Local Government Act and Another Act Amendment Act 1979 (Qld)

891 ®xtceltshtxt^ ANNO VICESIMO OCTAVO ELIZABETHAE SECUNDAE REGINAE No, 78 of 1979 An Act to amend the Local Government Act 1936-1979 and the City of Brisbane Town Planning Act 1964-1979 each in certain particulars and for related purposes [ASSENTED TO 21sT DECEMBER, 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:- PART I-PRELIMINARY 1. Short title and citation . (1) This Act may be cited as the Local Government Act and Another Act Amendment Act 1979. 2. Arrangement of Act. This Act is divided into Parts as follows:- PART I-PRELIMINARY (SS. 1-2); PART I1-AMENDMENT OF LOCAL GOVERNMENT ACT (ss. 3-8); PART Ill-AMENDMENT OF CITY OF BRISBANE TOWN PLANNING AcT (ss. 9-11).

892 Local Government Act and Another Act Amendment Act 1979, No. 78 PART II-AMENDMENT OF LOCAL GOVERNMENT ACT 3. Citation. (1) In this Part the Local Government Act 1936-1979 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Local Government Act 1936-1979. 4. New. s . 4E. The Principal Act is amended by inserting after section 4D the following section:- " 4E. Entitlement of applicant for Local Authority' s approval to undertake refuse removal . (1) Where an applicant applies for approval of a Local Authority in respect of undertaking or contracting to undertake the removal, collection, conveyance or disposal of commercial refuse or industrial refuse, as required by section 98A of the Health Act1937-1978 the Local Authority shall grant him its approval, if it is satisfied that the applicant is in a position to, and is likely to, comply with all the conditions to which the Local Authority proposes to subject any approval it might grant in respect of the matter of the application. (2) Subject to this section, an applicant for approval of a Local Authority in respect of undertaking or contracting to undertake the removal, collection, conveyance or disposal of commercial refuse or industrial refuse, as required by section 98A of the Health Act1937-1978, who is aggrieved by the Local Authority' s decision on his application may appeal against the decision to a Magistrates Court, within the meaning of the Justices Act1886-1979, in the Area of the Local Authority. In this subsection and in subsection (1) each of the expressions " commercial refuse " and " industrial refuse " has the meaning assigned to it by the Refuse Management Regulations 1977 made pursuant to the Health Act1937-1978. (3) An appeal under subsection (2) shall be instituted within 30 days after notification has been given to the applicant by the Local Authority informing him of the decision, and not later, by- (a) lodging a notice of appeal duly completed in the prescribed form with the clerk of the magistrates court where the appeal is to be determined; and (b) giving a copy of the notice of appeal so completed to the clerk of the Local Authority whose decision is in issue. (4) A notice of appeal shall specify the grounds on which the appellant is aggrieved by the decision to which the appeal relates and the facts and circumstances relied on in support of those grounds. (5) If at the time and place appointed for the determination of an appeal under subsection (2) or at any time and place to which the proceeding is adjourned there is no appearance by or on behalf of the appellant or the Local Authority it shall be taken that the party who does not so appear does not wish to make representations or further representations in the appeal and the magistrates court may proceed to determine the appeal on the information furnished to it in the notice of appeal and such other evidence as may have been led before it without further reference to that party.

