Planning Legislation Amendment Act 1999 (WA)
WESTERN AUSTRALIA
PLANNING LEGISLATION
AMENDMENT ACT 1999
No. 59 of 1999
AN ACT to amend the Town Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985.
[Assented to 10 January 2000]
The Parliament of Western Australia enacts as follows:
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PART 1 — PRELIMINARY
Short title
1. This Act may be cited as the Planning Legislation
Amendment Act 1999.
Commencement
2. The provisions of this Act come into operation on such day as fixed by proclamation.
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PART 2 — AMENDMENTS TO TOWN PLANNING AND
DEVELOPMENT ACT 1928
Principal Act
3. In this Part the Town Planning and Development Act 1928* is referred to as the principal Act.
[* Reprinted as at 21 February 1996.
For subsequent amendments see 1996 Index to Legislation of Western Australia, pp. 230-1, and Act No. 57 of 1997.]
Section 2 amended
4. Section 2 (1) of the principal Act is amended by inserting
after the definition of ‘‘responsible authority’’ the following
definition —
| ‘‘ | ‘‘subdivision’’ includes amalgamation; ’’. |
Section 20 amended
5. Section 20 (2) of the principal Act is repealed and the
following subsection is substituted —
‘‘
The Registrar of Titles shall not create or register a
certificate of title under the Transfer of Land Act 1893 for
land the subject of a plan of subdivision unless —
(2)
| (a) | in the case of a plan of subdivision to which this Act applies, the diagram or plan of survey of the subdivision of that land submitted to the Commission under section 20AA; or |
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| (b) | in the case of a plan of subdivision to which this Act does not apply, the application for title concerned, |
has been endorsed with the approval of the Commission.
’’.
Section 20AA inserted
6. After section 20 of the principal Act the following section is
inserted —
‘‘
Endorsement of approval upon diagram or plan of survey
20AA. (1) A person to whom approval of a plan of subdivision has been given may, within 3 years of the date on which the Commission approved the plan of subdivision —
| (a) | submittotheCommissionintheprescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and |
| (b) | request the Commission to approve the diagram or plan of survey of the subdivision. |
| (2) | If the Commission is satisfied that — |
| (a) | the diagram or plan of survey is in accordance with the plan of subdivision approved under section 20 (1) (a); and |
| (b) | if that approval given was subject to conditions, the conditions have been complied with, |
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the Commission shall endorse its approval on the diagram
or plan of survey.
If, at the expiration of 3 years from the date on which the Commission approved a plan of subdivision under section 20 (1) (a), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect.
(3)
’’.
Section 26 amended
7. (1) Section 26 (1) of the principal Act is amended by
inserting after paragraph (ac) the following paragraph —
‘‘
(ad) A person given approval of a plan of subdivision who is aggrieved by the Commission’s decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 20AA may appeal to the Minister from the decision of the Commission.
’’.
(2) After section 26 (1) of the principal Act the following
subsection is inserted —
‘‘
(2) If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the approval of the plan of subdivision under section 20 (1) (a) has not been complied with, an appeal under subsection (1) (ad) of this section may include an appeal from that condition.
’’.
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Section 33B inserted
8. After section 33A of the principal Act the following section is
inserted —
‘‘
Local government fees and charges
33B. (1) In this section —
‘‘planning matter’’ means any matter arising under this Act in relation to —
| (a) | a town planning scheme; |
| (b) | subdivision; or |
| (c) | approval for development. |
| (2) | The Governor may make regulations providing for, |
or in respect of —
| (a) | the services in respect of planning matters for which fees or charges may be imposed by a local government; |
| (b) | the fees or charges that may be imposed for the provision of those services, and the recovery of those fees and charges; |
| (c) | any formula, index or other base to be used for the purposes of calculating or ascertaining any fee or charge for the provision of those services; |
| (d) | the payment or recovery of costs and expenses incurred by the local government in providing a service in relation to a planning matter, including costs and expenses incurred by the local government in obtaining specialist or expert advice where, in the opinion of the local government, the advice was necessary for the purpose of providing the service; and |
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| (e) | the liability of persons for payment to the local government in respect of provision of services and related costs and expenses. |
| (3) | A local government shall not — |
| (a) | imposeanyfeeorchargeforprovisionofa service in relation to a planning matter; or |
| (b) | require payment for costs and expenses incurred by the local government in providing a service in relation to a planning matter, |
unless the service is prescribed under subsection (2) (a).
A local government shall not impose a fee or charge for a service in relation to a planning matter that is inconsistent with a fee or charge prescribed under this section.
(4)
’’.
Section 37 amended
9. Section 37 of the principal Act is amended in the definition
of ‘‘appeal’’ —
| (a) | by deleting ‘‘and’’ after paragraph (d); and |
| (b) | byinsertingafterparagraph(e)thefollowing paragraphs — |
‘‘
| (f) | an appeal under section 25 of the Western Australian Planning Commission Act 1985; and |
| (g) | an appeal under section 37E of the Western Australian Planning Commission Act 1985; |
’’.
