Local Government and City of Brisbane Town Planning Acts Amendment Act 1985 (Qld)

1355 ANNO TRICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 88 of 1985 An Act to amend the Local Government Act 1936 -1985 in certain particulars and the City of Brisbane Town Planning Act 1964- 1985 in certain particulars [ASSENTED TO 9TH DECEMBER, 1985]

1356 Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 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 Government and City of Brisbane Town Planning Acts Amendment Act 1985. 2. Commencement . (1) Section 1 and this section shall commence on the day this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act or the provisions thereof specified in the Proclamation shall commence on the day or days appointed by Proclamation for the commencement of this Act or, as the case may be, those provisions. 3. Arrangement . This Act is arranged as follows:- PART I-PRELIMINARY ( ss. 1-3); PART II-AMENDMENT OF LOCAL GOVERNMENT ACT (ss. 4-27); PART III-AMENDMENT OF CITY OF BRISBANE TOWN PLANNING ACT ( ss. 28-34). PART II-.AMENDMENT OF LOCAL GOVERNMENT ACT 4. Citation. (1) In this Part the Local Government Act 1936-1984 as amended by the Acts No. 44 of 1985 and No. 45 of 1985 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Local Government Act 1936-1985. 5. Amendment of s. 1 . Section 1 of the Principal Act is amended, in subsection (3), by inserting after the expression "Section 33-Town Planning," the following expression:- "Section 33A-Rezoning of certain residential allotments, Section 33B-Sale of land specified in section 33A,". 6. Amendment of s. 3. Interpretation and definitions . Section 3 of the Principal Act is amended by inserting after the definition "Electric line" in subsection (1) the following definition:- "Electricity Commissioner"-the Electricity Commissioner appointed pursuant to the Electricity Act 1976 or that Act as amended: The term includes any person who for the time being occupies the office or performs the duties of the Commissioner;".

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1357 7. Amendment of s. 4 ( 2). General power to make regulations. (1) Section 4 of the Principal Act is amended in subsection (2) by, in the paragraph commencing "The regulations may prescribe"- (a) inserting after the word "forms" the words "(which may provide for verification in whole or in part by declaration under the Oaths Act1867-1981)"; (b) omitting the words "fifty pounds" and substituting the expression '1500". (2) No regulation purporting to prescribe a form pursuant to The Local Government Act of 1936 or that Act as amended shall be held to be ineffectual for the purpose by reason that it provides for verification of the contents of the form or any part thereof by declaration under the Oaths Act of 1867 or that Act as amended. 8. Amendment of s. 6 (1) (i). Towns. Section 6 of the Principal Act is amended in subsection (1) by adding to the first subparagraph of paragraph (i) the following subparagraph:- "The preceding subparagraph shall not apply in respect of the City of Thuringowa which city shall, until the conclusion of the next triennial election to be held after the commencement of the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, be governed by a council of not less than 12 members including the chairman and thereafter shall be governed in accordance with the next preceding paragraph.". 9. Amendment of s. 7 (10) (ii ). Election of chairman . Section 7 of the Principal Act is amended in subsection (i0) by omitting from paragraph (ii) the expression ", ,". 10. Amendment of s. 10. Election of deputy chairman . Section 10 of the Principal Act is amended by- (a) inserting after subsection (1) the following subsection:- "(1.4) At a meeting of the Local Authority, the members present may by resolution declare vacant the office of deputy chairman. A resolution to declare the office of deputy chairman vacant shall not be made unless notice of intention to move the resolution is given to the chairman and each member of the Local Authority not less than 14 days before the date of the meeting at which the resolution is to be moved."; (b) adding to the end of subsection (2) the following paragraph:- "Notwithstanding the provisions of the next preceding paragraph. where the office of deputy chairman is declared vacant at.a meeting of the Local Authority pursuant to subsection (1.i),

