Local Government Acts and Another Act Amendment Act of 1967 (Qld)

392 (Quallslaubc ANNO SEXTO DECIMO ELIZABETHAE SECUNDAE REGINAE No. 43 of 1967 An Act to Amend "The Local Government Acts, 1936 to 1967," and "The Cityof BrisbaneTownPlanningAct of 1964," each in certain particulars [ASSENTED TO 19TH DECEMBER, 1967] 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 . This Act may be cited as " The Local Gorer,unent Acts and Another Act Amendment Act of 1967." 2. Parts of Act. This Act is divided into Parts as follows:- PART I-PRELIMINARY; PART 11-AMENDMENTS OF " THE LOCAL GOVERNMENT ACTS, 1936 TO 1967 "; PART 111-AMENDMENTS OF " THE CITY OF BRISBANE TOWN PLANNING ACT OF 1964."

Local Government Acts and Another Act Amdt Act of 1967, No. 43 393 PART 11-AMENDMENTS OF "THE LOCAL GOVERNMENT ACTS, 1936 TO 1967" 3. (1) Construction of Part H. This Part II of this Act shall lie read as one with " The Local Government Acts, 1936 to 1967." (2) Collective title. " The Local Government Acts, 1936 to 1967," and this Part 11 of this Act may be collectively cited as " The Local Government Acts, 1936 to 1967." 4. Amendment of s. 3 (1). Subsection (1) of section three of " The Local Government Acts, 1936 to 1967 " is amended by adding to the definition " Building " the symbol and words ": The term includes any part of a building ". 5. Amendments of s. 33. Section thirty-three of " The Local Government Acts, 1936 to 1967," is amended by- (a) in subsection (7)- (i) adding to paragraph (a) the words " or, where the Local Authority approves the application subject to any condition, against that condition "; (ii) adding the following paragraph: " (c) The Court may allow an appeal (whether against a refusal or a condition of approval) unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Local Authority could lawfully subject its approval of the application in question or which are agreed upon between the Local Authority and the appellant. For the purpose of giving effect to this subsection the Court may make such order or orders as it deems fit."; (b) in subsection (10) omitting, where appearing in paragraph (b), the words and brackets " (not being a road widening) " and inserting in their stead the words and brackets " (including a road widening) "; (c) in subsection (11) omitting subparagraph (vii) of paragraph (a); (d) inserting after subsection (16) the following subsections:- " (16A) Other appeals in respect of the erection of buildings or other structures . Subject to this section, an applicant who is dissatisfied with a decision, requisition or other act of authority with respect to the erection of any building or other structure for a purpose permitted by a town planning scheme made or done or purporting to be made or done by the Local Authority or any officer of the Local Authority by virtue of the provisions of any by-law may appeal to the Court against such decision, requisition or other act of authority. (16B) Appeal may be allowed subject to conditions . The Court may allow any appeal under subsections (15), (16) or (16A) of this section or subsection (15) of section thirty-four of this Act unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Local Authority or any officer of the Local Authority could lawfully subject the approval, consent, permission, decision, requisition or other act of authority to which the appeal relates, or which are agreed upon between the Local Authority and the appellant. For the purpose of giving effect to this subsection the Court may make such order or orders as it deems fit.