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PART 3 — AMENDMENTS TO WESTERN AUSTRALIAN
PLANNING COMMISSION ACT 1985
Principal Act
10. In this Part the Western Australian Planning Commission Act 1985* is referred to as the principal Act.
[* Act No. 91 of 1985.
For subsequent amendments, see 1996 Index to Legislation of Western Australia, Table 1, p. 248 and Act No. 57 of 1997.]
Section 3 amended
11. Section 3 of the principal Act is amended by inserting in
their appropriate alphabetical positions the following
definitions —
‘‘
‘‘Heritage Council’’ means the Heritage Council of Western Australia established under the Heritage of Western Australia Act 1990;
‘‘regional improvement plan’’ means regional improvement plan referred to in section 37I;
‘‘regional order’’ means regional interim development order made under section 21 (1);
‘‘regional order area’’ means area affected by, and specified in, a regional order;
‘‘regional planning control area’’ means regional planning control area declared under section 37B;
’’.
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Division heading deleted
12. Part II of the principal Act is amended before section 4
by deleting ‘‘Division 1 — Western Australian Planning
Commission.’’.
Section 18 amended
13. (1) Section 18 (1) of the principal Act is amended by
inserting after paragraph (d) the following paragraph —
‘‘
| (da) | in relation to any part of the State to which a regional planning scheme applies — | |||||||
|
’’.
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Section 18 of the principal Act is amended by inserting after subsection (1b) the following subsections —
(2)
‘‘
A regional planning scheme may be prepared for all or any of the objects, purposes, provisions, powers or works referred to in section 6 of the Town Planning and Development Act 1928 and may provide for planning, replanning or reconstructing the whole or any part of its region.
(1ba)
(1bb) If a regional planning scheme has effect under section 33 (5) of the Metropolitan Scheme Act as read with subsections (1a) and (1b) —
| (a) | a town planning scheme made under the Town Planning and Development Act 1928 by a local government shall not be approved by the Minister to whom the administration of that Act is for the time being committed by the Governor; and |
| (b) | local laws which if made would affect or be likely to affect the regional planning scheme shall not be made by a local government, |
unless the provisions of the town planning scheme or local laws, as the case requires, are in accordance with and consistent with the regional planning scheme.
’’.
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Parts IIA, IIB, IIC and IID inserted
14. After section 20 of the principal Act the following Parts are
inserted —
‘‘
PART IIA — REGIONAL INTERIM DEVELOPMENT
Commission may make and administer regional
interim development orders
| 21. | (1) | Subject to this Part, the Commission may, if — |
| (a) | theCommissionisoftheopinionthatthe development of land within the part of the State to which a regional planning scheme is to apply might materially affect the preparation or implementation of the regional planning scheme; | |
| (b) | theCommissionhascompliedwithsubsection (2); and | |
| (c) | the Minister approves, |
make such regional interim development orders as are necessary for regulating, restricting or prohibiting that development.
(2) Before making a regional order the Commission
shall —
| (a) | inform each local government of a district which lies within or partly within the area to which the proposed regional order will apply of the proposal; |
| (b) | invitethatlocalgovernmenttomake submissions on the proposal within 28 days; and |
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| (c) | providetheMinisterwithacopyofany submission received under paragraph (b). |
| (3) | A regional order — |
| (a) | may be made by the Commission at any time — | |||
| ||||
| (b) | istospecifythelandaffectedbytheregional order. |
On the making of a regional order, the Commission shall cause to be published once in the Gazette and 3 times in a daily newspaper circulating in the part of the State to which the regional order applies a notice —
(4)
| (a) | containing a summary of the regional order; and |
| (b) | stating that copies of the regional order will be made available by the Commission for inspection by any person free of charge at the offices of the Commission and of the local government or local governments within the area affected by the regional order. |
The Commission shall, at the same time or before acting under subsection (4), publish in the Gazette —
(5)
| (a) | asummaryoftherelevantresolutionmade under section 18 (1a); and |
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| (b) | a description of the part of the State to which the relevant proposed regional planning scheme is to apply. |
(6) The Commission shall administer each regional
order.
Duration of regional orders
| 22. | (1) | Subject to subsection (2), a regional order — |
| (a) | comes into operation on the day of publication of the relevant notice in the Gazette under section 21 (4); and | |
| (b) | has effect as though its provisions were enacted in this Act. |
| (2) | A regional order ceases to have effect in its regional |
order area —
| (a) | whentherelevantregionalplanningscheme comes into operation in respect of that regional order area; |
| (b) | whentheregionalorderisrevokedunder section 23; or |
| (c) | on the expiry of 3 years from the day on which the regional order first applied to that regional order area, |
whichever is the sooner, but the Commission may, by notice published in the Gazette before the regional order ceases to have effect, extend its operation for a further period not exceeding 12 months and may, if the Commission thinks fit, exercise that power of extension more than once.
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Revocation and amendment of regional orders
23. (1) The Commission may, with the approval of the
Minister, at any time by order published —
| (a) | once in the Gazette; and |
| (b) | 3 times in a daily newspaper circulating in the part of the State to which the relevant regional order applies, |
revoke a regional order.
(2) An order made under subsection (1) comes into operation on the day after the day on which it is published in the Gazette.