1358 Local Government and City of Brisbane Town Planning . 4cts Amendment Act 1985, No. 88 the members present may forthwith elect one of the members to be deputy chairman."; (c) omitting from paragraph (b) of subsection (3) the word "Become" and substituting the words "Unless the office becomes vacant under this Act beforehand, become". 11. Amendment of s. 17. Officers. Section 17 of the Principal Act is amended by inserting after subsection (1) the following subsection:- "(l.4) Functions of clerk. The clerk shall be the chief administrative officer of the Local Authority and his functions shall include the following:- (a) to administer and co-ordinate all the business of the Local Authority; (b) to carry out all instructions of the Local Authority in respect of its officers or to ensure that all such instructions are carried out; (c) to transmit to the Local Authority through the chairman all reports prepared for the Local Authority by its officers; (d) to be responsible for the conduct of all correspondence between the Local Authority and other persons.". 12. Amendment of s. 19 . Contracts . Section 19 of the Principal Act is amended by inserting after subsection (4.A) the following subsection:- "(4a) Major development works on Local Authority land. (a) The provisions of subsections (4) and (5) shall not apply in the case of a contract entered into with the approval, for the purposes of this subsection, of the Governor in Council. (b) For the purposes of this subsection the Governor in Council may, upon the recommendation of the Minister, grant approval to a Local Authority to enter a contract where he is satisfied that the contract is in respect of major development works that are being carried out, or proposed or contemplated, on land vested in or under the control of the Local Authority. (c) The Governor in Council may grant his approval for the purposes of this subsection in respect of a specified contract or contracts or a class of contract. (d) In granting his approval for the purposes of this subsection the Governor in Council may impose such conditions as he thinks fit including conditions in respect of the contents of a contract entered into pursuant to his approval. (e) In this subsection:- (i) the term "contract" includes a contract in respect of the acquisition or disposition of any estate or interest in land; (ii) the term "Local Authority" includes Brisbane City Council; (iii) the term "major development works" means works that in the opinion of the Governor in Council are major development works.".

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1359 13. Amendment of s. 21 (5.a). Separate services rate . Section 21 of the Principal Act is amended in subsection (5.k) by inserting after the words "section 32 (4.k)" the words ", or section 32 (5.4),". 14. Amendment of s. 21 ( 10). Rural and rural residential rates. (1) Section 21 of the Principal Act is amended in subsection (10) by adding at the end of the subsection the following paragraph.- (iii) In defining the lands subject to a level of rating pursuant to paragraph (ii) (a) a Local Authority may include both land that in its opinion is being reasonably used for primary production and land that in its opinion cannot be put to any profitable use". (2) It is declared that, where, since the commencement of the Local Government Act Amendment Act of 1973, a Local Authority has made and levied two levels of general rates on land that in its opinion was being reasonably used for primary production or land that in its opinion could not be put to any profitable use and included both such classes of land in either or both of the two levels of general rates so made and levied. even, such rate was validly made and levied and may be recovered accordingly. 15. Amendment of s. 23 ( 6.k). Separate services rate fund . Section 23 of the Principal Act is amended in subsection (6.x) by- (a) omitting paragraph (ii) and substituting the following paragraph:- "(ii) A separate services rate fund shall be applied to the payment of interest and redemption in respect of the loan moneys borrowed for the particular function of loca! government in respect of which the separate services rate was made and levied or in the discharge of any obligation undertaken or expenses incurred in relation thereto.": (b) adding the following paragraph:- "(iv) In this subsection the term "separate services rate" means a separate services rate made and levied pursuant to section 21 (5.k).". 16. Amendment of s. 31B. By-laws respecting fencing swimming pools. Section 31B of the Principal Act is amended by omitting from the proviso to subsection (1) the words "situated on an island located off the coast of Queensland and". 17. New s. 32 (5A). Section 32 of the Principal Act is amended by inserting after subsection (5) the following subsection:- " (5k) Satellite re-broadcast facilities . A Local Authority. as a function of local government. may provide, or contribute to the cost of providing, facilities to receive and re-broadcast to its Area or part thereof radio and television signals from satellites. In this subsection the term "provide" includes operate, maintain, or manage and the term "providing" has a corresponding meaning.".

