Town Planning and Development Act 1928 11-c0-03 Xml

Western Australia

Town Planning and Development Act 1928

An Act relating to the planning and development of land for urban, suburban, and rural purposes.

1.Short title and commencement

This Act may be cited as the Town Planning and Development Act 1928, and shall come into operation on a date to be fixed by proclamation 1.

2.Interpretation

(1)In this Act, unless the context otherwise requires —

“assessed scheme” means a town planning scheme, or an amendment to a town planning scheme, that is an assessed scheme within the meaning of the EP Act;

“building line” means the line between which and any public place or public reserve a building may not be erected, fixed by a local government or the Commission, as the case may be, and shown on or described in a plan for a town planning scheme approved by the Minister or the Metropolitan Region Scheme made by the Commission and includes a building line or a new building line prescribed by a local law of any local government;

“Commission” means the Western Australian Planning Commission established by section 4 of the Western Australian Planning Commission Act 1985;

“development” means the development or use of any land, including any demolition, erection, construction, alteration of or addition to any building or structure on the land and the carrying out on the land of any excavation or other works and, in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, also includes any act or thing that —

(a)is likely to change the character of that place or the external appearance of any building; or

(b)would constitute an irreversible alteration of the fabric of any building;

“district” means an area that has been declared to be a district under the Local Government Act 1995;

“environmental condition” means a condition agreed under section 48F, or decided under section 48J, of the EP Act;

“EPA” means the Environmental Protection Authority continued in existence under the EP Act;

“EP Act” means the Environmental Protection Act 1986;

“Heritage Council” means the Heritage Council of Western Australia established pursuant to the Heritage of Western Australia Act 1990;

“land” includes land, tenements and hereditaments and any interest therein, and also houses, buildings, and other works and structures;

“legal practitioner” means a person entitled to practise as a barrister and solicitor of the Supreme Court;

“lot” means a defined portion of land —

depicted on a plan or diagram publicly exhibited in the public office of the Department of Land Administration 2, or deposited in the Department within the meaning of the Transfer of Land Act 1893 or Registry of Deeds and for which a separate Crown grant, certificate of Crown land title, qualified certificate of Crown land title, or certificate of title has been or can be issued; or

depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not, but which is, whether before or after the coming into operation of the Town Planning and Development Act Amendment Act 1956 1, approved by the Commission

and includes the whole of the land the subject —

(a)of a Crown grant issued under the Land Act 1933 3; or

(aa)of a certificate of Crown land title, or qualified certificate of Crown land title, created and registered under the Transfer of Land Act 1893; or

(b)of a certificate of title registered under the Transfer of Land Act 1893; or

(c)of a survey into a location or lot under section 27(2) of the Land Administration Act 1997; or

(d)of a part‑lot shown on a plan of subdivision or diagram deposited in the Department of Land Administration 2, Department within the meaning of the Transfer of Land Act 1893, or Registry of Deeds; or

(e)of a conveyance registered under the Registration of Deeds Act 1856;

“Metropolitan Region Scheme” has the same meaning as it has in the Metropolitan Region Town Planning Scheme Act 1959;

“Minister for the Environment” means the Minister to whom the Governor has for the time being committed the administration of the EP Act;

“public authority” means a Minister of the Crown acting in his official capacity, a State Government department, State trading concern, State instrumentality, State public utility and any other person or body, whether corporate or not, who or which, under the authority of any Act, administers or carries on for the benefit of the State, a social service or public utility;

“regulations”, in Part V, means regulations made under the State Administrative Tribunal Act 2004;

“responsible authority” means the local government responsible for the enforcement of the observance of a scheme, or for the execution of any works which under a scheme, or this Act, are to be executed by a local government;

“rules” means rules of the State Administrative Tribunal made under the State Administrative Tribunal Act 2004;

“subdivision” includes amalgamation;

“town planning” means either city, town, suburban, or rural planning and development, or all four;

“waterway” means an artificial channel, lake, harbour or embayment, for navigational, ornamental and recreational purposes, or for any of those purposes; and includes any addition to or alteration of a waterway as so defined.