(3) The Commission may, with the approval of the Minister, at any time make an order amending a regional order and sections 21 (4) and 22 (1) apply with any necessary modifications to such an order as if that order were a regional order.
Contents and effect of regional orders
24. (1)Aregionalordermay—
|
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| (d) | in the case of land which is in the regional order area and to which the Heritage of Western Australia Act 1990 applies, require the Commission — | |||||
| ||||||
| (e) | provide that the permission of the Commission for the carrying out of any development referred to in the regional order may, if granted, be granted subject to such conditions as the Commission considers necessary to impose, including, without limiting the generality of those conditions — | |||||
| ||||||
| (f) | provide that the Commission may refuse to grant to an applicant its permission for carrying out development of a specified class in a specified part of the regional order area; |
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| (g) | subjecttosubsection(4),suspend,vary, supplement or supersede any of the provisions of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960 in the regional order area. |
(2) Before granting an application for permission to carry out development referred to in paragraph (a), the Commission shall —
| (a) | refer that application to the local government of the district in which the relevant land lies; |
| (b) | invite the local government to make submissions on the application within 42 days; and |
| (c) | have regard to any submission received under paragraph (b). |
Despite section 28, nothing in a regional order in force in respect of a regional order area empowers the Commission to grant to an applicant permission to carry out a development if that development contravenes a provision of the town planning scheme operating in the regional order area.
(3)
| (4) | Nothing in a regional order prevents — |
| (a) | thecontinuanceoftheuseofanylandor building for the purposes for which the land or building was being used immediately prior to the coming into operation of the regional order; or |
| (b) | the carrying out of any development for which, immediately prior to the coming into operation of the regional order, a permit or permits, if any, required under the Town Planning and Development Act 1928 or any other Act |
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authorizing that development to be carried out
had been obtained and were current.
| (5) | In subsection (1) — |
‘‘specified’’ means specified in the regional order
concerned.
Appeals against refusals of permission, etc.
25. (1) Subject to subsection (3), a person who is
aggrieved by —
| (a) | the refusal of permission; or |
| (b) | aconditionsubjecttowhichpermissionis granted, |
under a regional order as read with section 24 (1) may within 60 days after the refusal is communicated, or permission is granted, to that person appeal against that refusal or condition under Part V of the Town Planning and Development Act 1928.
(2) Subject to subsection (3), if the Commission does
not grant or refuse permission —
| (a) | within a period of 60 days after the receipt by the Commission of an application to carry out any development referred to in this Part; or |
| (b) | inthecaseoflandinrelationtowhichthe Commission has referred such an application to the Heritage Council under section 24 (1) (d) and has notified the applicant for permission of that referral, within a period of 60 days after that notification, |
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the Commission shall on the expiry of that period be deemed to have refused that application and the applicant may within 60 days after that expiry appeal against that deemed refusal under Part V of the Town Planning and Development Act 1928.
An appeal shall not be made or heard under this
section in respect of any development that contravenes a
provision of —
(3)
| (a) | a town planning scheme; |
| (b) | a local law that is not superseded or suspended by the regional order; or |
| (c) | an Order made under Part 6, or Order in Council made under section 80, of the Heritage of Western Australia Act 1990. |
Contravention of regional orders
26. (1)Apersonshallnot—
|
(i) the regional order; or
(ii) anyconditionimposedinrespectofthat development by the Commission under the regional order as read with section 24 (1).
| Penalty: | $50 000, and a daily penalty of $5 000. |
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(2) This section does not prejudice or affect sections
37J or 37K.
Non-conforming work or development
27. (1)If—
|
the Commission may submit the matter to the Minister for
determination by the Governor.
The Governor may, in respect of a matter submitted under subsection (1) for determination —
(2)
| (a) | prohibitabsolutelyorforsuchperiodasthe Governor thinks fit; or |
| (b) | restrict, regulate or permit, |
the carrying out of the work or undertaking or any part of it
subject to such conditions as the Governor specifies.
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Regional orders to prevail over inconsistent town planning schemes and local laws
28. If there is an inconsistency between —
|
that regional order prevails over that town planning scheme
or local law to the extent of that inconsistency.
Limits on compensation payable for injurious
affection, etc. as result of operation of regional order
29. (1)
Compensation for injurious affection to any land within a regional order area or for loss arising from any other cause is not payable under this Act as a result of the operation of the relevant regional order unless —
| (a) | the Commission — | |||
|
on the ground that the proposed regional planning scheme for the regional order area is to include that land within a reservation for public purposes; and
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| (b) | anappeal,iflawfullymadebytheclaimant under section 25, has been disallowed wholly or in part. |
(2) When compensation of the kind referred to in
subsection (1) is claimed —
| (a) | thatcompensationshallbedeterminedby arbitration under the Commercial Arbitration Act 1985 or by some other method agreed by the parties; or | |||
| (b) | the Commission may, and shall if the claimant so requests, purchase any land injuriously affected at a price not exceeding the value of that land at the time of — | |||
|
without regard to any increase in value attributable wholly or in part to the proposed regional planning scheme for the regional order area in which the land is situated.