I iW Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 18. Amendment of s. 32 ( 12). Materials of roads , etc., belong to Local Authority. (1) Section 32 of the Principal .Act is amended in subsection (12) by inserting the expression "(a)" before the words "the materials" and adding to the subsection the following paragraphs:- "(b) Where in the exercise and performance of the functions of local government under this Act or any other Act a Local Authority has constructed (whether before or after the commencement of section 18 of the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985) any sewerage. water or drainage pipes or other works or things (whether of the same or another descnption) into, through, across or under any land of which the Local Authority is not the owner, the property in the pipes, works or things remains and shall be held always to have remained in the Local Authority. (c) Paragraph (b) does not apply in relation to- any open drain; or any house drain or soil pipe within the meaning of the Standard Sewerage By-laws made under The Sewerage and Water Supply Act of 1949 as amended, but does apply in relation to a lining (if any) with which an open drain may be lined. (d) A Local Authority that is the owner of any pipes, works or things in any land is entitled to enter the land at all times by its agents. contractors. workmen and persons authorised by it. with or without machinery, equipment and vehicles, for the purpose of inspecting, maintaining, repairing, altering or adding to (in each case as a function of local government) the pipes, works or things.". (2) The amendment to the Principal Act provided for by subsection (1) shall not be construed to confer a right to recover money paid as compensation in connexion with the construction in any land of pipes, works or things or by reason of the existence in any land of pipes, works or things. 19. Amendment of s. 33 (5). Local Authority may propose amendments of town planning scheme . (1) Section 33 of the Principal Act is amended in subsection (5) by- (a) inserting in provision (iii) of paragraph (a) after the expression "(iii)" the words "subject to the next following subparagraph,"; (b) inserting after provision (iii) of paragraph (a) the following subparagraphs:- "The Local Authority shall not make application to the Minister to amend a town planning scheme by the inclusion of a development control plan or by altering the boundaries of an existing development control plan unless the Minister has first given his consent to the preparation of the plan proposed to be

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1361 included or the alteration proposed to be made and the Local Authority has, by its resolution, approved the preparation of the plan proposed or the alteration proposed. The next preceding subparagraph shall not apply where the application to amend a town planning scheme is in respect of the inclusion of a development control plan, or the alteration of the boundaries of an existing development control plan, which plan or alteration was in preparation before the commencement of section 19 of the Local Government and City of BrisbaneTown Planning Acts Amendment Act 1985.". 20. Amendment of s. 33 ( 18). Procedure for processing applications for re-zoning or consent and rights of objection and appeal in relation thereto. Section 33 of the Principal Act is amended in subsection (18) by inserting after the first subparagraph of paragraph (k) the following subparagraph:- "Upon the hearing of an appeal instituted after the commencement of the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, it shall be for the appellant objector to establish that the application should be refused or his appeal upheld.". 21. Amendment of s. 33 (18AA). Modification of approvals granted. Section 33 of the Principal Act is amended in subsection (18.-.-k) by inserting after the words "on the site is to" in paragraph (e) (iii) the word "be". 22. Amendment of s. 33 (20). Offences. Section 33 of the Principal Act is amended in subsection (20) by inserting after the first paragraph the following paragraph:- "A person who, having been convicted of a continuing offence, continues the offence may be prosecuted from time to time in respect thereof.". 23. New s. 33 (20A). Section 33 of the Principal Act is amended by insert ing after subsection (20) the following subsection:- "(20.A) Restraining orders . (a) Upon the hearing of a complaint for a contravention of or failure to comply with any provision of a town planning scheme, the court that hears the complaint may make a restraining order on the defendant in addition to or in lieu of any penalty it is authorized to impose, if it is satisfied that the contravention or failure- (i) was a continuation of an offence of which the defendant was previously convicted; or (ii) was of the same or a similar character or carried out in the prosecution of the same purpose as a contravention of or failure to comply with any provision of the town planning scheme of which the defendant was previously convicted.

1362 Local Government and City of Brisbane Town Planning,4cts Amendment Act 1985, No. 88 (b) A restraining order- (i) may direct the defendant to cease any activity that is a contravention of or a failure to comply with a provision of a town planning scheme; (ii) may direct the defendant to do any act or thing required to comply with or to cease a contravention of a provision of a town planning scheme; may be in such terms as to the court appear apt to secure compliance with a town planning scheme; and (iv) may limit the time within which any of its requirements are to be complied with. (c) A person on whom a restraining order is made who fails to comply with the order in ever, respect commits an offence against this Act and is liable to a penalty not exceeding $10 000 and to a penalty not exceeding $-500 for each day on which the failure to comply is continued. (d) In this subsection the term "court" means a magistrates court constituted in accordance with the Justices Act 1886-1985.". 24. New ss. 33A and 338. The Principal Act is amended by inserting after section 33 the following sections:- "33.a. Rezoning of certain residential allotments. (1) In this section- "access" means practicable means of entry for persons and vehicles into an allotment from a constructed road that abuts the allotment or, where permitted by the Local Authority, by means of an easement: "allotment" means an allotment within the meaning of section 33 that was created by subdivision prior to the 21st day of December. 1966: "prescribed allotment" means a vacant allotment of less than 1 100 square metres included in a zone in which it is lawful to erect a building for residential purposes and- (a) that does not have access; or (b) that does not have available to serve it each of the following facilities:- electric power; reticulated water; sewerage; "residential purposes" means the use of a building or any part thereof as a dwelling whether solely or in conjunction with any other use; "town planning scheme" means a town planning scheme within the meaning of section 33; "town planning scheme area" means a town planning scheme area within the meaning of section 33: "vacant allotment" means an allotment on which there is no building for use for residential purposes; "zone" means a zone within the meaning of section 33.

