Local Government Act Amendment Act 1982 (Qld)

749 (1jueensittnl U E? ANNO TRICESIMO PRIMO ELIZABETHAE SECUNDAE REGINAE No. 47 of 1982 An Act to amend the Local Government Act 1936-1981 in certain particulars and for related purposes [ASSENTED TO 6TH OCTOBER, 1982]

750 Local Government Act Amendment Act 1982, No. 47 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 Local Government Act Amendment Act 1982. (2) In this Act the Local Government Act 1936-1981 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Local Government Act 1936-1982. 2. Commencement . The Governor, by Proclamation- (a) may appoint a date on which this Act shall commence; (b) may appoint dates on which the provisions of this Act specified in the Proclamation shall commence. Such dates may be appointed in one Proclamation or in different Proclamations. This Act or a provision thereof specified in the Proclamation shall commence on the date appointed by Proclamation made under this section for the commencement of this Act or, as the case may be, that provision. 3. Amendment of s. 33. Section 33 of the Principal Act is amended by- (a) in subsection (6A) omitting from paragraph (e) (v) (A) the words would be available " and substituting the words " should be made available "; (b) in subsection (18), after paragraph (s), adding the following paragraph:- " (t) (i) Subject to subparagraph (v), where, under a town planning scheme or by-law specified in subparagraph (iii) of paragraph (a), any building or other structure may be erected or used for any purpose only with the consent of the Local Authority or land may be used for any purpose only with such consent and an application is made for such consent, such application may be amended by the applicant prior to the application being decided by the Local Authority or, with the consent of the applicant, by the Local Authority when considering the application, provided the Local Authority is of the opinion that- (A) the amendment is of a minor nature; and (B) the amendment would not adversely affect any person: Provided that a Local Authority shall have no power under this paragraph to amend an application which has been the subject of an appeal to the Court and the Court has made a determination on the appeal. (ii) A person who seeks an amendment of an application referred to in subparagraph (i) shall make application to the Local Authority for such amendment and the application shall set forth full particulars of the proposed amendment.

Local Government Act Amendment Act 1982, No. 47 751 (iii) The Local Authority shall decide the application within 30 days from the date of receipt by it of the application. (iv) The clerk shall notify the applicant of such decision within 7 days from the date of the making of the decision. (v) For the purposes of this paragraph a proposed amendment shall be taken to be not of a minor nature if- (A) the proposed use to be made of the land the subject of the application is to be varied by the addition of other uses; (B) the gross floor area of buildings or proposed buildings on the site, is to be increased by more than five per centum; (C) the number of storeys to be contained in any building or proposed building or part thereof on the site is to be added to; (D) the location of the proposed ingress to or egress from the site is to be substantially altered; (E) the proposed ingress to or egress from the site is to be to or from roads other than roads specified in the original application; or (F) the amenity or the likely future amenity of the locality would, in the opinion of the Local Authority, be adversely affected by the proposed amendment: Provided that an alteration in a particular referred to in provision (D) or an amendment referred to in provision (E) shall be deemed to be an amendment of a minor nature if- (G) the location of the proposed ingress or egress as altered or the road from or to which ingress or egress is to be had if the proposed amendment is made is a road declared under the Main Roads Act 1920-1979 and the approval of the Commissioner of Main Roads has been obtained to the location of the points of ingress and egress; and (H) the Court, upon an application being made to it, determines the proposed amendment is of a minor nature and would not adversely affect any person."; (c) after subsection (18A) inserting the following subsections:- " (18AA) Modification of approvals granted . (a) Subject to paragraphs (e) and (f), where, under a town planning scheme or by-law specified in subsection (18) (a) or a superseded town planning scheme or superseded interim development by-law within the meaning of subsection (18D), an application made to a Local Authority for consent in respect of the erection or use of a building or other structure on land or the use of land has been approved by the Local Authority either with or without conditions, the Local Authority may, upon receipt of an application in that behalf from the person in whom the benefit of the approval for the time being vests, modify the approval granted or any condition applicable to such approval provided the Local Authority is of the opinion that- (i) the modification is of a minor nature; and