Local Government Act and Another Act Amendment Act 1979, No. 78 893 (6) In relation to an appeal under subsection (2)- (a) the magistrates court shall make full inquiry into the matter of the appeal and for that purpose shall hear and consider such relevant evidence, information and argument submitted to it and shall not be bound by rules or practice as to evidence but may inform itself as it thinks fit; (b) the magistrates court may, by its order- (i) reverse the Local Authority's decision oe vary the same in such manner and to such extent as it thinks fit; or (ii) dismiss the appeal making no order as to costs; (c) the magistrates court's procedure shall, subject to this section, be as directed by the justices constituting the court; (d) the magistrates court's order shall be final and conclusive and no appeal shall lie therefrom. (7) In this section the expression " Local Authority " includes Brisbane City Council. 5. Amendment of s. 30 . (1) Section 30 of the Principal Act is amended by, in the paragraph commencing with the words "Advertising on roads " inserting after the words " public resort;" the words " swimming pools on private land;" (2) It shall be deemed that the functions of local government always included the item " swimming pools on private land ". 6. New s. 31B. The Principal Act is amended by inserting a ter section 31A the following section:- " 31B. By-laws respecting fencing swimming pools. (1) Notwithstanding any provision of any other Act a Local Authority has, and it is hereby declared always has had power to make by-laws that require erection of fencing or other obstruction- (a) around a swimming pool on private land; or (b) along the boundaries of private land on which a swimming pool is situated, or along any part of such boundaries; or (c) on or across private land on which a swimming pool is situated, with a view to impeding access by children generally or of any specified class to the swimming pool. (2) For the purposes of this section- (a) the expression " Local Authority " includes Brisbane City Council and, in relation to that council, the expression " by-law " includes an ordinance of that council; (b) the power conferred or declared thereby includes and shall be deemed to have always included power to adopt, wholly or in part, in relation to any matter provided for by it any of the standard rules, codes and specifications of the bodies known as the Standards Association of Australia, the British Standards Institution or a like body identified therein. (3) No provision of a by-law or ordinance made with respect to a matter referred to in this section shall be construed to prejudice the discretion of a magistrates court under the DividingFencesAct1953-1972.".

894 Local Government Act and Another Act Amendment Act 1979, No. 78 7. Amendment of s. 32. Section 32 of the Principal Act is amended by inserting after subsection (4A) the following subsection:- " (4B) Railway construction . The Council of the Shire of Redland may, with the approval of the Minister, contribute towards the capital cost of the construction of railways pursuant to the Railways Act 1914-1978 to serve its Area in accordance with an agreement entered into between the said Council and the Commissioner for Railways. The contribution of the said Council may be of the whole or part of the cost referred to herein.". 8. Amendment of s. 33. Section 33 of the Principal Act is amended by- (a) in subsection (6A), (i) omitting provision (iii) of paragraph (b) and substituting the following provision:- (iii) accompanied by the consent, in writing, of the prescribed person, where he is not the applicant;"; (ii) omitting provision (iv) (B) of paragraph (b) and substituting the following provision:- " (B) the name of the prescribed person;"; (iii) adding at the end of the subsection the following paragraphs:- (g) Where the applicant is the prescribed person referred to in provision (iii) of paragraph (h), save where that person otherwise agrees in writing with the Local Authority- (i) it shall be deemed that the application is made for and on behalf of the prospective purchaser or lessee from_the_Crown, or other prospective occupier, of the land; (ii) conditions imposed by the Local Authority in relation to the re-zoning of the land shall be taken to bind the purchaser or lessee from the Crown, or other occupier, of the land, except in the case of a condition or part thereof declared by the Governor in Council, by notification published in the Gazette, not to so bind (he being empowered so to do if he considers that the condition or part thereof is not reasonable or is not relevant). (h) In this subsection the expression " prescribed person " means- (i) in the case of an application to re-zone land held from the Crown in freehold, the registered proprietor of the land; (ii) in the case of an application to re-zone land held from the Crown upon a leasehold tenure, the registered lessee of that land; (iii) in the case of an application to re-zone Crown land proposed to bd sold, leased or otherwise let, the Minister of the Crown charged with responsibility for the land.";