PART IIB — APPLICATION OF SECTIONS 11 AND 12 OF TOWN PLANNING AND DEVELOPMENT
ACT 1928 TO REGIONAL PLANNING SCHEMES
Construction of sections 11 and 12 of Town Planning and Development Act 1928 in relation to regional planning schemes
30. The provisions of sections 11 and 12 of the Town Planning and Development Act 1928 apply, with such modifications as are necessary, to the provisions of a
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regional planning scheme and for that purpose the former
provisions shall be read and construed as if —
| (a) | the Commission were the ‘‘responsible authority’’ or ‘‘local government’’ wherever referred to in those sections; and |
| (b) | the passage, ‘‘varied, amplified or revoked by the Commission’’ were substituted for the passage ‘‘altered or revoked by an order of the Minister under this Act’’ in section 11 (3) of that Act; and |
| (c) | those provisions included section 33 (1), (2), (3) and (4) and section 34. |
Claims for injurious affection
31. (1) A regional planning scheme may provide that when compensation for injurious affection is claimed as a result of the operation of the provisions of section 12 (2a) (b) (i) or (ii) of the Town Planning and Development Act 1928 the Commission may at its option elect to acquire the land so affected instead of paying compensation.
The Commission shall, within 3 months of the claim
for injurious affection being made, by notice in writing
given to the claimant —
(2)
| (a) | elect to acquire the land; or |
| (b) | advisethatitdoesnotintendtoacquirethe land. |
Price of land acquired by Commission in absence of agreement
32. (1)
When the Commission elects to acquire the land as provided in section 31, if the Commission and the owner
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of the land are unable to agree as to the price to be paid for the land by the Commission, the price at which the land may be acquired by the Commission shall be the value of the land as determined in accordance with subsection (2).
The value of the land referred to in subsection (1) shall be the value of the land on the date the Commission elects to acquire the land under that subsection, and that value shall be determined —
(2)
| (a) | byarbitrationinaccordancewiththe Commercial Arbitration Act 1985; or | |||
| (b) | on the application of the owner of the land, made in the prescribed manner — | |||
|
or
| (c) | bysomeothermethodagreeduponbythe Commission and the owner of the land, |
and that value shall be determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the regional planning scheme.
(3) For the purposes of subsection (2) (b), the prescribed amount is $25 000 or, if a greater amount is prescribed for the purposes of this paragraph, the greater amount.
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Compensation for injurious affection to land reserved for public purpose
33. (1)
Subject to subsection (3), when under a regional planning scheme any land has been reserved for a public purpose, no compensation is payable by the Commission for injurious affection to that land alleged to be due to or arising out of such reservation until —
| (a) | the land is first sold following the date of the reservation; or |
| (b) | theCommissionrefusesanapplicationmade under the regional planning scheme for permission to carry out development on the land or grants permission to carry out development on the land subject to conditions that are unacceptable to the applicant. |
Compensation for injurious affection to any land is payable only once under subsection (1) and is so payable —
(2)
| (a) | underparagraph(a)ofthatsubsectiontothe person who was the owner of the land at the date of reservation; or |
| (b) | underparagraph(b)ofthatsubsectiontothe person who was the owner of the land at the date of application, |
referred to in that paragraph, unless after the payment of that compensation further injurious affection to the land results from —
| (c) | an alteration of the existing reservation thereof; or |
| (d) | the imposition of another reservation thereon. |
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(3) Before compensation is payable under
subsection (1) —
| (a) | whenthelandissold,thepersonlawfully appointed to determine the amount of the compensation shall be satisfied — | |||||
|
or
| (b) | whentheCommissionrefusesanapplication made under the regional planning scheme for permission to carry out development on the land or grants permission to carry out development on the land subject to conditions that are unacceptable to the applicant, the person lawfully appointed to determine the amount of compensation shall be satisfied that the application was made in good faith. |
A claim for compensation under subsection (1) shall be made at any time within 6 months after the land is sold or the application for permission to carry out development on the land is refused or the permission is granted subject to conditions that are unacceptable to the applicant.
(4)
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Amount of compensation
34. (1) Subject to this Part, the compensation payable for injurious affection due to or arising out of the land being reserved under a regional planning scheme for a public purpose, where no part of the land is purchased or acquired by the Commission, shall not exceed the difference between —
| (a) | thevalueofthelandassoaffectedbythe existence of such reservation; and |
| (b) | the value of the land as not so affected. |
The values referred to in subsection (1) (a) and (b) shall be assessed as at the date on which —
(2)
| (a) | thelandissoldasreferredtoin section 33 (1) (a); |
| (b) | theapplicationforpermissiontocarryout development on the land is refused; or |
| (c) | the permission is granted subject to conditions that are unacceptable to the applicant. |
Caveat may be lodged if compensation paid
35. (1)
When compensation for injurious affection to any land has been paid under section 33 (1), the Commission may lodge with the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, a caveat against the land specifying —
| (a) | the date of payment of compensation; |
| (b) | the amount of compensation so paid; and |
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| (c) | theproportion(expressedasapercentage), which the compensation bears to the unaffected value of the land as assessed under section 34 (2). |
On receipt of the caveat from the Commission, the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, shall register the caveat.