752 Local Government Act Amendment Act 1982, No. 47 (ii) the modification would not adversely affect any person. (b) A person who seeks a modification of an approval referred to in paragraph (a) shall make application to the Local Authority for such modification and the application shall set forth full particulars of the proposed modification. (c) The Local Authority shall decide the application within 30 days from the date of the receipt by it of the application. (d) The Clerk shall notify the applicant of such decision within 7 days from the date of the making of the decision. (e) For the purposes of this subsection a proposed modification shall be taken to be not of a minor nature if- (i) the proposed use to be made of the land the subject of the modification is to be varied by the addition of other uses; (ii) the gross floor area of buildings or proposed buildings on the site, is to be increased by more than five per centum; (iii) the number of storeys to be contained in any building or proposed building or part thereof on the site is to added to; (iv) the location of the proposed ingress to or egress from the site is to be substantially altered; (v) the proposed ingress to or egress from the site is to be to or from roads other than roads specified in the original application ; or (vi) the amenity or the likely future amenity of the locality would, in the opinion of the Local Authority, be adversely affected by the proposed modification : Provided that an alteration in a particular referred to in provision (iv) or an amendment referred to in provision (v) shall be deemed to be a modification of a minor nature if- (vii) the location of the proposed ingress and egress as altered or the road from or to which ingress or egress is to be had if the proposed modification is made is a road declared under the Main Roads Act 1920-1979 and the approval of the Commissioner of Main Roads has been obtained to the location of the points of ingress and egress; and (viii) the Court, upon an application being made to it, determines the proposed modification is of a minor nature and would not adversely affect any person. (f) A Local Authority shall have no power under this subsection to modify- (i) an approval of an application referred to in paragraph (a) where the approval- (A) relates to the erection of a building, after the erection is substantially commenced;

Local Government Act Amendment Act 1982, No. 47 753 (B) relates to the use of any land, building or other structure, after the use is commenced; or (C) was granted following the determination of an appeal by the Court; or (ii) a condition of approval of an application referred to in paragraph (a) (not being an approval referred to in subparagraph (i)) where that condition was imposed as the result of an objection lodged against the granting of the application when public notice of the application was given under subsection (18). ( 18AB) Application to Court in respect of amendment or modification. (a) An applicant who is dissatisfied with the decision of the Local Authority on an application made by him pursuant to paragraph (t) of subsection (18) or subsection (18AA) may apply to the Court for a review of the decision and the Court is hereby vested with jurisdiction to review a particular matter brought before it pursuant to this subsection and make a determination thereon. (b) An application for review pursuant to paragraph (a) shall be instituted within 30 days from the date when the decision of the Local Authority first comes to the notice of the applicant but not later. (c) Proceedings before the Court in respect of an application for review pursuant to this subsection shall be had in accordance with the Local Government Court Rules."; (d) in subsection (18D)- (i) after paragraph (g) inserting the following paragraph :- " (ga) Where the rights conferred by an approval referred to in provision (B) of subparagraph (ii) of paragraph (g) are exercised in accordance with that approval, the building or other structure the subject of the approval and the land on which the same is to be or was erected may and it is hereby declared always could be used for the purpose for which the building or other structure is to be or was erected, whether or not the erection thereof was commenced before or after the prescribed date and notwithstanding anything contained in the town planning scheme or by-law as the case may be."; (ii) in paragraph (h) inserting after the words " lawfully commenced " the words " before or "; (iii) inserting after paragraph (h) the following paragraph:- " (i) Where before or after the commencement of this provision- (A) a town planning scheme or interim development by-law for the time being in force in an Area or part of an Area or any provision thereof has ceased to have force and effect because of the coming into force of a new or amended town planning scheme or by-law or provision; and (B) before the event referred to in paragraph (A) an application has been made to the Local Authority of the Area for its approval, such as is required to be obtained pursuant to the provisions of the Building Act1975-1981, in respect of the

754 Local Government Act Amendment Act 1982, No. 47 erection of a building or other structure and was so made at a time when the use of the land on which the building or other structure was to be erected or the use of such building or other structure for the purpose for which it was to be erected was lawful without the consent of the Local Authority under the relevant town planning scheme or interim development by-law; (C) by reason of the coming into force of the new or amended town planning scheme or by-law or provision referred to in paragraph (A)- (a) the approval or consent of the Local Authority is required in respect of the erection or use of the building or other structure or the use of the land on which it is or is to be erected; or (b) the erection or use of the building or other structure or the use of such land for the purpose for which it is or is to be erected is prohibited; or (c) the erection or use of the building or other structure or the use of such land for the purpose for which it is or is to be erected does not conform to the provisions of the new or amended town planning scheme or by-law or provision ; and (D) after the event referred to in paragraph ( A) either the application referred to in paragraph (B) is persisted in, whether in respect of the proposal to which the application originally related or that proposal as varied , or a fresh application, is made to the Local Authority of the Area for its approval , such as is required to be obtained pursuant to the provisions of the Building Act1975-1981 , by the same applicant in respect of the erection of a building or other structure on the same land to be used for the same purpose as that to which the original application related; and (E) by reason of any indication in writing given by or on behalf of the Local Authority , either before or after the event referred to in paragraph (A), the applicant has been led to a belief, held in good faith , that an approval such as is required to be obtained pursuant to the provisions of the BuildingAct1975-1981 has been given by the Local Authority in respect of the erection of the building or other structure to which his application relates, the approval believed to have been given shall be deemed to be an approval duly given under the BuildingAct1975 -1981 and- the erection and use of the building or other structure and the use of the land on which it is or is to be erected for the purpose for which it is or is to be erected or used shall be deemed to be and to have always been in conformity with the new or amended town planning scheme or interim development by-law or provision referred to in paragraph (A); and such use of the land and such use or erection of the building or other structure shall be deemed to be a use that was in

