Town Planning and Development Act Amendment Act 1976 (WA)

WESTERN AUSTRALIA.

TOWN PLANNING AND

DEVELOPMENT.

No. 103 of 1976.

AN ACT to amend the Town Planning and

Development Act, 1928-1975.

(Assented to 17th November, 1976.1

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:-

1. (1) This Act may be cited as the Town	and
Short title

Planning and Development Act Amendment Act,	citation.
1976.

(2) In this Act the Town Planning and	Reprinted
as approved

Development Act, 1928-1975 is referred to as the

for reprint

8th March,

principal Act.

amended

1973 and

by Acts

Nos. 19 and

30 of 1973,

14 of 1974

and 69

of 1975.

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Development.

(3) The principal Act as amended by this Act may be cited as the Town Planning and Development Act, 1928-1976.

Commence-

ment. 2. This Act shall come into operation on a date

to be fixed by proclamation.

Section MA	3.	The principal Act is amended by adding after
added.

section 5A the following new section-

Statement

of planning	5AA. (1) Without prejudice to the generality
policy.

of section five of this Act the Board may, with the approval of the Minister, prepare a statement of planning policy with respect to any portion of the State, whether or not a town planning scheme has been or is being prepared for that portion of the State.

A statement of planning policy may make provision for any matter which may be the subject of a town planning scheme under this Act but shall be directed primarily towards broad general planning and facilitating the co-ordination of planning throughout the State by all local authorities.

(2)

(3) In the preparation of a statement of planning policy for an area the Board shall have regard to

(a)

demographic, social and economic

factors and influences;

(b)

conservation of natural resources for social, economic, environmental, ecological and scientific purposes:

(c) characteristics of land;

(d) characteristics and disposition of land use;

(e) amenity and environment;

(f) communications; and

19761 Town Planning and [No. 103.

Development.

(g)

developmental requirements of public

authorities,

and shall in any case where the statement of planning policy is likely to affect a district or districts in particular consult the local auth- ority for that district or the local authorities for those districts with respect thereto and in any other case shall consult the Local Govern- ment Association of W.A. Incorporated and the body known as the Country Shire Councils' Association with respect thereto.

(4) A statement of planning policy shall have no force or effect until approved by the Governor.

(5) The Board shall cause a copy of the approved statement of planning policy to be published in the Government Gazette and shall further cause a copy of the approved planning policy to be forwarded to each local authority, any portion of the district of which is included in the area covered by the statement. .

Section 7

4. Section 7 of the principal Act is amended by amended.

adding at the end thereof the following subsection:

(5) Every local authority shall in preparing or amending any town planning scheme have due regard to any approved statement of planning policy prepared pursuant to the provisions of section 5AA of this Act which affects its district. .

5. Section 37 of the principal Act is amended:— Section 7 amended.

(a) by adding after the interpretation of the term "appeal" the following interpretations:

"Appeal Tribunal" means the Town Planning Appeal Tribunal consti- tuted under section forty-two of this Act;

"Chairman" means Chairman of the

Appeal Tribunal;

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(b)	by deleting the interpretations of the terms "Court" and "President";
(c)	by substituting the words "the Appeal Tribunal" for the words "a Court" in the interpretation of the term "member"; and
(d)	by adding after the interpretation of the term "prescribed" the following interpretation:

"Registrar" means the Registrar of the

Appeal Tribunal.

Section 39

repealed 6. Section 39 of the principal Act is amended:

and re-enacted. (a) by repealing and re-enacting subsection (1) as follows:—

" (1) An appeal may be made to the Minister or to the Appeal Tribunal but the commencement of an appeal to one extinguishes any right of appeal to the other. ; and

(b) in subsection (2) by substituting the words "the Appeal Tribunal" for the words "a Court".

Section 42

repealed	7. Section 42 of the principal Act is repealed and
and

re-enacted.	re-enacted as follows-
Establish-

ment and	42. (1) For the purposes of this Part there (2) The Appeal Tribunal shall consist of three members appointed by the Governor of whom
constitu-
tion of	shall be constituted an appeal tribunal, to be
Appeal
Tribunal.	known as the Town Planning Appeal Tribunal.

(a)	one shall be a practitioner as defined by the Legal Practitioners Act, 1893 of not less than eight years practice and standing;
(b)	one shall be a person having know- ledge of and experience in town planning; and

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Development.

(c) one shall be a person having know- ledge of and experience in public administration, commerce, or industry,

but a person shall not be a member if he is employed under the Public Service Act, 1904 or is otherwise employed in a full time capacity by an agency or instrumentality of the Crown.

(3) Each member of the Appeal Tribunal shall be appointed for a period of not more than three years but shall be eligible for re-appointment.

(4) The Governor shall appoint one of the members to be the Chairman of the Appeal Tribunal.

(5) The Governor may terminate the appointment of a member for inability, inefficiency or misbehaviour.