(2)
Commission may recover compensation if reservation
revoked or reduced
36. (1)When—
|
the Commission is entitled to recover from the owner of the land at the date of the revocation or reduction of the reservation an amount (‘‘the refund’’) which is determined by calculating the relevant proportion (as determined under subsections (4) to (7)) of the value of the land as at the date on which the refund becomes payable under subsection (2).
The refund is not payable by the owner of the land until the land is first sold or subdivided following the date of the revocation or reduction referred to in subsection (1) (b) unless otherwise agreed by the owner and the Commission.
(2)
If the land is owned by 2 or more people they are jointly and severally liable to pay the refund.
(3)
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(4) When the reservation has been revoked the relevant proportion for the purposes of subsection (1) is the same as the proportion referred to in section 35 (1) (c) in relation to the original compensation.
When the area of the reservation has been reduced,
the relevant proportion for the purposes of subsection (1)
shall be determined as follows —
(5)
| (a) | a notional amount of compensation is determined under sections 33 (1) and 34 as if — | |||||
| ||||||
| (b) | the proportion (expressed as a percentage) which that notional amount of compensation bears to the current value of the land (unaffected by the existence of the reservation) is calculated; and | |||||
| (c) | therelevantproportionisthendeterminedby deducting the proportion calculated under paragraph (b) from the proportion referred to in section 35 (1) (c) in relation to the original compensation. |
Example: Original compensation
| proportion | 25% |
less
Notional compensation
| proportion | 15% |
| Relevant proportion = | 10% |
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(6) Despite subsection (4), when the reservation is revoked after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion is the same as the notional compensation proportion calculated under subsection (5) (a) and (b) in respect of the previous reduction.
(7) Despite subsection (5), when the reservation is reduced after an amount has been recovered under subsection (2) in respect of a previous reduction of the reservation, the relevant proportion shall be determined as follows —
| (a) | a notional compensation proportion is calculated under subsection (5) (a) and (b) in respect of the subsequent reduction; and |
| (b) | therelevantproportionisthendeterminedby deducting the proportion referred to in paragraph (a) from the notional compensation proportion calculated under subsection (5) (a) and (b) in respect of the previous reduction. |
Example: Notional compensation
proportion calculated under
subsection (5) (a) and (b)
| on previous reduction | 15% |
less
Notional compensation
proportion calculated
under subsection (5)
(a) and (b) on
subsequent reduction
8%
Relevant proportion
on subsequent
| reduction | = | 7% |
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For the purposes of subsections (1) and (5) (b) the value of the land shall be determined by one of the methods set out in section 34 (2) (a), (b) or (c), but that value is to be determined without regard to any increase in value attributable to factors unrelated to the reservation or to its revocation or reduction.
(8)
(9) When the Commission has an entitlement to recover an amount under subsection (1) it has an interest in the land and may lodge with the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, a caveat against the land giving notice of the existence of that interest, and may withdraw any caveat so lodged.
On receipt of the caveat from the Commission, the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, shall register the caveat.
(10)
Before selling or subdividing land against which a caveat is lodged under subsection (9), the owner of the land shall give notice in writing to the Commission of the intention of the owner to sell or subdivide the land.
(11)
When a caveat is lodged under subsection (9) the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, shall not register a transfer of the land without the consent of the Commission.
(12)
Valuation by Board of Valuers
37. (1)Inthissection—
‘‘Board’’ means the Board of Valuers established under section 36B of the Metropolitan Scheme Act.
(2) The owner of land that is subjected to injurious
affection due to, or arising out of, the land being reserved
under a regional planning scheme for a public purpose who
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gives notice of his or her intention to sell the land and claim compensation shall, unless the Commission waives the requirement, apply to the Board for a valuation of the land as not so affected and the Board shall make that valuation.
The provisions of section 36C of the Metropolitan Scheme Act and the regulations made under that section apply, with such modifications as are necessary, to an application and valuation under subsection (2).
(3)
PART IIC — REGIONAL PLANNING CONTROL
AREAS
Effect of Part IIC
| 37A. | (1) | This Part shall prevail over anything in — |
| (a) | any other Part; |
| (b) | any town planning scheme that has effect under section 7 of the Town Planning and Development Act 1928; |
| (c) | a regional planning scheme; or |
| (d) | the Town Planning and Development Act 1928, |
to the extent of any inconsistency therewith.
| (2) | Nothing in this Part affects — |
| (a) | thecontinueduseofanylandinaregional planning control area for the purpose for which it was lawfully being used; or |
| (b) | thecontinuationandcompletionofthe development of any land in a regional planning |
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control area, including the erection, construction, alteration or carrying out, as the case requires, of any building, excavation or other works on that land, which development was lawfully being carried out,
immediately before the declaration of the regional planning
control area.
(3) This Part and the operation of any approval of development granted under this Part shall have effect subject to section 78 of the Heritage of Western Australia Act 1990.
