current at the time of
25 acquisition,
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
30 land under Division 2, then, subject to subsection (3), there is to
be deducted from the compensation assessed under
subsection (1) an amount that bears the same ratio to the
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Planning and Development Bill 2005
Part 11 Compensation and acquisition
Division 4 Purchase or compulsory acquisition
s. 193
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.
(3) In assessing the amount to be deducted from compensation
5 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
unaffected value of the land; and
10 (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
authorised to give, that the tenure was to be of a greater
15 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
of an owner in respect of the land, and may erect buildings on
20 the land or otherwise improve and make use of the land in such
manner as the responsible authority thinks fit.
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
25 planning purposes, subject to such conditions and payments of
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
30 under which an easement may have been granted.
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Purchase or compulsory acquisition Division 4
s. 195
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
5 land included in an improvement plan in force under
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
10 section.
(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
15 reference to the Minister administering that Act is to be read as
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
20 other authority, body or person.
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
25 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
30 Governor, the Commission is not to dispose of or alienate any
land compulsorily acquired by it other than for or in furtherance
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Planning and Development Bill 2005
Part 11 Compensation and acquisition
Division 4 Purchase or compulsory acquisition
s. 197
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
this section, the Commission is to have regard to the general
5 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
land was so acquired.
10 197. 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
Governor not required for that work and is required for the
15 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
region planning scheme.
20 (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.
(3) The Commission is to ensure that a memorial is lodged with the
Registrar in respect of land vested in the Commission under this
25 section as soon as is practicable after the land is so vested.
(4) The memorial is to be --
(a) accompanied by the notice published under
subsection (1) in respect of the relevant land; and
(b) in a form approved by the Registrar.
30 (5) The Registrar is to register the memorial against the relevant
land and take such steps as are necessary to record the vesting.
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Planning and Development Bill 2005
Compensation and acquisition Part 11
Purchase or compulsory acquisition Division 4
s. 197
(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;
5 "Registrar" means the Registrar of Titles or the Registrar of
Deeds and Transfers, as the case requires.
page 145
Planning and Development Bill 2005
Part 12 Financial provisions
Division 1 Metropolitan Region Improvement Fund
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,
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Planning and Development Bill 2005
Financial provisions Part 12
Metropolitan Region Improvement Tax Division 2
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.
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Planning and Development Bill 2005
Part 12 Financial provisions
Division 2 Metropolitan Region Improvement Tax
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.
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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.
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(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.
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(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 to be taken to be a
debt due to the local government that incurred the expenses by
30 the other local government.
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(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 apply to the State Administrative
Tribunal for a review, in accordance with Part 14, of any order
10 of the Minister under this section.
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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 State
15 Administrative 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
application for review.
20 (4) On holding an inquiry or receiving a report and
recommendations from the State Administrative 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
25 (b) to do all things necessary for executing any works
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
30 of the State Administrative Tribunal.
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(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 258,
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;
30 (b) specify a period (which is not to be less than 60 days
after the notice is served) before which the local
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government is required to comply with the relevant
order or provision; and
(c) advise the local government that the Minister intends to
exercise the powers conferred by subsection (3) if the
5 local government does not comply with the requirement
made under paragraph (b).
(3) If the local government does not comply with the requirement
made under subsection (2)(b), the Minister may take all such
steps and prepare or cause to be prepared all such documents as
10 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
direct the local government to provide the Minister with such
reports or other information specified in the order as are
15 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
government under subsection (4) to be served on the local
government, and the local government is to comply with the
20 order.
(6) For the purposes of subsection (3), the provisions of the
regulations that would have applied to the local government
apply to the Minister with such modifications as are necessary
or are prescribed.
25 (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
or may be deducted from any moneys payable by the Crown to
the local government.
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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
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(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
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(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), (3)
or (5) and that person fails to --
30 (i) carry out the directions within the time specified
in the notice; or
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(ii) apply under section 255 for a review of any
direction contained in the notice;
or
(b) on an application by that person for a review of any
5 direction 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 State Administrative Tribunal in the
notice given under section 255(2),
10 the responsible authority may itself remove, pull down, take up
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
15 subsection (1) may be recovered from the person to whom the
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
20 Act, if --
(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
25 development is commenced, continued or completed
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
30 authority, grant an injunction --
(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
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conduct or doing any act, that constitutes or is likely to
constitute a contravention of this Act, the interim
development order or the planning scheme;
(d) if the application is with respect to the commencement,
5 continuation or completion of a development contrary to
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
10 but not carried out, restraining the continuation
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,
15 until the condition is complied with.