394 Local Government Acts and Another Act Arndt Act of 1967, No. 43 (16c) Unlawful conditions . (a) It shall be unlawful for the Local Authority or any officer of the Local Authority- (i) in the case of any application for approval to open a new road or to subdivide any land, to subject the approval to a condition requiring corner truncation of the subject land at any corner which is already truncated; (ii) in the case of any application for approval to subdivide land not involving the opening of a road to subject the approval to a condition requiring corner truncation of the subject land at any corner; (iii) in the case of any application for approval, consent or permission to use or erect a building or other structure for any purpose other than a service station or to use land for any purpose other than a service station, to subject the approval, consent or permission to any condition requiring- (a) corner truncation; (h) the transfer of land free of cost to the Local Authority for road or any other public purpose; (c) any building or other structure to be set back from any road alignment except as prescribed by by-law; (d) payment to be made in respect of works external to the subject land except as prescribed by by-law. (h) A requirement prescribed by by-law does not apply with respect to an approval, consent or permission specified in paragraph (a) of this subsection in a case where, under that paragraph, it would be unlawful for the Local Authority or an officer of the Local Authority to subject the approval, consent or permission to that requirement as a condition thereof. (c) The provisions of this subsection do not affect any agreement entered into by an applicant with the Local Authority concerning any of the matters specified in paragraph (a) of this subsection. ( 16D) Revocation of approval , consent or permission. (a) Notwithstanding any provision of a town planning scheme or of any by-law or any condition of an approval, consent or permission to use or erect a building or other structure or to use land for any purpose, the Local Authority or any officer of the Local Authority shall not revoke any such approval, consent or permission within two years from the date of the grant thereof except- (i) upon the request in writing of the owner of the subject land; or (ii) with the prior consent of the Court. (h) In the case of an appeal to the Court, an approval, consent or permission to which this section applies shall be deemed to have been granted by the Local Authority or officer concerned on the date when the Court decided the appeal or, where any step or thing is required to be taken or done by the Council to give effect to the decision of the Court, on the date when the Council has taken or done that step of thing. (c) This section applies to an approval, consent or permission given before the date of the enactment of this section the duration whereof has not expired before that date.";

Local Government Acts and Another Act Amdt Act of 1967, No. 43 395 (e) in subsection (17)- (i) omitting, where appearing in subparagraph (i) of paragraph (a), the words, brackets and numerals " subsections (7) or (15) of this section applies " and inserting in their stead the words, brackets and numerals subsections (7), (15), (16) or (16A) of this section applies ". (ii) omitting where appearing in subparagraph ( ii) of paragraph (a) the words " of this subsection " and inserting in their stead the words, letters, numeral and brackets " of this paragraph (a) and to paragraph (d) of subsection ( 18) of this section "; (iii) omitting subparagraph (iii) of paragraph (a) and inserting in its stead the following subparagraph:- " (iii) In this subparagraph " objector " means a person who has duly objected to the granting of an application under subsection (15) of this section which the Local Authority proposes to grant. The Clerk shall give to every objector the notification prescribed by paragraph (b) of subsection (18) of this section within the period prescribed by subparagraph (ii) of this paragraph (a)."; (iv) omitting , where appearing in the first subparagraph of paragraph (b) the words, brackets and numerals " subsections (7) or (15) of this section applies " and inserting in their stead the words , brackets and numerals " subsections ( 7), (15), (16) or ( 16A) of this section applies "; (v) inserting in paragraph ( b) after the first subparagraph, the following subparagraph:- " The notification shall state the grounds of the decision "; (vi) inserting in paragraph ( b) after the third subparagraph, the following subparagraphs:- " Where the notification relates to an application to which subsection (16) of this section applies , it shall contain or be accompanied by a copy of that subsection and of this subsection. Where the notification relates to an application to which subsection (16A) of this section applies , it shall contain or be accompanied by a copy of that subsection and of this subsection."; (vii) omitting, where appearing in paragraph ( c) the words , brackets and numerals " subsections (7) or (15) of this section applies " and inserting in their stead the words , brackets and numerals " subsections (7), (15), (16) or (16A) of this section applies "; (f) in subsection (18)- (i) inserting after the first subparagraph of paragraph (a) the following subparagraph:- " The copy of the advertisement posted on the land shall be not less than two feet in height , not less than six square feet in area, and all lettering thereof shall be not less than one inch in height , and the copy shall be posted not more than six feet from the road alignment of the land and so as to be clearly visible from the road and shall be kept so posted at all times during the period of seven days next preceding the date stated in the advertisement as the date on or before which objections may be lodged with the Town Clerk."; (ii) adding to paragraph (c) the following subparagraph:- "Additionally to the Local Authority the applicant shall be deemed to be a respondent to the appeal.";