Declaration of regional planning control areas
37B. (1) If the Commission considers that any land situated in a region to which a regional planning scheme applies may be required for one or more of the purposes specified in Schedule 2, the Commission may by notice published in the Gazette and with the approval of the Minister declare that land to be a regional planning control area.
(2) The Commission may by notice published in the Gazette and with the approval of the Minister amend or revoke a declaration made under subsection (1).
| (3) | A declaration made under subsection (1) remains in |
force until —
| (a) | the expiry of such period, not exceeding 5 years from the date on which the notice by which that declaration was so made was published in the Gazette, as is specified in that notice; or |
| (b) | revoked under subsection (2), |
whichever is the sooner.
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When any land is comprised within an area which the Commission considers should become a regional planning control area and is land to which the Heritage of Western Australia Act 1990 applies, the Commission shall satisfy the Minister before seeking approval to the declaration of that land as a regional planning control area that full disclosure has been made to, and consultations concluded with, the Heritage Council as to the likely effect of the declaration as regards places to which that Act applies.
(4)
No development in regional planning control areas without prior approval
37C. A person shall not commence and carry out
development in a regional planning control area except —
| (a) | withthepriorapprovalofthatdevelopment obtained under section 37D; and |
| (b) | inamannerwhichisinconformitywiththe approval referred to in paragraph (a) and in accordance with the conditions, if any, subject to which that approval was given. |
Penalty: $50 000 and, in the case of a continuing offence, a further fine of $5 000 for each day during which that offence continues.
Applications for approval of development in regional planning control areas
37D. (1) A person who wishes to commence and carry out development in a regional planning control area shall apply in the prescribed form to the local government in the district of which the regional planning control area is situated for approval of that development and submit to
Planning Legislation Amendment Act 1999
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that local government such plans and other information as
that local government may reasonably require.
A local government to which an application is made under subsection (1) shall, within 30 days of receiving the application, forward the application, together with its recommendation on the application, to the Commission for determination.
(2)
After receiving an application and recommendation
forwarded to it under subsection (2), the Commission
may —
(3)
| (a) | consultwithanyauthoritythatinthe circumstances it thinks appropriate; and | |||||
| (b) | having regard to — | |||||
| ||||||
| approve, subject to such conditions as it thinks fit, or refuse to approve that application. |
(4) If the Commission approves an application forwarded to it under subsection (2) and the development concerned is carried out in a manner which is not in conformity with that approval, or any conditions subject to
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which that approval was given are not complied with, the Commission may revoke that approval, but this subsection does not prevent proceedings for an offence against section 37C in respect of that carrying out or non-compliance alleged to have been committed during the subsistence of that approval.
The Commission shall issue in the prescribed form
to the applicant its decision on an application forwarded to
it under subsection (2).
(5)
(6) If the Commission has not within 60 days of receiving an application forwarded to it under subsection (2) issued its decision on that application to the applicant, that application shall be deemed to have been refused.
Appeals
37E. (1) An applicant whose application has under
section 37D been —
| (a) | approvedsubjecttoconditionswhichare unacceptable to the applicant; or |
(b) refused,
may, except when that approval or refusal —
| (c) | isinaccordancewithanyoperativetown planning scheme or with the relevant regional planning scheme, if any; or |
| (d) | relates to land which is reserved under any such regional planning scheme for a public purpose, |
appeal against that approval or refusal under Part V of the
Town Planning and Development Act 1928.
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An appeal under subsection (1) in relation to any condition which is imposed in consequence of advice furnished by the Heritage Council or by the operation of section 78 of the Heritage of Western Australia Act 1990 shall be referred to the Heritage Council for advice, and section 53 (2) of the Town Planning and Development Act 1928 applies in relation to the appeal referred.
(2)
PART IID — MISCELLANEOUS POWERS OF
COMMISSION AND MINISTER
Commission has powers of responsible authority
37F. Subject to this Act, in relation to a regional planning scheme the Commission has all the powers, rights, duties and authority conferred or imposed on a responsible authority under the Town Planning and Development Act 1928 in relation to a Scheme within the meaning of that Act.
Power of Commission to acquire land to which proposed regional planning scheme or amendment is to apply
37G. The Commission may, if it considers that any land in the part of the State to which a proposed regional planning scheme or amendment to a regional planning scheme is to apply is likely to be reserved for public purposes under that regional planning scheme or amendment, acquire that land by agreement with its owner.
Power of Commission to dispose of land
37H. (1) The Commission shall hold for the purposes of a regional planning scheme any land acquired by it under
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this Act and may, subject to subsections (2) and (3), dispose
of or alienate that land —
| (a) | for or in furtherance of the provisions or likely provisions of the regional planning scheme; or |
| (b) | ifthatlandisnolongerrequiredbythe Commission. |
Subject to subsection (3), the Commission shall not, except with the consent of the Governor, dispose of or alienate any land compulsorily acquired by it other than for or in furtherance of the provisions or likely provisions of the relevant regional planning scheme.
(2)
In exercising a power to dispose of or alienate land conferred by this section, the Commission shall have regard to the general principle that in such cases land acquired by the Commission should, if in the opinion of the Minister it is reasonable and practicable to do so, be first offered for sale at a reasonable price determined by the Minister to the person from whom that land was acquired.