(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.
20 217. Powers of Minister to ensure that environmental conditions
are met
(1) In this section --
"assessed scheme" means a planning scheme, or an amendment
to a planning scheme, that is an assessed scheme as defined
25 in the EP Act;
"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 meaning given to that term in
30 the EP Act;
"pollution" has the meaning given to that term in the EP Act.
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(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).
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Division 2 Offences
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.
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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
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(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.
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(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
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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
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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.
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(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).
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(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.
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Part 14 -- Applications for review
Division 1 -- Making and determination of applications for
review
236. When this Part applies
5 (1) In this section --
"planning scheme" includes any other instrument that
regulations made under the State Administrative Tribunal
Act 2004 specify to be a planning scheme for the purposes
of subsection (3).
10 (2) This Part applies if a written law or a planning scheme or any
other written law gives the State Administrative Tribunal
jurisdiction to carry out a review in accordance with this Part.
(3) Even if a planning scheme does not expressly give a person a
right to apply to the State Administrative Tribunal for a review,
15 in accordance with this Part, of a decision or matter, the
planning scheme is to be taken to give that right if --
(a) the planning scheme is expressed as conferring on the
person a right to appeal against the decision, or to refer
the matter, under this Act; or
20 (b) the planning scheme is expressed as conferring on the
person a right to appeal or apply for review in respect of
the matter and the matter involves the exercise by the
responsible authority of a discretionary power.
(4) Subsection (3) applies even if the planning scheme provides for
25 the appeal, referral or application to be made otherwise than to
the State Administrative Tribunal or, in the circumstances
described in paragraph (b) of that subsection, otherwise than in
accordance with this Part.
(5) A provision in a planning scheme of the kind described in
30 subsection (3)(a) or (b) has no effect other than the effect given
to that provision by subsection (3).
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237. Terms used in this Part
In this Part, unless the contrary intention appears --
"ordinary member" has the meaning given to that term in
section 3(1) of the State Administrative Tribunal Act 2004;
5 "party" has the meaning given to that term in section 36 of the
State Administrative Tribunal Act 2004;
"President" means the President of the State Administrative
Tribunal.
238. Qualifications of members
10 (1) The member constituting the State Administrative Tribunal, or
each of them if there is more than one, is to be a person who 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,
15 heritage matters, public administration, commerce and industry.
(2) If the application is for a review of a decision referred to in
section 254 or a decision relating to an environmental condition,
the member constituting the State Administrative Tribunal, or at
least one of them if there is more than one, is to be a person who
20 has knowledge of and experience in the field of environmental
science.
(3) Unless this subsection does not apply because of subsection (4),
the State Administrative Tribunal is to be constituted by an
ordinary member sitting alone when dealing with --
25 (a) an application for a review of --
(i) the determination of, or conditions imposed in
respect of, a development application to
commence a development of a value of less than
$250 000 or such other amount as is prescribed
30 by regulations made under the State
Administrative Tribunal Act 2004;
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(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 regulations made under the State
Administrative Tribunal Act 2004, or any
development ancillary to that development; or
(iii) the determination of, or conditions imposed in
10 respect of, an application for approval to
subdivide a lot into not more than 3 lots;
or
(b) an application that the applicant, with the agreement of
each other party, has elected at the time of making the
15 application to have determined by an ordinary member
sitting alone.
(4) Subsection (3) does not apply if the President is of the opinion
that the application is likely to raise complex or significant
planning issues.
20 239. Representation
(1) In the case of an application described in section 238(3)(a) the
applicant may, at the time the application is made, elect that no
party to the application is to be represented by a legal
practitioner.
25 (2) If an applicant makes an election under subsection (1), no party
to the application is entitled to be represented by a legal
practitioner unless --
(a) the President, being of the opinion that the application is
likely to raise complex or significant planning issues,
30 directs that the parties may be so represented;
(b) the President, having regard to whether the application
involves a question of law, directs in any other case that
the parties may be so represented;
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(c) the applicant is a legal practitioner; or
(d) the applicant withdraws the election.
