City of Brisbane Town Planning Act Amendment Act 1979 (Qld)

346 (. a itslanr ANNO VICESIMO OCTAVO ELIZABETHAE SECUNDAE REGINAE No. 37 of 1979 An Act to- amend - the City of-Brisbane Town Planning,Act 1964 -1977 in certain particulars [ASSENTED TO 20TH JUNE, 1979] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the City of Brisbane Town Planning Act Amendment Act 1979. (2) In this Act the City of Brisbane Town Planning Act 1964-1977 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the City of Brisbane Town Planning Act 1964-1979. 2. Commencement of provisions , etc. (1) The provisions inserted in the Principal Act by this Act shall be deemed to have commenced on 2 December 1978. (2) Words inserted in the Principal Act by this Act shall be deemed to have been inserted on 2 December 1978. 3. Amendment of s. 4 . (1) Section 4 of the Principal Act is amended by omitting subsection (23).

City of Brisbane Town Planning Act Amendment Act 1979, No. 37 347 (2) The amendment provided for by subsection (1) shall be deemed to have been made on 2 December 1978 but without prejudice to anything duly done under the section so amended. 4. Amendment of s. 6 . Section 6 of the Principal Act is amended by, in subsection (9) (i), inserting after subparagraph (b) the following subparagraph:- "• or (c) pursuant to section 22B (5) (a).". 5. Amendment of s. 20B . Section 20B of the Principal Act is amended by inserting at the end thereof the following paragraph:- " Except in the case of an appeal under section 22 or an order made under section 9 (2), a decision of the Court allowing an appeal shall be deemed to be a decision of the Council or its delegate in respect of the matter to which the appeal relates.". 6. Amendment of s. 22 . Section 22 of the Principal Act is amended by- (a) in subsection (5A), inserting after the word " Council " the words " or its delegate "; (b) in subsection (13), inserting after the word " Council " the words " or its delegate ". 7. Repeal of and new s. 22B. (1) (a) Section 22s of the Principal Act is repealed. (b) The repeal provided for by this subsection shall be deemed to have taken effect on 2 December 1978 but without prejudice to anything duly done under the section so repealed. (2) The Principal Act is amended by inserting after section 22A the following section:- " 22B. Applications and appeals concerning superseded town plans, etc. (1) In this section- (a) the expression " application to which this section applies " means an application that was duly made and lodged with the Council before the prescribed date for any purpose in connexion with a superseded town plan, which application had not been rejected or approved (either unconditionally or with conditions) by the Council or its delegate before the prescrib:d date; (b) the expression " superseded town plan " means- (i) the town plan that was in force at the time of the making of an application to which this section applies; (ii) any provision of such town plan affecting such an application that was in force at the time of the making of the application, but that ceases to have force and effect before the decision on such application by the Council or its delegate because of the coming into force of a new town plan or an amendment of the town plan, as the case may be;

348 City of Brisbane T own PlanningAct Amendment Act 1979, No. 37 (c) the expression " the prescribed date " means the date when- (i) a new town plan becomes the Plan in place of an existing town plan; or (ii) an amendment is made to the Plan as prescribed by this Act, whereby a provision of the Plan previously in force affecting an application to which this section applies ceases to have force and effect, as the case may be. (2) An application to which this section applies shall be dealt with and decided by the Council or its delegate as though the superseded town plan had not been superseded, but the Council or its delegate may give such weight as it thinks fit to the provisions of the Plan. (3) (a) Where an appeal is instituted under this Act in respect of a decision of the Council or its delegate on an application to which this section applies or an appeal is instituted pursuant to section 21 (3) in respect of such an application, such appeal shall be determined by the Court as though the superseded town plan had not been superseded, but the Court may give such weight as it thinks fit to the provisions of the Plan. (b) Where an application referred to in paragraph (a) was in relation to the exclusion of land from a zone and the inclusion of that land in another zone, the Court may, if allowing the appeal, direct the Council to make application to the Minister for amendment of the Plan in such a manner as to accord with the Plan. (4) (a) Where an application to which this section applies is granted under subsection (2) or an appeal is allowed under subsection (3), the rights conferred thereby may be exercised as if the application had been granted or the appeal allowed before the prescribed date. (b) Where any proposal to subdivide land or open a road has been approved by the Council, conditionally or unconditionally, under the superseded town plan and at the prescribed date any act, matter or thing remains to be done for the subdivision of that land or the opening of that road in accordance with such approval, then- (i) notwithstanding that it has been superseded, the superseded town plan shall continue and be in force for the purpose of continuing and completing thereunder such act, matter or thing, and such act, matter or thing may be continued and completed thereunder accordingly; and (ii) nothing in the Plan shall be taken to preclude the subdivision of that land or the opening of that road where any such act, matter or thing remaining to be done for subdivision of that land or the opening of that road is continued and completed under the superseded town plan.