(3)
Powers of Commission in relation to regional improvement plans
37I. (1) When the Commission certifies in writing to the Minister that for the purpose of advancing the planning, development and use of any land within a part of the State to which a regional planning scheme applies —
| (a) | the land should be dealt with in all or any of the following ways, namely, planned, replanned, designed, redesigned, consolidated, resubdivided, c leared, developed, reconstructed or rehabilitated; or |
| (b) | provision should be made for the land to be used for such residential, commercial, industrial, |
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public, recreational, institutional, religious, charitable or other uses, buildings, works, improvements or facilities, or spaces therefor, as may be appropriate or necessary,
and recommends to the Minister that the land should be so dealt with or used for that purpose and made the subject of a regional improvement plan (a copy of which shall accompany the recommendation together with such supporting maps and texts as the Minister may require) the Minister shall, if he accepts the recommendation of the Commission, forward the recommendation as soon as practicable after such acceptance to the Governor.
If the Governor accepts the recommendation of the Commission, the Commission may while the relevant regional planning scheme has the force of law as provided in this Act, purchase or otherwise acquire any land included in the regional improvement plan by agreement with the owner thereof or in default of such agreement, the Commission may acquire the land compulsorily under the Land Administration Act 1997, as modified by this section.
(2)
| (3) | The Commission may — |
| (a) | amend a regional improvement plan by notice of amendment; or |
| (b) | revoke a regional improvement plan by a notice of revocation, |
and subsection (1) applies to a notice of amendment or revocation under paragraph (a) or (b) as if it were a regional improvement plan.
Subject to this section, the provisions of Parts 9 and 10 of the Land Administration Act 1997 apply to the taking of any land compulsorily under this section, with such modifications as circumstances require, and in so applying those provisions any reference to the Minister
(4)
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administering that Act shall be read as a reference to the
Minister.
(5) For the purpose of advancing the development of land in a region in accordance with a regional improvement plan referred to in subsection (1) the Commission, with the approval of the Governor, may —
| (a) | construct,repair,rehabilitateorimprove buildings, works, improvements or facilities on land acquired or held by it under this Act; | |||
| (b) | return, sell, lease, exchange or otherwise dispose of any buildings, works, improvements or facilities and the land appurtenant thereto and any land acquired by the Commission under this Act, to any person, or public authority upon such terms and conditions as the Commission, with the approval of the Governor, thinks fit; and particulars of any return, sale, lease, exchange or disposal to any person shall within one month of the Governor’s approval be notified by the Commission in the Gazette; | |||
| (c) | inrespectofthelandincludedinaregional improvement plan but not acquired or held by it under this Act, enter into an agreement with any owner of the land relating to — | |||
|
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(iii) thesale,purchase,exchange,surrender, vesting, allocation or other disposal of the land, the adjustment or alteration of the boundaries of the land, the pooling of the lands of several owners, the adjustment of rights between owners of the land or other persons interested in the land whether by payments of money or transfers or exchanges of land or otherwise, the valuation of the land and the provision of land for any public open space, public work as defined by the Public Works Act 1902 or any other public purpose;
(iv) thepayment,satisfactionorrecoveryof costs incurred in implementing the agreement; and
(v) such other acts, matters or things as are or may be necessary to give effect to the regional improvement plan;
| (d) | do any act, matter or thing for the purpose of carrying out any agreement entered into under paragraph (c). |
Nothing in this section shall be construed as taking away or in any way derogating from or diminishing any power otherwise conferred by this or any other Act upon the Commission or any other authority or body or person.
(6)
Power of Commission to direct removal, etc. of development contrary to regional order or regional planning scheme, etc.
37J. (1) The Commission or a local government exercising the powers of the Commission may by notice in writing served on the owner of any land situated in a
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regional order area or a part of the State to which a
regional planning scheme applies direct that owner —
| (a) | toceaseanydevelopmentbegun,continuedor carried out; or |
| (b) | toremove,pulldown,takeuporalterany building or work erected, |
on that land in contravention of the regional order or
regional planning scheme.
The Commission may by notice in writing served on the owner of any land situated in a regional planning control area direct the owner to cease any development carried out on that land in contravention of section 37C.
(2)
(3) The Commission or a local government exercising the powers of the Commission may, in a notice served under subsection (1) or (2) specify a time, being not less than 40 days after the service of that notice, within which the directions in the notice are to be complied with.
(4) The owner on whom a notice is served under subsection (1) or (2) may, within the period specified in the notice, appeal in the manner prescribed to the Minister against any direction in the notice.
(5) The Minister after considering an appeal under subsection (4) may confirm, vary or cancel the direction and the Minister may, where he confirms or varies the direction, by written notice, direct that the owner shall comply with the direction as so confirmed or varied, as the case requires, within such period, being not less than 40 days after the service of the notice, as is specified in the notice.
When the direction appealed against is confirmed or varied, the owner to whom the direction was given shall comply with it to the extent to which it is so confirmed or varied and within the time specified in the notice giving the direction.