396 Local Government Acts and Another Act Amdt Act of 1967, No. 43 (iii) adding to paragraph (d) the following subparagraph: " The Local Authority shall make its decision and the clerk shall notify the applicant thereof within seven days after the time for institution of an appeal has expired or, if an appeal has been duly instituted, after the determination thereof." 6. Amendment of s. 34 (15). Subsection (15) of section thirty-four of " The Local Government Acts, 1936 to 1967," is amended by omitting paragraph (a) and inserting in its stead the following paragraph:- " (a) The Local Authority shall decide every application for approval to open any new road or to subdivide any land within the period prescribed by this subsection and shall in every such decision state the grounds thereof. Such period shall be- (i) forty days from the date of the receipt by the Local Authority of the application; or (ii) (if, with the prior approval of the Minister, the Local Authority by notice served upon the applicant before the expiration of the aforesaid period of forty days extends such period for longer than forty days) the longer period specified in the notice. Where the Local Authority decides an application to which this paragraph (a) applies, the clerk shall notify the applicant of such decision within seven days from the date of the making thereof. Such notification shall contain or be accompanied by a copy of this subsection. Any applicant who is dissatisfied with the decision of the Local Authority may appeal to The Local Government Court. The appeal may be instituted within thirty days after the date of the receipt by the applicant of the notification, but not later. Where the Local Authority fails to decide an application to which this paragraph (a) applies within the prescribed time the applicant may appeal to The Local Government Court as if the Local Authority had refused the application. Subsections (2) and (3) of section twenty-eight of " The City of Brisbane Town Planning Acts, 1964 to 1967," apply in respect to any appeal to The Local Government Court under this paragraph (a)." 7. Amendment of s. 35 (10). Subsection (10) of section thirty-five of " The Local Government Acts, 1936 to 1967," is amended by omitting paragraph (ii) and inserting in its stead the following paragraph:- " (ii) The Local Authority may serve notice upon the owner of land affected by the realignment, but until such notice is served the interests of the owner shall not be affected by the realignment. The and between the old and the new alignments shall not form part of the road unless and until it is acquired by the Local Authority and dedicated as a road. After such notice has been given the owner shall not- (a) construct, build or place any building or structure.or any part of any building or structure on; or

Local Government Acts and Another Act Amdt Act of 1967, No. 43 397 (b) reconstruct, rebuild, replace or repair any building or other structure or any part of any building or other structure which is on, the land between the old and the new alignments without the prior permission of the Local Authority. The owner or any other person who would be legally entitled to claim compensation from the Local Authority upon the acquisition by it of so much of the land affected by the notice of realignment as is situated between the old and the new alignments shall, subject to the next succeeding subparagraph of this paragraph, be entitled to obtain from the Council compensation for injurious affection to his estate or interest in the land caused by- (a) the service of the notice of realignment; or (b) the refusal by the Local Authority of any permission hereinbefore referred to in this paragraph. Except in a case of such a refusal of permission, the claim shall not arise until- (a) the land is first sold after the service of the notice of realignment; or (b) the owner, having offered the land for sale in good faith and having taken reasonable steps to obtain a fair and reasonable price for the land, has been unable to sell the land. Before awarding compensation, the Court or tribunal concerned shall be satisfied- (a) where the land has been sold, that the sale price is less than the seller might reasonably have expected to receive had there been no notice of realignment, and that the seller sold the land in good faith and took reasonable steps to obtain a fair and reasonable price for the land; (b) where the Local Authority has refused any permission hereinbefore referred to in this paragraph, that permission was applied for in good faith. The Local Authority- (a) save where the land has been sold, in the stead of making compensation claimed for injurious affection, may acquire by purchase or compulsorily the land between the old and new alignments; (b) when the land between the old and the new alignments has been cleared of buildings and other structures, may, and if thereunto required by the owner, shall acquire by purchase or compulsorily the land between the old and the new alignments, and, in either case, compensation if not agreed upon between the parties, shall be assessed as at the date of such acquisition. The provisions of subsection (12) of section thirty-three of this Act shall, with and subject to all necessary adaptations, apply in respect of claims under this paragraph in respect of injurious affection. Except with the prior consent of The Local Government Court the Local Authority shall not serve notice of realignment under this paragraph in respect of any land after the owner thereof shall have applied to the