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1363 (2) Upon the commencement of section 24 of the LocalGovernmentand City ofBrisbane Town Planning Acts AmendmentAct 1985, for the purposes of this section , a Local Authority that has a town planning scheme for any part of its Area, may in respect of a prescribed allotment in that part of its Area- (a) make an application to the Minister under section 33 (5) for the approval by the Governor in Council for amendment of the town planning scheme by excluding the prescribed allotment from the zone in which it is and including it in a zone in which it is unlawful, or lawful only with the consent of the Local Authority , to erect a building for use for residential purposes; or (b) as part of a new town planning scheme in respect of which an application under section 33 (3) is made to the Minister for the approval by the Governor in Council, include the prescribed allotment in a zone in which it is unlawful, or lawful only with the consent of the Local Authority, to erect a building for use for residential purposes. In each case the Local Authority shall give notice to the Minister that it has taken the action referred to in paragraph (a) or, as the case may be, paragraph (b), for the purposes of this section. (3) The Governor in Council shall not- (a) approve an amendment to a town planning scheme pursuant to an application under paragraph (a) of subsection (2); or (b) approve a new town planning scheme containing a provision included pursuant to paragraph (b) of subsection (2), unless he is satisfied that the prescribed allotment does not have access or does not have available to serve it such facilities as are ordinarily required by the Local Authority in approving the subdivision of similar land for residential purposes in the town planning scheme area in which the prescribed allotment is located. (4) Without derogation of the provisions of section 33 (14), where the Governor in Council- (a) approves an amendment to a town planning scheme pursuant to an application under paragraph (a) of subsection (2); or (b) approves a new town planning scheme containing a provision included pursuant to paragraph (b) of subsection (2),

1364 Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 the provisions of section 33 (10) shall not apply to a person whose estate or interest in a prescribed allotment is injuriously affected by the coming into operation of the amendment or provision, as the case may be, or by a prohibition or restriction imposed thereby. (5) The provisions of subsection (4) shall not apply- (a) in the case where a person has been injuriously affected by the coming into operation of an amendment to a town planning scheme, unless the Local Authority has complied with advertisement requirements in accordance with paragraph (b) of section 33 (5); or (b) in the case where a person has been injuriously affected by the coming into operation of a provision of a new town planning scheme, unless the Local Authority has complied with the advertisement requirements of section 33 (3), within 12 months of the commencement of section 24 of the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985. (6) The Governor in Council may make an Order in Council pursuant to this subsection and such order- (a) may declare that the provisions of this section and section 33B shall not apply in respect of a town planning scheme area, or part thereof, specified in the order; (b) shall take effect from the date of its publication in the Gazette or from such later date as is specified in the order. (7) The Governor in Council shall not make an Order in Council pursuant to subsection (6) except upon the application to the Minister by the Local Authority whose Area is affected thereby. (8) Where an Order in Council is issued pursuant to subsection (6) the provisions of this section and section 33B shall, in respect of the town planning scheme area, or part thereof, in accordance with the Order in Council, cease to apply and be deemed to have expired for the purposes of section 20 of the Acts Interpretation Act 1954-1977. 33B. Sale of land specified in section 33A. (1) Where, after the commencement of section 24 of the Local Government andCity of Brisbane Town Planning Acts Amendment Act 1985, a person sells a prescribed allotment that may, in accordance with section 33A, be included in a zone in which it is unlawful, or lawful only with the consent of the Local Authority, to erect a building for use for residential purposes so that the provisions of section 33 (10) will not be applicable to the purchaser, the