(6)
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| (7) | When — |
| (a) | a notice is served under subsection (1) or (2) on an owner of any land and the owner does not — | |||
|
within the time specified in the notice; or
| (b) | on appeal by an owner of any land a direction specified in a notice served on the owner under subsection (1) or (2) is confirmed or varied under subsection (5) and the owner fails to carry out the direction as confirmed or varied under subsection (5) within the time specified by the Minister in the notice given under subsection (5), |
the Commission or local government, as the case requires,
may itself cause —
| (c) | the relevant development to be stopped; or |
| (d) | therelevantbuildingorworktoberemoved, pulled down, taken up or altered. |
Any expenses incurred by the Commission or a local
government under subsection (7) may be recovered from the
owner of the land on which —
(8)
| (a) | the relevant development was stopped; or |
| (b) | therelevantbuildingorworkwasremoved, pulled down, taken up or altered, |
as a debt due in a court of competent jurisdiction.
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Injunctions
37K. (1) Without prejudice to any proceedings for an
offence against this Act, when —
| (a) | a person contravenes a provision of this Act, a regional order or a regional planning scheme; or |
| (b) | the Commission or a local government exercising the powers delegated to it by the Commission grants any application for approval to commence or carry out development subject to conditions and the development is commenced, continued or completed contrary to or otherwise than in accordance with any condition imposed with respect to that development by the Commission or the local government under this Act, |
the Supreme Court may, on application by the Commission
or the local government, grant an injunction —
| (c) | iftheapplicationiswithrespecttoa contravention of this Act, a regional order or a regional planning scheme, restraining the person from engaging in any conduct, or doing any act, that constitutes or is likely to constitute a contravention of this Act, the regional order or the regional planning scheme; or | |
| (d) | iftheapplicationiswithrespecttothe commencement, continuation or completion of a development contrary to or otherwise than in accordance with any condition imposed by the Commission or the local government with respect to the development — | |
|
Planning Legislation Amendment Act 1999
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(ii) inthecaseinwhichthedevelopmentis completed, restraining the use of the development,
until the condition is complied with.
| (2) | An injunction granted under subsection (1) — |
| (a) | shall have effect for such period as is specified therein or until further order of the Court; and |
| (b) | may be varied or rescinded by the Court. |
Powers of Minister to ensure that environmental conditions are met
37L. (1) In this section —
‘‘assessed scheme’’ means regional planning scheme that is an assessed scheme within the meaning of the EP Act;
‘‘environmental condition’’ means condition agreed under section 48F of the EP Act or decided under section 48J of the EP Act;
‘‘EP Act’’ means Environmental Protection Act 1986;
‘‘Minister for the Environment’’ means Minister to whom the Governor has for the time being committed the administration of the EP Act;
‘‘pollution’’ has the same meaning as it has in the
EP Act.
(2) After receiving advice from the Minister for the
Environment under section 48H (4) of the EP Act the
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s. 14
Minister may exercise one or more of the powers set out in subsection (3) in relation to a development implementing an assessed scheme.
(3) For the purposes of subsection (2) the Minister
may —
| (a) | by order in writing served on the person who is undertaking the development, direct that person to stop doing so for such period, beginning immediately and lasting for not more than 24 hours, as is specified in that order; | |||
| (b) | causetheCommission,oralocalgovernment exercising the powers of the Commission, to serve a notice on the person who is undertaking the development directing that person to take such steps as are specified in the notice, within such period as is so specified, for the purpose of — | |||
| ||||
| the environmental condition to which the advice of the Minister for the Environment relates; or | ||||
| (c) | advisetheCommission,oralocalauthority exercising the powers of the Commission, to cause such steps to be taken as are necessary for the purpose of — | |||
| ||||
| the environmental condition to which the advice of the Minister for the Environment relates. |
Planning Legislation Amendment Act 1999
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(4) A person shall comply with an order or notice
served on the person under subsection (3) (a) or (b).
Nothing in this section prevents or otherwise affects the application of Part V of the EP Act to —
(5)
| (a) | a development referred to in subsection (2); or |
| (b) | pollution caused by any non-compliance with an environmental condition referred to in subsection (3). |
Crown bound
| 37M. | A regional planning scheme binds the Crown. |
’’.
Section 58 amended
15. Section 58 of the principal Act is amended —
|
‘‘
(2) A regulation may create an offence
punishable by a penalty not exceeding $50 000.
’’.
Planning Legislation Amendment Act 1999
s. 16
Schedule 2 inserted
16. The principal Act is amended by inserting after Schedule 1 the following Schedule —
‘‘
SCHEDULE 2
[Section 37B (1)]
PURPOSES FOR WHICH LAND MAY BE REQUIRED
| Item | Purpose |
1. Car parks.
2. Civic and cultural amenities.
3. Commonwealth Government.
4. Cultural heritage conservation.
5. Highways and important regional roads.
6. Hospitals.
7. Parks and recreation areas.
8. Port installations.
9. Prisons.
10. Public utilities.
11. Railways.
12. Schools.
13. Special uses.
14. State forests.
15. Universities.
16. Water catchments.
17. Waterways.
’’.
By Authority: JOHN A. STRIJK, Government Printer
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