Local Government Act Amendment Act 1982, No. 47 755 existence or, as the case may be, an erection that was commenced immediately before the coming into force of the new or amended town planning scheme or interim development by-law or provision referred to in paragraph (A) and the provisions of any town planning scheme or interim development by-law for the time being in force in the Area or part of the Area in which the land is or the building or other structure is or is to be situated shall apply to such use or erection accordingly. It is hereby declared- (a) that the term " approval ", in this provision, includes an approval that has been varied ; and (b) that in the application of this provision it is immaterial that a belief such as is referred to in paragraph (E) has been induced by an act that has not the force or effect that it is believed to have by reason that it is or was done contrary to the provisions of the Building Act1975-1981 or of this Act.". 4. Amendment of s. 34. Section 34 of the Principal Act is amended by inserting after subsection (10) the following subsections:- " ( 10A) Amendment of applications and modification of approvals. (a) Where an application has been submitted to a Local Authority pursuant to this section the application may be amended by the applicant after its submission and prior to the application being decided by the Local Authority or, with the consent of the applicant, by the Local Authority when considering the application, provided the Local Authority is of the opinion that- (i) the amendment is of a minor nature; and (ii) the amendment would not adversely affect any person: Provided that a Local Authority shall have no power under this subsection to amend an application which has been the subject of an appeal to the Court and the Court has made a determination on the appeal. (b) Where an application submitted to a Local Authority pursuant to this section has been approved by the Local Authority either with or without conditions the Local Authority may, upon receipt of an application in that behalf from the person in whom the benefit of the approval for the time being vests, modify the approval granted or any condition applicable to the approval where the Local Authority is of the opinion that- (i) the modification is of a minor nature; and (ii) the modification would not adversely affect any person: Provided that a Local Authority shall have no power under this subsection to modify the approval of an application which has been the subject of an appeal to the Court and the Court has made a determination on the appeal. (c) A person who seeks an amendment of an application or a modification of an approval pursuant to this subsection shall make application to the Local Authority for such amendment or modification and the application shall set forth full particulars of the proposed amendment or modification.

756 Local Government Act Amendment Act 1982, No. 47 (d) The Local Authority shall decide the application within 30 days from the date of receipt by it of the application. (e) The Clerk shall notify the applicant of such decision within 7 days from the date of the making of the decision. ( 10a) Application to Court in respect of amendment or modification. (a) An applicant for amendment of an application or modification of an approval pursuant to subsection (10A) who is dissatisfied with the decision of the Local Authority on application may apply to the Court for a review of the decision and the Court is hereby vested with jurisdiction to review a particular matter brought before it pursuant to this subsection and make a determination thereon. (b) An application for review pursuant to paragraph (a) shall be instituted within 30 days from the date when the decision of the Local Authority first comes to the notice of the applicant but not later. (c) Proceedings before the Court in respect of an application for review pursuant to this subsection shall be had in accordance with the Local Government Court Rules.". 5. Amendment of s. 49E . Section 49E of the Principal Act is amended by adding at the end thereof the following subsection:- " (9) For the purposes of this section, it shall be taken that the term " Local Authority " includes and has always included Brisbane City Council constituted pursuant to the provisions of the City of BrisbaneAct1924-1982 and a reference to the general fund includes and has always included a reference to the City Fund of that Council.". 6. Amendment of s. 49F. Section 49F of the Principal Act is amended by adding at the end thereof the following subsection:- " (6) For the purposes of this section, it shall be taken that the term " Local Authority " includes and has always included Brisbane City Council constituted pursuant to the provisions of the City of BrisbaneAct1924-1982 and a reference to the general fund includes and has always included a reference to the City Fund of that Council.".