(6) If any member of the Tribunal:

(a)	resigns his office by writing under his hand addressed to the Minister;
(b)	has his appointment terminated by the Governor; or

(c) dies.

his office shall become vacant.

(7) On the occurrence of any vacancy in the Appeal Tribunal the Governor may appoint another eligible person to fill the vacancy.

(8) In the case of illness or absence of the Chairman or any other member of the Appeal Tribunal, the Minister may appoint another eligible person to act as Chairman or member in his stead during the illness or absence and the person so appointed shall while so acting have all the powers and perform all the duties of the Chairman or member in whose stead he is appointed to act.

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(9) The Chairman and other members of the Appeal Tribunal and any persons acting instead of the Chairman or a member shall each be entitled to be paid such salaries or fees and such expenses as the Governor shall deter- mine. .

Section 4

repealed 3 8. Section 43 of the principal Act is repealed and

reenacted. re-enacted as follows:—

Registrar

and	43. (1) There shall be a Registrar of the
officers	of the

Appeal	Appeal Tribunal and there may be such other
Tribunal.	officers of the Appeal Tribunal as may be necessary to assist the Registrar or the Appeal Tribunal.

The officers of the Appeal Tribunal shall be appointed and shall hold office subject to and in accordance with the Public Service Act, 1904.

(2)

The officers of the Appeal Tribunal may

hold office as such in conjunction with any other

office in the Public Service of the State.

(3)

The Registrar shall keep a register in the

prescribed form of all appeals and the determi-

nation of the Appeal Tribunal thereon. .

(4)

Section 44

repealed	9. Section 44 of the principal Act is repealed and
and

re-enacted. re-enacted as follows:—

Jurisdiction of Appeal 44. The Appeal Tribunal shall hear and

Tribunal.	determine all appeals referred to it under this Part and the regulations and may allow an appeal with or without conditions, affix further conditions, or dismiss the appeal either in whole or in part. .
Section 45

repealed	10. Section 45 of the principal Act is repealed
and

re-enacted.	and re-enacted as follows:-
Grounds for

contesting 45. Every party who desires to contest an

appeal. appeal shall lodge with the Registrar a short statement of the grounds on which he intends

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to rely at the hearing of the appeal and shall deliver a copy thereof to the appellant not less than seven days before the day appointed for the hearing. .

Section 46

11. Section 46 of the principal Act is repealed

repealed

and

and re-enacted as follows:- re-enacted. Sittings of

46. The Chairman shall appoint the time Appeal

and place for the sittings of the Appeal	Tribunal.
Tribunal and may adjourn its sittings from time to time and shall, not less than twenty-one days before the first sitting of an appeal, cause a notice of the time and place for that sitting to be given to each party. .
Section 47

12. Section 47 of the principal Act is repealed	and
repealed

and re-enacted as follows:- re-enacted.

47. (1) The Chairman and one other	Quorum
Appeals

member of the Appeal Tribunal shall be a

to be

determined

quorum but where such a quorum is divided

by

majority.

the hearing of the appeal shall be adjourned

until all three members are present.

(2) The decision of a majority of the members of the Appeal Tribunal shall be the decision of the Appeal Tribunal.

Section 48

13. Section 48 of the principal Act is repealed

repealed

and

and re-enacted as follows:- re-enacted. Hearing to

48. Where a party proceed in absence of parties.

(a)	after a notice of the first sitting of the Appeal Tribunal on an appeal is given to him in accordance with section forty-six of this Act; or
(b)	with knowledge of the time and place appointed for any subsequent sitting of the Appeal Tribunal on the appeal,

fails to appear at the time and place appointed the Appeal Tribunal may proceed to hear and determine the appeal in his absence. .

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Section 49

repealed

and 14. Section 49 of the principal Act is repealed

re-enacted.	and re-enacted as follows:-
Appearance

before	49. A party may appear before the Appeal
Appeal

Tribunal.

Tribunal personally or by counsel or a solicitor

or an agent. .

Section 50

repealed

and 15. Section 50 of the principal Act is repealed

re-enacted and re-enacted as follows:—

Appeal

Tribunal

to examine	50. (1) The Appeal Tribunal may summon all persons required by a party or by the Appeal Tribunal to give evidence before it and may examine those persons on oath or affirmation and may require the production of any documents, plans or other papers in the custody or control of any party.
witnesses.
(2) The parties and their counsel, solicitors, witnesses and all other persons attending the Appeal Tribunal shall have the same rights and privileges and shall be subject to the same obligations and penalties as in the trial of an action at Law in the Supreme Court.
(3) The Appeal Tribunal has, until it has made its determination, all the powers of the Supreme Court insofar as may be necessary for hearing and determining the appeal. .
Section 51

repealed	16. Section 51 of the principal Act is repealed
and

re-enacted.	and re-enacted as follows:-
Appellant

not res-	51. Upon the hearing of any appeal the stated in his notice of appeal and a party contesting an appeal shall not be restricted to the grounds stated by him under section forty- five of this Act but where any new ground or matter not so stated is raised on the appeal the Appeal Tribunal shall, by adjournment or otherwise, ensure that the other parties or persons entitled to be heard have a reasonable opportunity of properly considering and replying to that ground or matter. .
tricted to
grounds of	appellant shall not be restricted to the grounds
appeal.