City of Brisbane Town Planning Act Amendment Act 1979, No. 37 349 (c) The use of any land or the use or erection of any building or other structure lawfully commenced after the prescribed date in accordance with this subsection shall be deemed to be a use that was in existence or, as the case may be, an erection that was commenced immediately before the prescribed date and the provisions of the Plan shall apply to such use or erection accordingly. (5) (a) Where- (i) before the prescribed date the Council or its delegate has approved an application to exclude land from a zone and to include such land in another zone under a superseded town plan but that plan had not been amended to give effect to such approval before that date; or (ii) after the prescribed date the Council or its delegate approves, in accordance with the provisions of subsection (2), an application to exclude land from any zone and to include the land so excluded in another zone, the Council may make application to the Minister under section 6 for an amendment of the Plan to take account of the approval and, when making such application, the Council may recommend to the Governor in Council that he make such amendments of the application as the Council thinks fit so as to accord with the Plan. (b) The Governor in Council when dealing with an application by the Council for an amendment of the Plan pursuant to paragraph (a) may make such amendments of the application as he thinks fit so as to accord with the Plan. (c) Where pursuant to paragraph (b) the Governor in Council amends an application so as to accord with the Plan, such amendment shall not affect the validity of any agreement that may have been entered into between any person and the Council or its delegate which provided for the land the subject of the application to be included in a particular zone, and, for the purpose of enforcing the provisions of such agreement, it shall be taken that the Council or its delegate has complied with the provisions thereof that relate to the inclusion of the land in a particular zone. (6) (a) Where an application for any purpose in connexion with a superseded town plan has been decided by the Council or its delegate prior to the prescribed date and an appeal to the Court has not been determined at the prescribed date, the appeal shall be determined by the Court as though the superseded town plan had not been superseded, but the Court may give such weight as it thinks fit to the provisions of the Plan. (b) Where an application referred to in paragraph (a) was in relation to the exclusion of land from a zone and the inclusion of that land in another zone, the Court may, if allowing the appeal, direct the Council to make application to the Minister for amendment of the Plan in such a manner as to accord with the Plan. (7) Where- (a) prior to 21 December 1965 approval had been obtained from the Council or its delegate for the use of land or the use or erection of a building or other structure; or

350 City of Brisbane Town Planning Act Amendment Act 1979, No. 37 (b) a new town plan becomes the Plan in place of an existing town plan or a provision of an existing town plan ceases to have force and effect because of the coming into force of an amendment of that plan and- (i) approval has been obtained under the existing town plan or provision of the existing town plan for the use of land or the use or erection of a building or other structure; or (ii) approval has been obtained pursuant to the provisions of the Building Act1975-1978 or of an ordinance made under the City of Brisbane Act1924-1977 for the erection of a building or other structure; and (c) the rights conferred by an approval referred to in paragraph (a) or paragraph (b) had not been exercised at the prescribed date and the approval remained in force at that date, such rights may, subject to subsection (9), be exercised in accordance with that approval. (8) The use of any land or the use or erection of any building or other structure lawfully commenced after the prescribed date in accordance with subsection (7) shall be deemed to be a use that was in existence or, as the case may be, an erection that was commenced immediately before the prescribed date and the provisions of the Plan shall apply to such use or erection accordingly. (9) (a) The Council or its delegate may revoke an approval referred to in subsection (7) unless the rights conferred by such approval are exercised or substantially commenced to be exercised- (i) in the case of an approval obtained prior to 2 December 1978- (A) within 2 years from the date of the obtaining of approval or within 12 months from the day on which the Governor gives his assent to the City of Brisbane Town Planning Act Amendment Act 1979 for and on behalf of Her Majesty, whichever period last expires; or (B) within such extended period or periods as the Council may from time to time approve; (ii) in the case of any other approval- (A) within 2 years from the date of the obtaining of approval; or (B) within such extended period or periods as the Council may from time to time approve. (b) The Council or its delegate may, with a view to giving consideration to the revocation of an approval referred to in subsection (7), serve upon the person to whom such approval was granted and, if a different person, upon the owner of the land in question a notice (hereinafter referred to as a " notice of intention to revoke ").

City of Brisbane Town Planning Act Amendment Act 1979, No. 37 351 (c) A notice of intention to revoke shall be in writing, addressed to the address of the person on whom it is to be served last known to the Council or its delegate, and shall state- (i) that the person to whom the notice is directed, on or before the date specified therein (which date shall be not earlier than 30 days after the service of the notice), may serve upon the Council or its delegate at the address set out in the notice an objection in writing to the revocation of the approval; (ii) that such objection must specify the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds; (iii) that an objector who indicates in his objection in writing that he desires to be heard in support of the grounds of his objection may appear and be heard by the Council or its delegate at the time and place specified in the notice. (d) (i) If no objection in writing is served upon the Council or its delegate on or before the date specified in the notice of intention to revoke, the Council or its delegate may determine that the approval be revoked. (ii) The Town Clerk shall notify the person or persons referred to in paragraph (b) of the determination within 7 days thereof and the notification shall state the grounds of the determination. (e) (i) An objector who indicates in his objection in writing that he desires to be heard in support of the grounds of his objection may appear and be heard by the Council or its delegate at the time and place specified in the notice. (ii) If the Council or its delegate, after due consideration of any objections and hearing any objector who desires to be heard, proposes to revoke the approval, the Town Clerk shall give notice accordingly to each person who has duly served on the Council or its delegate an objection to the revocation of the approval. (iii) The notice shall contain or be accompanied by a copy of this subsection (9). (f) A person who has made an objection in accordance with this subsection may appeal to the Court against the proposal of the Council or its delegate to revoke the approval, but any such appeal shall be instituted within 30 days after the giving to him of the notice referred to in paragraph (e) (ii) and not later. (g) Where an objection has been made in accordance with this subsection, the Council or its delegate shall not determine to revoke the approval in question until the time for institution of an appeal has expired or, if an appeal is duly instituted, until the appeal is determined. (h) In making any determination with respect to revocation of an approval, the Council or its delegate is bound by the determination of the Court on appeal.

352 City of Brisbane Town Planning Act Amendment Act 1979, No. 37 (i) The Council or its delegate shall make its determination and the Town Clerk shall notify the person or persons referred to in paragraph (b) of such determination within 7 days after the time for institution of an appeal has expired or, if an appeal has been duly instituted, within 7 days after the determination thereof; and the notification shall state the grounds of the determination of the Council or its delegate. (j) For the purposes of this subsection, a delegate of the Council may be a board or officer of the Council appointed by it by resolution.