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1365 seller or his agent shall give to the purchaser or his agent a statement in writing in compliance with the requirements of this section. This subsection applies in respect of a sale referred to herein whether it takes place before or after the Local Authority concerned decides to take action, or has taken action, in accordance with paragraph (a) or (b) of section 33A (2). (2) A statement in writing under this section shall- (a) clearly identify the allotment to which the statement relates; (b) state the names and addresses respectively of the purchaser and seller; (c) state clearly that the allotment may be rezoned, without compensation being payable by the Local Authority, so that it will be unlawful or lawful only with the consent of the Local Authority to erect a building for use for residential purposes; (d) state the date on which the statement is given; and (e) be signed by, or on behalf of, the seller, and shall not contain any written, typewritten or printed matter whatsoever except the letterhead, if any, of the seller or his agent, giving it. (3) The statement in writing shall be given to the purchaser or his agent before the purchaser signs any contract, agreement or other document whatsoever legally binding or intended to legally bind the purchaser in respect of the sale. (4) If in respect of the sale of the prescribed allotment a statement in writing is not given to the purchaser or his agent in accordance with this section, the purchaser may at his option avoid the contract, agreement or other document entered into by him in respect of that sale by notice in writing given in accordance with subsection (5). (5) A notice of avoidance referred to in subsection (4) shall be effectual for its purpose only if- (a) it is given to the seller or his agent- within six months after the contract, agreement or other document is entered into; and at a time (whether before or after the Local Authority concerned has taken action in accordance with paragraph (a) or (b) of section 33A (2)) when the prescribed allotment may be rezoned, without compensation being payable by the Local Authority,

1366 Local Govvern,nent and Citj, of Brisbane Town Planning A cts Amendment Act 1985, No. 88 pursuant to section 33.a or at a time after the prescribed allotment has been so rezoned; and (b) the purchaser is materially prejudiced by his not having been given a statement in writing in compliance with the requirements of this section. Without limiting the circumstances in which a purchaser may be materially prejudiced, where in breach of subsection (1) a purchaser is not given any statement in writing at all before he signs a contract. agreement or other document such as is referred to in subsection (3) he shall be presumed conclusively to be thereby materially prejudiced if he entered into the purchase of the prescribed allotment in question for use by himself or another for residential purposes whether upon that purchase or upon a resale of the prescribed allotment. (6) Upon the avoidance of a contract, agreement or other document pursuant to this section, the seller and, in a case where the sale was effected through an agent, the agent, shall be liable at law, jointly and severally, for the repayment to the purchaser of all moneys paid by him under the contract, agreement or other document and the purchaser shall be entitled to recover those moneys by action in a court of competent jurisdiction as for a debt due and owing to him. (7) Where pursuant to this section a purchaser avoids a contract, agreement or other document entered into by him in connexion with a sale to which this section applies after the assurance to him of title to the estate in the allotment purchased by him, then that purchaser shall, subject to the tender to him of repayment in full as prescribed by subsection (6), execute such instruments as, being necessary to reassure that title to the seller or his nominee, are presented to him for execution by or on behalf of the seller and deliver up to the seller or his nominee any relevant instrument of title in his possession or under his control, but the purchaser shall not be liable for any costs or expenses in respect of the reassurance of title. (8) Any covenant, agreement or condition expressed or implied in any contract, agreement or other document legally binding, or intended to legally bind, the purchaser in respect of a sale to which this section applies, or in a separate document, whereby it is agreed between the seller and the purchaser that this section or a provision thereof shall not apply in respect of the sale, or shall apply subject to exceptions, limitations, or restrictions or otherwise affecting or prejudicing the rights and remedies had by the purchaser under this section, shall be absolutely void and of no effect whatsoever.

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1367 (9) In any civil proceedings in which it is material to prove that- (a) a statement in writing was given in accordance with this section; (b) a purchaser is materially prejudiced by a breach of subsection (1); or (c) a purchase of a prescribed allotment was entered into for use for residential purposes, the onus of proving the fact in question shall lie upon the party who relies on it. (10) A notice or statement in writing (hereinafter in this section referred to as a "notice") required or authorised to be given by this section to any person may be given to that person- (a) by delivering the notice to him personally; (b) by leaving the notice for him at his usual or last known place of business or residence; (c) by sending the notice to him by registered post: (d) in the case of a corporate person by leaving the notice at or sending the notice to its registered office or principal place of business. (11) A term used in this section and in section 33A has the same meaning as it has in that section, unless the contrary intention appears.". 25. Amendment of s. 34. Subdivision of land. Section 34 of the Principal Act is amended by omitting subsection (12GG) and inserting after subsection (12G) the following subsection:- " (12GG). A Local Authority shall not approve an application for the subdivision of land (whether or not the proposed subdivision involves the opening of a road)- (a) where the application is for the subdivision of land included in a Residential Zone, a Rural Residential Zone or similar zone under a town planning scheme approved by the Governor in Council under this Act or land used or proposed to be used for a purpose ordinarily associated with the use of land included in such a zone, unless- (i) at the time the application is made electricity is available to serve the parcels of land resulting from the subdivision: (ii) an agreement exists between the applicant and the electricity authority for electricity to be made available to serve the parcels of land resulting from the subdivision within a period of six months from the day when the plan of subdivision is approved by the Local Authority under its seal or within