240. Tribunal to invite submissions from Minister for the
Environment before determining certain applications
5 Before determining an application for the review of a decision
referred to in section 254 or a decision relating to an
environmental condition, the State Administrative Tribunal is to
invite the Minister for the Environment to make a submission in
respect of that application.
10 241. Tribunal to have regard to certain matters
(1) In determining an application in accordance with this Part the
State Administrative Tribunal is to have due regard to relevant
planning considerations including --
(a) any State planning policy which may affect the subject
15 matter of the application; and
(b) any management programme in force under Part 3 of the
Swan River Trust Act 1988 which may affect the subject
matter of the application.
(2) In the case of an application that relates to land to which the
20 Heritage of Western Australia Act 1990 applies, and whether or
not a State planning policy provides for the conservation of that
land, the State Administrative Tribunal --
(a) is to refer the matter to the Heritage Council for advice;
(b) may receive and hear submissions made on behalf of the
25 Heritage Council;
(c) may join the Heritage Council as a party to the
application; and
(d) is to have due regard to the objects of the Heritage of
Western Australia Act 1990.
30 (3) In determining an application for the review of the
determination of, or conditions imposed in respect of, an
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application for approval to subdivide a lot into not more than 3
lots, the State Administrative Tribunal may have regard to
claims of hardship raised by the applicant and proved to the
satisfaction of the State Administrative Tribunal, if the State
5 Administrative Tribunal is of the opinion that such regard will
not affect the application of sound planning principles.
242. Submissions from persons who are not parties
The State Administrative Tribunal may receive or hear
submissions in respect of an application from a person who is
10 not a party to the application if the Tribunal is of the opinion
that the person has a sufficient interest in the matter.
243. Exclusion of powers to join parties
Section 38 of the State Administrative Tribunal Act 2004 does
not apply to a proceeding for a review in accordance with this
15 Part.
244. Review by President
(1) The State Administrative 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
20 matter involving a question of law that was made by the State
Administrative Tribunal when constituted without a legally
qualified member as defined in section 3(1) of the State
Administrative Tribunal Act 2004.
(2) The State Administrative Tribunal constituted by the President
25 may --
(a) affirm the direction, determination or order; or
(b) revoke the direction, determination or order and
substitute another direction, determination or order that
the State Administrative Tribunal could have made in
30 relation to that matter.
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(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 made under the
State Administrative Tribunal Act 2004, by a party within one
5 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.
10 (5) A review by the State Administrative 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
15 one month after the application is made.
245. Minister may make submissions
(1) If it appears to the State Administrative Tribunal that an
application may be determined in a way which will have a
substantial effect on the future planning of the area in which the
20 land the subject of the application is situated, the State
Administrative Tribunal may invite the Minister to make a
submission as to the matters the Minister considers to be
relevant to the issues before the State Administrative Tribunal.
(2) Irrespective of whether or not there has been an invitation under
25 subsection (1), if it appears to the Minister that an application
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 application is situated, the Minister may make a
submission as to the matters which the Minister considers to be
30 relevant to the issues before the State Administrative 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
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hearing of the application, and may be made at any time before
the determination of the application.
(4) When a written submission has been made by the Minister, a
copy is to be given by the State Administrative Tribunal to the
5 parties who are in any case to be given an opportunity of
making further submissions to the State Administrative
Tribunal.
(5) In this section --
(a) where the area in which the land the subject of the
10 application is situated includes or comprises land or
waters that are within or abut the management area as
defined in the Swan River Trust Act 1988, "Minister"
includes the Minister to whom the administration of that
Act is committed; and
15 (b) where the area in which the land the subject of the
application is situated includes, or is included in, or
abuts any land or water to which an entry in the Register
maintained under section 46 of the Heritage of Western
Australia Act 1990 relates, "Minister" includes the
20 Minister to whom the administration of that Act is
committed.
246. Minister may call in application
(1) This section applies to an application made to the State
Administrative Tribunal if the Minister considers that the
25 application raises issues of such State or regional importance
that it would be appropriate for the application to be determined
by the Minister.
(2) The Minister may direct --
(a) the President to refer an application to which this section
30 applies to the Minister for determination; or
(b) the State Administrative Tribunal to hear the application
but, without determining it, to refer it with
recommendations to the Minister for determination.