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Section 52

17. Section 52 of the principal Act is repealed

repealed

and

and re-enacted as follows:- re-enacted.

52. On the hearing of any appeal the	Tribunal
Appeal

Appeal Tribunal shall act according to equity	according
to act
and a good conscience and the substantial	to sub-
stantial
merits of the case without regard to technical-	merits of
the case.
ities or legal forms and shall not be bound by any rules of evidence, subject to the require- ments of justice, and may inform itself of any matter in such manner as it thinks fit. .
Section 53

18. Section 53 of the principal Act is repealed

repealed

and

and re-enacted as follows:-

re-enacted.

Appeal

53. In determining any appeal the Appeal Tribunal shall have due regard to any approved

Tribunal

to have

regard to

statements

statement of planning policy prepared pursuant

of planning

to the provisions of section 5AA of this Act

policy.

which may affect the subject matter of the

appeal. .

Section 54

19. Section 54 of the principal Act is repealed

repealed

and

and re-enacted as follows:-

re-enacted.

Power of

54. (1) Where it appears to the Appeal Minister to make

Tribunal that any appeal may be determined

submissions

to Appeal

in a way which will have a substantial effect

Tribunal.

on the future planning of the area in which the land the subject of the appeal is situated the Appeal Tribunal may invite the Minister to make a submission as to the matters which he considers to be relevant to the issues before the Appeal Tribunal.

(2) Where it appears to the Minister that any appeal may be determined in a way which will have a substantial effect on the future planning of the area in which the land the subject of the appeal is situated the Minister may make a submission as to the matters which he considers to be relevant to the issues before the Appeal Tribunal.

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(3) Any submission may be made by the Minister in writing, or orally on his behalf by a representative who appears at the hearing of the appeal, and may be made at any time before the determination of the appeal.

(4) Where a submission has been made by the Minister in writing, a copy shall be given to the parties who shall in any case be given an opportunity of making further submissions to the Appeal Tribunal.

(5) In determining the appeal the Tribunal shall have due regard to the submissions made by the Minister. .

Sections

54A to MG 20. The principal Act is amended by adding

added.	after section 54 the following new sections:-
Proceedings

to be	54A. All proceedings before the Appeal
public

unless

Tribunal shall be conducted in public unless

otherwise

deter-

the Appeal Tribunal determines as it is hereby

mined.

authorised to do, that any part of the proceed-

ings shall be in camera.

Appeal to

(1) Subject to subsection (2) of this determination, or order of the Appeal Tribunal in proceedings before the Tribunal to which the person was a party may appeal to the Supreme Court against the direction, determination, or order, in the manner, and in the time, prescribed by the Rules of Court.

Supreme 54B.

Court in

certain	section, any person aggrieved by a direction,
cases.
(2) An appeal does not lie to the Supreme Court from a direction, determination, or order of the Court unless the appeal involves a question of law.

The Supreme Court may make such order as to costs as it thinks fit in relation to an appeal to the Supreme Court under this section.

(3)

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54C. On an appeal to the Appeal Tribunalappeal=

the Appeal Tribunal may award such costs as it thinks fit and any costs so awarded may, as a debt due, be recovered in a court of competent jurisdiction.

54D. On an appeal to the Appeal Tribunal Egrotina-

the determination of the Tribunal is final Tribunal except as provided by section fifty-four B of this cept in

Act.	cases.
Written

54E. The Appeal Tribunal reasonsfor deter- mination

(a)	shall give to the parties to an appeal to	and
publication
the Tribunal written reasons for the	thereof.
determination of the Tribunal on the appeal; and
(b)	shall publish those reasons in the manner prescribed.
Immunity

54F. No liability shall attach to a member or an acting member, or the Registrar or any

of Appeal Tribunal

and

officers.

other officer of the Appeal Tribunal for any act or omission by him, or by the Tribunal, in good faith, and in the exercise or purported exercise of his or its powers or functions, or in the discharge or purported discharge of his or its duties under this Act.

Pending

54G. Without prejudice to the provisions of section sixteen of the Interpretation Act, 1918, every appeal commenced and not finally disposed of before the commencement of the Town Planning and Development Act Amendment Act, 1976, shall be heard and determined in all respects as if that Act had not been passed. .

appeals.

21. Section 55 of the principal Act is amended =,(1•

by substituting the words "the Appeal Tribunal" for

the words "a Court" where appearing.