1 368 Local Government and City of Brisbane Town Planning Acts Amendment .-pct 1985, No. 88 such longer period as is acceptable to the Local Authority, or (iii) after consultation with the Electricity Commissioner, the Local Authority is satisfied that it is not reasonable to require that electricity be made available to serve the parcels of land resulting from the subdivision, (b) where any rates or charges made and levied under this Act or any other Act in respect of the land the subject of the application are in arrears, or an}' expenses remain a charge over that land under this Act or any other Act, until those rates, charges or expenses have been paid in full.". 26. Amendment of s. 42 A. Impoundings by private persons . Section 42.A of the Principal Act is amended by adding at the end thereof the following subsection:- "(6) Local Authority may assist in private impoundings. Where the land upon which any animal is found trespassing is within an Area in which section 42B applies the Local Authority may, upon the request of, and with the authority in writing of, the occupier of the land, by its agent enter onto the land and seize and take possession of the animal. Where an animal has been seized by a Local Authority under this subsection the occupier of land who requested the Local Authority to make the seizure shall be deemed to be the impounder of the animal and he may exercise as against the proprietor of the animal the rights conferred on him by subsection (1), notwithstanding that he has not performed the duties cast on him by that subsection, and he is excused from performing those duties. The provisions of section 42B, other than subsections (1) and (2) thereof, apply in respect of a seizure made under this subsection, as if it were a seizure made under that section, and in respect of the animal seized.". 27. Amendment of s. 50 (2) (ii). Entry. Section 50 of the Principal Act is amended in subsection (2) by inserting after the words "in any structure or premises" where they occur in subparagraph (ii) the words "and to inspect, maintain, repair, alter or add to such works, matters or things". PART III-AMENDMENT OF CITY OF BRISBANE TOWN PLANNING ACT 28. Citation . (1) In this Part the City of Brisbane Town Planning Act 1964-1985 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 1964-1985.

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1369 29. Amendment of s. 6 . Brisbane City Council may propose amendments of Town Plan . Section 6 of the Principal Act is amended in subsection (1) by- (a) inserting after the expression "(c)" where it occurs in the first paragraph, the words "subject to the next following paragraph,"; (b) inserting after the first paragraph the following paragraphs:- "Brisbane City Council shall not make application to the Minister to amend the Plan by the inclusion of a development control plan or by altering the boundaries of an existing development control plan unless the Minister has first given his consent to the preparation of the plan proposed to be included or the alteration proposed to be made and Brisbane City Council has, by its resolution, approved the preparation of the plan proposed or the alteration proposed. The next preceding subparagraph shall not apply where the application to amend the Plan is in respect of the inclusion of a development control plan or the alteration of the boundaries of an existing development control plan, which plan or alteration was in preparation before the commencement of section 29 of the Local Government and City of BrisbaneTownPlanning ActsAmendment Act 1985.". 30. Amendment of s. 22. Objection to certain applications and appeals by objectors . Section 22 of the Principal Act is amended by inserting after the first paragraph of subsection (8) the following paragraph:- "Upon the hearing of an appeal instituted after the commencement of the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, it shall be for the appellant objector to establish that the application should be refused or his appeal upheld.". 31. New ss. 22F and 22G. The Principal Act is amended by inserting after section 22E the following sections:- "22F. Rezoning of certain residential allotments . (1) In this section- "access" means practicable means of entry for persons and vehicles into an allotment from a constructed road that abuts the allotment or, where permitted by Brisbane City Council, by means. of an easement; "allotment" means an allotment that was created by subdivision prior to the 21st day of December 1965, "prescribed allotment" means a vacant allotment of less than 1 100 square metres included in a zone in which