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(3) The Minister cannot give a direction under subsection (2) --
(a) in respect of an application made to the State
Administrative Tribunal under the Heritage of Western
Australia Act 1990;
5 (b) more than 14 days after the application was made to the
State Administrative Tribunal; or
(c) after a final determination has been made in relation to
the application.
(4) The Minister, within 14 days after a direction is given, is to
10 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 248(1) to the Clerk of,
each House of Parliament.
(5) If the Minister gives a direction under subsection (2)(a), each
15 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
Minister.
20 (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.
247. Determination of application by Minister
25 (1) In determining an application 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 application that determination
has effect according to its tenor.
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(3) When an application is referred to the Minister under
section 246(2)(b) the executive officer of the State
Administrative Tribunal is to --
(a) give a copy of the recommendations that accompanied
5 the referral to each party within a reasonable time after
the referral; and
(b) make a copy of the recommendations available during
office hours for inspection by any person without
charge.
10 (4) The Minister is to --
(a) give to each party written reasons for the determination
of the Minister on the application;
(b) as soon as is practicable, cause a copy of those reasons
to be laid before each House of Parliament; and
15 (c) upon payment of a fee determined in the manner
prescribed by the regulations, supply a copy of those
reasons to any other person.
(5) The decision of the Minister is final.
248. Laying before House of Parliament that is not sitting
20 (1) If section 246(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
25 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
30 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.
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(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
Minutes, or Votes and Proceedings, of the House on the first
sitting day of the House after the Clerk received the copy.
5 Division 2 -- Decisions which may be reviewed
249. Application for review of decision under interim
development order
(1) Subject to subsection (2), if an applicant for approval to carry
out development under an interim development order is
10 aggrieved by the refusal to grant the approval or by the
conditions subject to which the approval is granted, the
applicant may apply to the State Administrative Tribunal for a
review, in accordance with this Part, of the decision to refuse or
to impose the conditions..
15 (2) No application for a review is to be made or heard in respect of
a development 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
20 (c) an Order made under Part 6, or Order in Council made
under section 80, of the Heritage of Western Australia
Act 1990.
(3) The Commission is to be taken to have refused an application
for approval to carry out development under a regional interim
25 development order, and a local government is to be taken to
have refused an application for approval to carry out
development under a local interim development order, if the
Commission or the local government, as the case requires, has
not given its decision on that application to the applicant --
30 (a) within a period of 60 days after the receipt by the local
government or Commission of the application; or
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(b) in the case of land in relation to which the application
has been referred to the Heritage Council in accordance
with the interim development order, within a period of
60 days after referring the application.
5 250. Application for review of decision in respect of development
in planning control area
(1) An applicant whose application under section 115 has been --
(a) approved subject to conditions which are unacceptable
to the applicant; or
10 (b) refused,
may apply to the State Administrative Tribunal for a review, in
accordance with this Part, of that approval or refusal.
(2) An application under subsection (1) for a review in relation to
any condition which is imposed in consequence of advice given
15 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 (2) applies in relation
to the application referred.
(3) If the Commission has not within 60 days of receiving an
20 application forwarded to it under section 115(3) given its
decision on that application to the applicant, the application is to
be taken to have been refused.
251. Application for review of certain decisions under Part 10
(1) An applicant may apply to the State Administrative Tribunal for
25 a review, in accordance with this Part, of a decision of the
Commission to refuse to approve any plan, application for title,
transfer, conveyance, lease, license to use and occupy, or
mortgage, in respect of which an application for approval was
made to the Commission.
30 (2) An applicant may apply to the State Administrative Tribunal for
a review, in accordance with this Part, of conditions affixed to
the granting of an approval referred to in subsection (1).
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(3) An applicant who makes a request under section 144(1)
or 151(1) may apply to the State Administrative Tribunal for a
review, in accordance with this Part, of a decision of the
Commission made under section 144(2) or 151(2).
5 (4) An applicant given approval of a plan of subdivision who is
aggrieved by the Commission's decision to refuse to endorse its
approval on a diagram or plan of survey of the subdivision
submitted to the Commission under section 145 may apply to
the State Administrative Tribunal for a review, in accordance
10 with this Part, of 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
approval of the plan of subdivision has not been complied with,
an application under subsection (4) may include an application
15 for a review of that condition.