Local Government Act and Another Act Amendment Act 1979, No. 78 895 (b) inserting after subsection (22) the following subsection:- (22A). Town planning scheme may include Crown land . (a) In this subsection- " Crown " means the Crown in right of Queensland; " Crown land " means- (a) land that is not alienated by the Crown as to any estate or interest therein; (b) land that is held by any person representing the Crown or by a trustee in trust for the Crown; (c) land that is reserved and set apart or held in trust under the Land Act 1962-1978 for a public purpose; (d) land (other than. land hereinbefore referred to), or any building or other structure or part thereof, that is occupied by the Crown or by any person representing the Crown, and that, in the case specified in provision (b), (c) or (d), is not the subject of any sale or letting by the Crown, by such person representing the Crown or, as the case may be, by such trustee. (b) The provisions of paragraphs (c) to (f), both inclusive, apply subject to the provisions of paragraphs (g) to (j), both inclusive. (c) The power of a Local Authority to prepare for its Area or a part of its Area a town planning scheme under subsection (2) includes, and it is declared always did include, power to prepare such a scheme that includes all land, buildings and other structures within the Area or, as the case may be, part thereof, whether the same be Crown land or otherwise. (d) The power of a Local Authority to make application under subsection (5) to the Minister for amendment of a town planning scheme and of the Minister to recommend under subsection (6) an amendment of a town planning scheme includes, and it is declared always did include, power to make such an application or recommendation in relation to any land, building or other structure or part thereof included in the scheme, whether the same be Crown land or otherwise, and whether or not the scheme is at the time of making the application or recommendation operative in relation to the land, building or other structure or part sought to be affected thereby. (e) The power of the Governor in Council to approve under subsection (3) of a town planning scheme or to approve under subsection (5) of an amendment of such a scheme or to amend under subsection (6) such a scheme includes, and it is declared always did include, power to so approve of a scheme or an amendment or, as the case may be, to so amend in relation to any land, building or other structure or part thereof included in the scheme whether the same be Crown land or otherwise and whether or not the scheme is at the time of the approval or amendment operative in relation to the land, building or other structure or part sought to be affected thereby. (f) The power of a Local Authority to make by-laws and of the' Governor in Council to approve by-laws of a description referred to in subsection (21) includes, and it is declared always did include, power to make or, as the case may be, approve such by-laws having application in relation to all land; buildings and other structures included or to be included in a town planning scheme, whether the same be Crown land or otherwise.

896 Local Government Act and Another Act Amendment Act 1979, No. 78 (g) A town planning scheme or a by-law of a description referred to in subsection (21) does not bind, and it is declared never has bound, the Crown. (h) Where land, or a building or other structure or part thereof included in a town planning scheme is or becomes Crown land, then- (i) the scheme; (ii) any by-law of a description referred to in subsection (21); (iii) any agreement made between the Local Authority concerned and any person who previously held an estate or interest therein and that is in force at the time when it becomes Crown land; and (iv) any condition imposed by the Local Authority concerned touching the use of that land, building or other structure or part and that is in force at the time when it becomes Crown land, shall not operate or, as the case may be, shall cease to operate in relation to that land, building or other structure or part for as long as it remains Crown land. (i) Where land, or a building or other structure or part thereof in relation to which a town planning scheme does not operate by reason of the preceding paragraph (h) ceases to be Crown land the matters and things specified in provisions (i), (ii), (iii) and (iv) of that paragraph shall operate 'in relation to the same and shall bind the purchaser, lessee or occupier thereof as if the same had never been Crown land but subject to such directions, modifications or exceptions as may be declared by the Governor in. Council by Order in Council. (j) Nothing in this subsection shall be construed to derogate from the provisions of section 21A of the Mining Act1968-1979. PART III-AMENDMENT OF CITY OF BRISBANE TOWN PLANNING ACT 9. Citation . (1) In this Part the City of Brisbane Town Planning Act 1964-1979 is referred to as the Principal Act.. (2) The Principal Act as amended by this Part may be cited as the City of Brisbane Town Planning Act 1964-1979. 10. New s. 7A. The Principal Act is amended by inserting after section 7 the following section:- "7A. Plan may include Crown land. (1) In this section- " Crown " means the Crown in right of Queensland; " Crown land " means- (a) land that is not alienated by the Crown as to any estate or interest therein; (b) land that is held by any person representing the Crown or by a trustee in trust for the Crown; (c) land that is reserved and set apart or held in trust under the Land Act 1962-1978 for a public purpose;