1370 Local Government and Cur of Brisbane Town Planning Acts Am endment Act 1985, No. 88 it is lawful to erect a building for residential purposes and- (a) that does not have access: or (b) that does not have available to serve it each of the following facilities:- electric power; reticulated water; sewerage; "residential purposes " means the use of a building or any part thereof as a dwelling whether solely or in conjunction with any other use; "vacant allotment " means an allotment on which there is no building for use for residential purposes. (2) Upon the commencement of section 31 of the Local Government and Citr of Brisbane Town Planning Acts Amendment Act 1985. for the purposes of this section . Brisbane City Council, may, in respect of a prescribed allotment- (a) make an application to the Minister under section 6 for the approval by the Governor in Council for amendment of the Plan by excluding the prescribed allotment from the zone in which it is and including it in a zone in which it is unlawful , or lawful only with the consent of Brisbane City Council, to erect a building for use for residential purposes; or (b) as part of a new Plan submitted through the Minister, under section 4. for the approval of the Governor in Council include the prescribed allotment in a zone in which it is unlawful, or lawful only with the consent of the Council , to erect a building for use for residential purposes. In each case Brisbane City Council shall give notice to the Minister that it has taken the action referred to in paragraph (a) or, as the case may be , paragraph (b), for the purposes of this section. (3) The Governor in Council shall not- (a) approve an amendment to the Plan pursuant to an application made under paragraph ( a) of subsection (2); or (b) approve a new Plan containing a provision included pursuant to paragraph ( b) of subsection (2), unless he is satisfied that the prescribed allotment does not have access or does not have available to serve it such facilities as

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1371 are ordinarily required by Brisbane City Council in approving the subdivision of similar land for residential purposes. (4) Without derogation of the provisions of section 17, where the Governor in Council- (a) approves an amendment to the Plan pursuant to an application made under paragraph (a) of subsection (2); or (b) approves a new Plan containing a provision included pursuant to paragraph (b) of subsection (2), the provisions of section 13 shall not apply to any person whose estate or interest in a prescribed allotment is injuriously affected by the coming into operation of the amendment, or provision, as the case may be, or by a prohibition or restriction imposed thereby. (5) The provisions of subsection (4) shall not apply- (a) in the case where a person has been injuriously affected by the coming into operation of an amendment to the Plan, unless Brisbane City Council has complied with advertisement requirements in accordance with section 6 (2); or (b) in the case where a person has been injuriously affected by the coming into operation of a provision of a new Plan, unless Brisbane City Council has complied with the advertisement requirements of section 4 (6), within 12 months of the commencement of section 31 of the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985. 22G. Sale of land specified in section 22F. (1) Where, after commencement of section 31 of the Local Government and Cityof Brisbane Town Planning Acts Amendment Act 1985. a person sells a prescribed allotment that may, in accordance with section 22F, be included in a zone in which it is unlawful, or lawful only with the consent of Brisbane City Council, to erect a building for use for residential purposes so that the provisions of section 13 will not be applicable to the purchaser. the seller or his agent shall give to the purchaser or his agent a statement in writing in compliance with the requirements of this section. This subsection applies in respect of a sale referred to herein whether it takes place before or after Brisbane City Council decides to take action, or takes action, in accordance with paragraph (a) or (b) of section 22F (2).

1372 Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 (2) A statement in writing under this section shall- (a) clearly identify the allotment to which the statement relates, (b) state the names and addresses respectively of the purchaser and seller: (c) state clearly that the allotment may be rezoned, without compensation being payable by Brisbane City Council. so that it will be unlawful or lawful only with the consent of Brisbane City Council to erect a building for use for residential purposes; (d) state the date on which the statement is given; and (e) be signed by. or on behalf of. the seller, and shall not contain any written, typewritten or printed matter whatsoever except the letterhead, if any, of the seller or his agent. giving it. (3) The statement in writing shall be given to the purchaser or his agent before the purchaser signs any contract. agreement or other document whatsoever legally binding or intended to legally bind the purchaser in respect of the sale. (4) If in respect of the sale of the prescribed allotment a statement in writing is not given to the purchaser or his agent in accordance with this section. the purchaser may at his option avoid the contract. agreement or other document entered into by him in respect of that sale by notice in writing given in accordance with subsection (5). (5) A notice of avoidance referred to in subsection (4) shall be effectual for its purpose only if- (a) it is given to the seller or his agent- within six months after the contract, agreement or other document is entered into; and at a time (whether before or after Brisbane City Council has taken action in accordance with paragraph (a) or (b) of section 22F (2)) when the prescribed allotment may be rezoned, without compensation being payable by Brisbane City Council, pursuant to section 22F or at a time after the prescribed allotment has been so rezoned; and (b) the purchaser is materially prejudiced by his not having been given a statement in writing in compliance with the requirements of this section. Without limiting the circumstances in which a purchaser may be materially prejudiced, where in breach of subsection (1) a purchaser is not given any statement in writing at all before