252. Application for review of exercise of discretionary power
under a planning scheme
(1) Subject to subsection (3), if --
(a) under a local planning scheme or a region planning
20 scheme, the grant of any consent, permission, approval
or other authorisation is in the discretion of a
responsible authority;
(b) a person has applied to the responsible authority for
such a grant; and
25 (c) the responsible authority has --
(i) refused the application; or
(ii) granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for
a review, in accordance with this Part, of the responsible
30 authority's decision.
(2) Subject to subsections (1) and (3), an applicant may apply to the
State Administrative Tribunal for a review, in accordance with
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this Part, of the responsible authority's decision under a local
planning scheme as to --
(a) the classification of a use under the local planning
scheme; or
5 (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
given or taken to be given by a planning scheme to apply for a
review of a decision, but where rights are given or taken to be
10 given by a planning scheme and under subsection (1) or (2), the
exercise of one of those rights extinguishes the other right to
apply for a review of the same decision.
253. Notice of default for purposes of this Division
(1) In this section --
15 "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
subdivision, the period of 90 days specified in
20 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
approval on a diagram or plan of survey, the period
25 of 30 days specified in section 145(5) or any longer
period after that day as may be agreed between the
Commission and the applicant under section 145(5);
and
(c) in the case of any other application, or a request,
30 referred to in subsection (2), the period of 60 days
from the day on which the application or request was
made, or any longer period after that day as may be
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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
authority has not --
5 (a) approved, or refused to approve, an application referred
to in section 251(1);
(b) given notice of a decision on the request made under
section 144(1) or 151(1); or
(c) endorsed, or refused to endorse, a diagram or plan of
10 survey under section 145(4),
the applicant may give written notice of default to the
responsible authority.
(3) Where a notice of default is given to a responsible authority
under subsection (2), the applicant may apply to the State
15 Administrative Tribunal for a review, in accordance with 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.
20 Division 3 -- Other applications for review
254. Application for review of 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
25 under an assessed scheme, the applicant promoting the proposal
may apply to the State Administrative Tribunal for a review, in
accordance with this Part, of the decision.
255. Application for review of section 214 direction
(1) A person to whom a direction is given under section 214 may
30 apply to the State Administrative Tribunal for a review, in
accordance with this Part, of the decision to give the direction.
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(2) If the State Administrative Tribunal confirms or varies the
direction, it may, by 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
5 less than 40 days after service of the notice, as is specified in the
notice.
(3) Nothing in subsection (2) limits the functions of the State
Administrative Tribunal under the State Administrative Tribunal
Act 2004.
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Part 15 -- Subsidiary legislation
Division 1 -- Subsidiary legislation made by Minister
256. 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.
15 257. 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 256 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.
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(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 256, 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 256 in relation to an offence is to be
admissible as evidence of the matters determined in
those criminal proceedings and relevant to the issues.
258. 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.
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(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.
259. 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.
260. Penalties
Regulations made under this Division may prescribe penalties
30 not exceeding $5 000 for offences against the regulations.
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Division 2 -- Subsidiary legislation made by Governor
261. 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.
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(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.
15 262. 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
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s. 263
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.
263. 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 covenantee or other person or
authority specified in the regulations where road access
is restricted or prohibited as set out in a condition
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Planning and Development Bill 2005
Subsidiary legislation Part 15
General Division 3
s. 264
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) impose a penalty not exceeding $50 000 for offences
against the regulations.
10 (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.
(4) To the extent that a regulation made under this section is
inconsistent with or contrary to a regulation made under
15 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.
Division 3 -- General
264. Regulations may adopt codes and other texts
20 (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
the regulation.
(2) A regulation prescribing fees payable on application to the
25 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
services rendered by licensed valuers and those maximum
amounts of remuneration, if so adopted, are to be taken to be
30 fees prescribed as fees payable on application to the Board of
Valuers.
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Planning and Development Bill 2005
Part 15 Subsidiary legislation
Division 3 General
s. 264
(3) The text may be adopted --
(a) wholly or in part;
(b) as modified by the regulations;
(c) as it exists at a particular date or as amended from time
5 to time.
(4) The adoption may be direct, by reference made in the
regulation, or indirect, by reference made in any text that is
itself directly or indirectly adopted.
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Planning and Development Bill 2005
Miscellaneous Part 16
s. 265
Part 16 -- Miscellaneous
265. 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.
266. 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.
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s. 266
(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.