398 Local Government Acts and Another Act Amdt Act of 1967, No. 43 Local Authority for approval to subdivide the land or for approval, consent or permission to use or erect a building or other structure upon the land or to use the land for any purpose, which consent The Local Government Court shall not grant unless and until it is satisfied that the purpose of the notice is to enable the Local Authority to effect a bona fide and reasonable widening of the road concerned. PART III-AMENDMENTS OF "THE CITY OF BRISBANE TOWN PLANNINGAcT OF 1964 " 8. (1) Construction of Part III. This Part III of this Act shall be read as one with " The City of Brisbane Town Planning Act of 1964." (2) Collective title. " The City of Brisbane Town Planning Act of 1964," and this Part III of this Act may be collectively cited as " The City of Brisbane Town Planning Acts, 1964 to 1967." 9. Amendments of s. 2 . Section two of " The City of Brisbane Town Planning Act of 1964 " is amended by- (a) renumbering that section as subsection (1); (b) adding to the proviso to that subsection as so renumbered the words " and, in the case of every such appeal, the decision thereon, (whether made before or after the passing of " The Local Government Acts and Another Act Amendment Act of 1967 ") shall have (and it is hereby declared always had on and from the making thereof) effect as if the appeal had been decided before the coming into operation of this Act "; and (c) adding the following subsections:- " (2) It is hereby declared that the right of appeal conferred by section thirteen of " The City of Brisbane (Town Plan) Act of 1959," always included a right of appeal against any requirement or decision of The Greater Brisbane Town Planning Committee established under that Act and that, as respects such an appeal and any requirement, decision or other act of authority made or done by the Town Clerk or any other officer of the Council under any ordinance made pursuant to section twelve of that Act, the expression " delegate " where used in the said section thirteen includes and it is hereby declared always included the said Committee and the Town Clerk or such other officer. The proviso to subsection (1) of this section shall apply with respect to any right of appeal referred to in this subsection, and the Minister may, pursuant to his powers under the said section thirteen, make a fresh appointment of a person or persons to hear and determine any such appeal in any case where the appeal remains to be determined at the date of the enactment of this subsection and the Minister deems the appointment necessary. (3) Where an appeal against refusal of approval or any condition of approval of an application to open a new road or subdivide any land is or has been, pursuant to the proviso to subsection (1) of this section, allowed the proposed allotments shown on the plan of survey made in accordance with the decision on the appeal shall be deemed, and it is hereby declared always were on and from the date of allowance of the appeal to be deemed, for the purpose of the Plan, to be allotments in existence on the day called in the Plan the appointed day.