Local Government Act and Another Act Amendment Act 1979, No. 78 897 (d) land (other than land hereinbefore referred to), or any building or other structure or part thereof, that is occupied by the Crown or by any person representing the Crown, and that, in the case specified in provision (b), (c) or (d), is not the subject of any sale or letting by the Crown, by such person representing the Crown or, as the case may be, by such trustee. (2) The provisions of subsections (3) to (5), both inclusive, apply subject to the provisions of subsections (6) to (9), both inclusive. (3) The power of Brisbane City Council to prepare a town plan for the City of Brisbane includes, and it is declared always did include, power to prepare such a plan that includes all land, buildings and other structures within the City whether the same be Crown land or otherwise. .(4) The power of Brisbane City Council to make application under section 6 to the Minister for amendment of the Plan and of the Minister to recommend under subsection 7 an amendment of the Plan includes, and it is declared always did include, power to make such an application or recommendation in relation to any land, building or other structure or part thereof included in the Plan, whether the same be Crown land or otherwise, and whether or not the Plan is at the time of making the application or recommendation operative in relation to the land, building or other structure or part sought to be affected thereby. (5) The power of the Governor in Council to approve under section 4 of this Act, or under section 6 of the City of Brisbane Town PlanModification Act1976 of the Plan or to approve under section 6 of an amendment of the Plan or to amend under section 7 the Plan includes, and it is declared always did include, power to so approve of the Plan or an amendment or, as the case may be, to so amend in relation to any land, building- or other structure or part thereof included in the Plan whether 'the same be Crown land or otherwise and whether or not the Plan is at the time of the approval or amendment operative in relation to the land, building or other structure or part sought to be affected thereby. (6) The Plan does not bind, and it is declared never has bound, the Crown. (7) Where land, or a building or other structure or part thereof included in the Plan is or becomes Crown land, then- (a) the Plan; (b) any agreement made between Brisbane City Council and any person who previously held an estate or interest therein and that is in force at the time when it becomes Crown land; and (c) any condition imposed by Brisbane City Council touching the use of that land, building or structure or part and that is in force at the time when it becomes Crown land, shall not operate or, as the case may be, shall cease to operate in relation to that land, building or other structure or part for as long as it remains Crown land. (8) Where land, or a building or other structure or part thereof in relation to which the Plan does not operate by reason of subsection (7) ceases to be Crown land the matters and things specified in provisions (a), (b) and (c) of that subsection shall operate in relation to the same and shall bind the purchaser, lessee or occupier thereof as if the same had never been Crown land but subject to such directions, modifications or exceptions as may be declared by the Governor in Council by Order in Council. (9) Nothing in this subsection shall be construed to derogate from the provisions of section 21A of the Mining Act1968-1979.".

898 Local Government Act and Another Act Amendment Act 1979, No. 78 11. Amendment of s. 8. Section 8 of the Principal Act is amended by- (a) in subsection (2), (i) omitting paragraph (c) and substituting the following paragraph:- (c) accompanied by the consent, in writing, of the prescribed person, where he is not the applicant;"; (ii) omitting provision (ii) of paragraph (d) and substituting the following provision:- " (ii) the name of the prescribed person;"; (b) adding at the end of the section the following subsections:- (7) Where the applicant is the prescribed person referred to in provision (c) of subsection (8), save where that person otherwise agrees in writing with the Council- (a) it shall be deemed that the application is made for and on behalf of the prospective purchaser or lessee from the Crown, or other prospective occupier, of the land; (b) conditions imposed by the Council in relation to the re-zoning of the land shall be taken to bind the purchaser or lessee from the Crown, or other occupier, of the land, except in the case of a condition or part thereof declared by the Governor in Council, by notification published in the Gazette, not to so bind (he being empowered so to do if he considers that the condition or part thereof is not reasonable or is not relevant). (8) In this section the expression " prescribed person " means- (a) in the case of an application to re-zone land held from the Crown in freehold, the registered proprietor of the land; (b) in the case of an application to re-zone land held from the Crown upon a leasehold tenure, the registered lessee; (c) in the case of an. application to re-zone Crown land proposed to be sold, leased or otherwise let, the Minister of the Crown charged with responsibility for the land.".