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s. 267
(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.
267. 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.
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Planning and Development Bill 2005
Part 16 Miscellaneous
s. 268
268. 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 196
Planning and Development Bill 2005
Constitution and proceedings of the Board Schedule 1
cl. 1
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 as defined 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;
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Planning and Development Bill 2005
Schedule 1 Constitution and proceedings of the Board
cl. 5
(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.
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Planning and Development Bill 2005
Constitution and proceedings of the Board Schedule 1
cl. 7
(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 to be 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.
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Planning and Development Bill 2005
Schedule 1 Constitution and proceedings of the Board
cl. 9
(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.
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Planning and Development Bill 2005
Committees Schedule 2
cl. 1
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.
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Planning and Development Bill 2005
Schedule 2 Committees
cl. 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), (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 to be 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.
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Planning and Development Bill 2005
Committees Schedule 2
cl. 4
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.
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Planning and Development Bill 2005
Schedule 2 Committees
cl. 5
(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 as defined in 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
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Planning and Development Bill 2005
Committees Schedule 2
cl. 6
(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)
20 or (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;
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Planning and Development Bill 2005
Schedule 2 Committees
cl. 7
(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)(c)(iii);
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Planning and Development Bill 2005
Committees Schedule 2
cl. 7
(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.
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Schedule 2 Committees
cl. 8
(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 as defined in
the Regional Development Commissions Act 1993 within the
whole or part of the region for which the regional planning
30 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
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Planning and Development Bill 2005
Committees Schedule 2
cl. 9
(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 209
Planning and Development Bill 2005
Schedule 2 Committees
cl. 9
(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 210
Planning and Development Bill 2005
Metropolitan region Schedule 3
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 as defined in 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 boundaries of the
page 211
Planning and Development Bill 2005
Schedule 3 Metropolitan region
local government district of Rockingham to the south-western corner
of Lot 236 as shown on Department as defined in the Transfer of
Land Act 1893 Plan 7931(2), (South Latitude 32 degrees 27 minutes
24.586 seconds, East Longitude 115 degrees 44 minutes
5 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 212
Planning and Development Bill 2005
Other regions Schedule 4
cl. 1
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 213
Planning and Development Bill 2005
Schedule 4 Other regions
cl. 8
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 214
Planning and Development Bill 2005
Local governments -- metropolitan region Schedule 5
cl. 1
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 215
Planning and Development Bill 2005
Schedule 5 Local governments -- metropolitan region
cl. 4
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 216
Planning and Development Bill 2005
Planning control areas: purposes for which land may be Schedule 6
required
cl. 5
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 217
Planning and Development Bill 2005
Schedule 7 Matters which may be dealt with by planning scheme
cl. 1
Schedule 7 -- Matters which may be dealt with by
planning scheme
[s. 69, 256(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 218
Planning and Development Bill 2005
Matters which may be dealt with by planning scheme Schedule 7
cl. 5
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 219
Planning and Development Bill 2005
Schedule 7 Matters which may be dealt with by planning scheme
cl. 9
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 220
Planning and Development Bill 2005
Matters which may be dealt with by planning scheme Schedule 7
cl. 14
14. Application for review
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 to apply to the State Administrative
5 Tribunal for a review of the exercise of the power.
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 221
Planning and Development Bill 2005
Schedule 8 Matters for which local laws may be made by Governor
cl. 1
Schedule 8 -- Matters for which local laws may be made
by Governor
[s. 262(1)]
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 222
Planning and Development Bill 2005
Matters for which local laws may be made by Governor Schedule 8
cl. 5
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
as defined in the Land Administration Act 1997 section 3(1).
30 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
depths of the existing subdivisions of land, that the distance between
35 the buildings to be erected, or buildings likely to be reconstructed on
page 223
Planning and Development Bill 2005
Schedule 8 Matters for which local laws may be made by Governor
cl. 9
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
providing that buildings generally or a building of any specified class
5 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
or public reserve a building may not be erected;
10 "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
local government.
15 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.
11. Authority
20 Providing for the authority or authorities responsible for carrying the
local laws into effect and enforcing their observance.
page 224
Planning and Development Bill 2005
Board of Valuers Schedule 9
cl. 1
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 225
Planning and Development Bill 2005
Schedule 9 Board of Valuers
cl. 5
(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 areto be 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.
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