Local Government Acts and Another Act Amdt Act of 1967, No. 43 399 (4) The person hearing and determining any appeal under the repealed Acts may, and it is hereby declared always could , allow the appeal subject to such conditions as he deems or deemed fit, being conditions to which the Council or its delegate could lawfully subject or could have lawfully subjected the approval, consent, permission or other act of authority to which the appeal relates." 10. Amendment of s. 3 . Section three of " The City of Brisbane Town Planning Act of 1964 " is amended by- (a) adding to the definition " Delegate " the following paragraph:- " The term includes the Town Clerk or any other officer of the Council as respects. any decision, requisition or other act of authority made or done by him under any ordinance, under " The City of Brisbane Acts, 1924 to 1966," whether or not the ordinance was or purported to be made pursuant to this Act;"; (b) in the definition " Erect " inserting after the word " building," where that word appears in paragraph (f), the words " or other structure ". 11. Amendments of s. 9 . Section nine of " The City of Brisbane Town Planning Act of 1964 " is amended by- (a) adding to subsection (1) the words " or, where the Council approves the application subject to any condition, against that condition "; (b) adding the following subsection:- " (3) The Court may allow an appeal (whether against a refusal or a condition of approval) unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Council could lawfully subject its approval of the application in question or which are agreed upon between the Council and the appellant. For the purpose of giving effect to this section the Court may make such order or orders as it deems fit." 12. Amendment of s. 13 (2). Subsection (2) of section thirteen of " The City of Brisbane Town Planning Act of 1964 " is amended by omitting the words and brackets " (not being a road widening) " and inserting in their stead the words and brackets " (including a road widening) ". 13. Amendment of s. 14 (1). Subsection (1) of section fourteen of "The City of Brisbane Town Planning Act of1964 " is amended by omitting paragraph (g). 14. New s. 20A inserted . " The City of Brisbane Town Planning Act of 1964," is amended by inserting after section twenty the following section:- " [20A.] Other appeals in respect of the erection of buildings or other structures . Subject to this Act an applicant who is dissatisfied with a decision, requisition or other act of authority with respect to the erection

400 Local Government Acts and Another Act Amdt Act of 1967, No. 43 of any building or other structure for a purpose permitted by the Plan made or done or purporting to be made or done by the Council or its delegate by virtue of the provisions of any ordinance made under " The City of Brisbane Acts, 1924 to 1966 ," and whether an ordinance made pursuant to this Act or not , may appeal to the Court against such decision , requisition or other act of authority." 15. New s. 20B inserted . " The City of Brisbane Town Planning Act of 1964," is amended by inserting after section 20A, as previously inserted by this Act, the following section:- " [208.] Appeal may be allowed subject to conditions . The Court may allow any appeal under sections eighteen, nineteen, twenty or 20A of this Act unconditionally or subject to such conditions as the Court deems fit, being conditions to which the Council or its delegate could lawfully subject the approval, consent, permission, decision, requisition or other act of authority to which the appeal relates, or which are agreed upon between the Council or its delegate and the appellant. For the purpose of giving effect to this section the Court may make such order or orders as it deems fit." 16. New s. 20C inserted. " The City of Brisbane Town Planning Act of 1964," is amended by inserting after section 20B, as previously inserted by this Act, the following section:- " [20C.] Unlawful conditions . (1) It shall be unlawful for the Council or its delegate- (a) in the case of any application for approval to open a new road or to subdivide any land, to subject the approval to a condition requiring corner truncation of the subject land at any corner which is already truncated; (b) in the case of any application for approval to subdivide land not involving the opening of a road, to subject the approval to a condition requiring corner truncation of the subject land at any corner; (c) in the case of any application for approval, consent or permission to use or erect a building or other structure for any purpose other than a service station or to use land for any purpose other than a service station, to subject the approval, consent or permission to any condition requiring- (i) corner truncation; (ii) the transfer of land free of cost to the Council for road or any other public purpose; (iii) any building or other structure to be set back from any road alignment except as prescribed by ordinance; (iv) payment to be made in respect of works external to the subject land except as prescribed by ordinance. (2) A requirement prescribed by ordinance does not apply with respect to an approval, consent or permission specified in subsection (1) of this section in a case where, under that subsection, it would be unlawful for the Council or its delegate to subject the approval, consent or permission to that requirement as a condition thereof.