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1373 he signs a contract, agreement or other document such as is referred to in subsection (3), he shall be presumed conclusively to be thereby materially prejudiced if he entered into the purchase of the prescribed allotment in question for use by himself or another for residential purposes whether upon that purchase or upon a resale of the prescribed allotment. (6) Upon the avoidance of a contract, agreement or other document pursuant to this section, the seller and, in a case where the sale was effected through an agent, the agent shall be liable at law, jointly and severally, for the repayment to the purchaser of all moneys paid by him under the contract, agreement ,or other document and the purchaser shall be entitled to recover those moneys by action in a court of competent jurisdiction as for a debt due and owing to him. (7) Where pursuant to this section a purchaser avoids a contract, agreement or other document entered into by him in connexion with a sale to which this section applies after the assurance to him of title to the estate in the allotment purchased by him, then that purchaser shall, subject to the tender to him of repayment in full as prescribed by subsection (6), execute such instruments as, being necessary to reassure that title to the seller or his nominee, are presented to him for execution by or on behalf of the seller and deliver up to the seller or his nominee any relevant instrument of title in his possession or under his control, but the purchaser shall not be liable for any costs or expenses in respect of the reassurance of title. (8) Any covenant, agreement or condition expressed or implied in any contract, agreement or other document legally binding, or intended to legally bind, the purchaser in respect of a sale to which this section applies, or in a separate document, whereby it is agreed between the seller and the purchaser that this section or a provision thereof shall not apply in respect of the sale, or shall apply subject to exceptions, limitations, restrictions or otherwise affecting or prejudicing the rights and remedies had by the purchaser under this section, shall be absolutely void and of no effect whatsoever. (9) In any civil proceedings in which it is material to prove that- (a) a statement in writing was given in accordance with this section; (b) a purchaser is materially prejudiced by a breach of subsection (1); or (c) a purchase of a prescribed allotment was entered into for use for residential purposes, the onus of proving the fact in question shall lie upon the party who relies on it. 4<

1374 Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 (10) A notice or statement in writing (hereinafter in this section referred to as a "notice") required or authorised to be given by this section to any person may be given to that person- (a) by delivering the notice to him personally; (b) by leaving the notice for him at his usual or last known place of business or residence; (c) by sending the notice to him by registered post; (d) in the case of a corporate person by leaving the notice at or sending the notice to its registered office or principal place of business. (11) A term used in this section and in section 22F has the same meaning as it has in that section, unless the contrary intention appears.". 32. Amendment of s. 24. Offences . Section 24 of the Principal Act is amended by inserting after the first paragraph the following paragraph:- " °A person who, having been convicted of a continuing offence, continues the offence may be prosecuted from time to time in respect thereof.". 33. New s. 24B. The Principal Act is amended by inserting after section 24.A the following section:- "24B. Restraining orders. (I) Upon the hearing of a complaint for a contravention of or failure to comply with any provision of the Plan the court that hears the complaint may make a restraining order on the defendant in addition to or in lieu of any penalty it is authorized to impose, if it is satisfied that the contravention or failure- (a) was a continuation of an offence of which the defendant was previously convicted; or (b) was of the same or a similar character or carried out in the prosecution of the same purpose as a contravention of or failure to comply with any provision of the Plan of which the defendant was previously convicted. (2) A restraining order- (a) may direct the defendant to cease any activity that is a contravention of or a failure to comply with a provision of the Plan; (b) may direct the defendant to do any act or thing required to comply with or to cease a contravention of a provision of the Plan; (c) may be in such terms as to the court appear apt to secure compliance with the Plan; and (d) may limit the time within which any of its requirements are to be complied with;

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985, No. 88 1375 (3) A person on whom a restraining order is made who fails to comply with the order in every respect commits an offence against this Act and is liable to a penalty not exceeding $10 000 and to a penalty not exceeding $500 for each day on which the failure to comply is continued. (4) In this section the term "court" means a magistrates court constituted in accordance with the Justices Act 1886-1985.". 34. Repeal of and new s. 31. The Principal Act is amended by repealing section 31 and substituting the following section:- "31. Costs. (1) The Court may make such order as it thinks fit as to the costs of any proceedings before it, including allowances to witnesses attending for the purpose of giving evidence at the hearing. Any such order may be made an order of the District Court and enforced accordingly. (2) Where the Court has jurisdiction under this Act or any other Act to award costs to or in favour of or amongst any party or parties to any proceeding or matter before the Court, the Court may in its discretion order that such costs shall be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court, and in every such case it shall be within the discretion of the taxing officer to decide the proper scale to be adopted by him in the taxation of such costs.".