Local Government Acts and Another Act Amdt Act of 1967, No. 43 401 (3) The provisions of this section do not affect any agreement entered into by an applicant with the Council or its delegate concerning any of the matters specified in subsection (1) of this section." 17. New s. 20D. "The City of Brisbane Town Planning Act of1964," is amended by inserting after section 20c, as previously inserted by this Act, the following section:- " ( 20D.) Revocation of approval , consent or permission. (1) Notwithstanding any provision of the Plan or of any ordinance or any condition of an approval, consent or permission to the use or erection of a building or other structure or use of land for any purpose, the Council or its delegate shall not revoke any such approval, consent or permission within two years from the date of the grant thereof except- (a) upon the request in writing of the owner of the subject land; or (b) with the prior consent of the Court. (2) in the case of an appeal to the Court, an approval, consent or permission to which this section applies shall be deemed to have been granted by the Council or its delegate on the date when the Court decided the appeal or, where any step or thing is required to be taken or done by the Council or its delegate to give effect to the decision of the Court, on the date when the Council or its delegate has taken or done that step or thing. (3) This section applies to an approval, consent or permission given before the date of the enactment of this section the duration whereof has not expired before that date." 18. Amendments of s. 21. Section twenty-one of " The City of Brisbane Town Planning Act of 1964," is amended by- (a) in subsection (1)- (i) omitting where appearing in paragraph (a) the words " or nineteen " and inserting in their stead the words, numeral and letter ", nineteen or 20A"; (ii) inserting after the words " of this subsection " where appearing in paragraph (b) the words " and to subsection (4) of section twenty-two of this Act "; (iii) omitting paragraph (c) and inserting in its stead the following paragraph :- " (c) In this paragraph " objector " means a person who has duly objected to the granting of an application under section nineteen of this Act which the Council proposes to grant. The Town Clerk shall give to every objector the notification prescribed by subsection (2) of section twenty-two of this Act within the period prescribed by paragraph (b) of this subsection.";

402 Local Government Acts and Another Act Amdt Act of 1967, No. 43 (b) in subsection (2)- (i) omitting where appearing in the first paragraph the words " or nineteen " and inserting in their stead the words, numeral and letter ", nineteen or 20A"; (ii) inserting after the first paragraph the following paragraphs:- " The notification shall state the grounds of the decision. Where the notification relates to an application to which section nine of this Act applies, it shall contain or be accompanied by a copy of that section and of this section. Where the notification relates to an application to which section eighteen of this Act applies, it shall contain or be accompanied by a copy of that section and of this section. Where the notification relates to an application to which section nineteen of this Act applies, it shall contain or be accompanied by a copy of that section and of this section. Where the notification relates to an application to which section 20A of this Act applies, it shall contain or be accompanied by a copy of that section and of this section."; and (c) in subsection (3) omitting the words " or nineteen ", and inserting in their stead the words, numeral and letter ", nineteen or 20A". 19. Amendments of s. 22. Section twenty - two of " The City of Brisbane Town Planning Act of 1964 ," is amended by- (a) inserting after the first paragraph of subsection ( 1) the following paragraph :- " The copy of the advertisement on the land shall be not less than two feet in height , not less than six square feet in area , and all lettering thereof shall be not less than one inch in height , and the copy shall be posted not more than six feet from the road alignment of the land and so as to be clearly visible from the road and shall be kept so posted at all times during the period of seven days next preceding the date stated in the advertisement as the date on or before which objections may be lodged with the Town Clerk." (b) adding to subsection ( 2) the following paragraph:- " The notification shall contain or be accompanied by a copy of this section."; (c) adding to subsection ( 3) the following paragraph:- "Additionally to the Council the applicant shall be deemed to be a respondent to the appeal."; (d) adding to subsection ( 4) the following paragraphs:- The Council shall make its decision and the Town Clerk shall notify the applicant thereof within seven days after the time for institution of an appeal has expired or, if an appeal has been duly instituted, after the determination thereof. The notification shall state the grounds of the decision."

Local Government Acts and Another Act Amdt Act of 1967, No. 43 403 20. Amendments of s. 25. Section twenty-five of the Principal Act is amended by- (a) in subsection (3) omitting the words " or its delegate "; and (b) adding the following subsection:- " (4) Advice of the Advisory Committee shall not limit or affect in any way the discretion had by the Council or any delegate or officer of the Council with respect to the exercise or discharge of any responsibility, power, authority, function or duty."