(2)After the coming into operation of Part III of the Acts Amendment (Metropolitan Region Town Planning Scheme) Act 1982 1, the meaning to be given to a reference, however expressed, in any written law, or other instrument, or document to the metropolitan region as defined in or for the purposes of this Act or to the districts of the municipalities specified in the Third Schedule shall, unless otherwise provided in that written law, instrument, or document, be the meaning that that reference had immediately before the coming into operation of that Part.

[Section 2 amended by No. 79 of 1953 s. 2; No. 63 of 1955 s. 2; No. 79 of 1956 s. 2; No. 61 of 1958 s. 2; No. 49 of 1959 s. 2; No. 64 of 1961 s. 3; No. 30 of 1973 s. 2; No. 73 of 1982 s. 15; No. 120 of 1982 s. 3; No. 92 of 1985 s. 4; No. 97 of 1990 s. 10; No. 84 of 1994 s. 46 and 52; No. 14 of 1996 s. 4; No. 23 of 1996 s. 42; No. 81 of 1996 s. 153(1) and (2); No. 31 of 1997 s. 86(1); No. 59 of 1999 s. 4; No. 24 of 2002 s. 4; No. 55 of 2004 s. 1192.]

Part I — Town planning

[3-5A.Repealed by No. 92 of 1985 s. 5.]

5AA.Statements of planning policy

(1)Without limiting the generality of section 18 of the Western Australian Planning Commission Act 1985, the Commission may, with the approval of the Minister, prepare statements of planning policy.

(2)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 coordination of planning throughout the State by all local governments and may be prepared so as to apply —

(a)generally or in a particular class of matter or in particular classes of matters; and

(b)throughout the State or in a specified portion or specified portions of the State, whether or not a town planning scheme has been prepared or is being prepared in that portion or those portions of the State.

(3)In the preparation of a statement of planning policy the Commission shall have regard to —

(a)demographic, social and economic factors and influences;

(b)conservation of natural or cultural 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

(g)developmental requirements of public authorities,

in respect of the State, portion of the State, or portions of the State, as the case may be, and shall in any case where the statement of planning policy is likely to affect a district or districts in particular consult the local government for that district or the local governments for those districts with respect thereto and in any other case shall consult the Western Australian Local Government Association with respect thereto.

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

(5)The Commission 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 government, any portion of the district of which is included in the area covered by the statement.

(6)A statement of planning policy may be varied or amplified by amendments prepared by the Commission and approved by the Minister, or may be revoked by a subsequent statement of policy prepared by the Commission and approved by the Minister.

(7)Subsections (3), (4), and (5) apply, with such modifications as are necessary, to and in relation to amendments and subsequent statements referred to in subsection (6).

(8)The Commission may, in relation to a particular statement of planning policy or an amendment to such a statement, act under sections 7(2), 7A1, 7A2, 7A3 and 7A4 as if —

(a)the Commission were a local government; and

(b)that statement or amendment were a town planning scheme,

but otherwise this section applies to that statement or amendment.

[Section 5AA inserted by No. 32 of 1978 s. 3; amended by No. 92 of 1985 s. 6; No. 97 of 1990 s. 11; No. 84 of 1994 s. 46; No. 14 of 1996 s. 4; No. 23 of 1996 s. 43; No. 57 of 1997 s. 121(1); No. 49 of 2004 s. 13.]

6.Town planning schemes

(1)A town planning scheme may be made, in accordance with the provisions of this Act, with respect to any land with the general object of improving and developing such land to the best possible advantage, and of securing suitable provision for traffic, transportation, disposition of shops, residence, factory and other areas, proper sanitary conditions and conveniences, parks, gardens and reserves, and of making suitable provision for the use of land for building or other purposes and for all or any of the purposes provisions, powers or works contained in the First Schedule.

(2)With those objects the scheme may provide for planning, replanning, or reconstructing the whole or any part of the area comprised in the scheme.

(3)Nothing in this Act prevents, or has ever prevented, —

(a)a town planning scheme from being made with respect to land comprised in another town planning scheme; or

(b)2 or more town planning schemes from having force and effect concurrently with respect to any land.

(4)A town planning scheme shall not be made under this Act for any land that is in the redevelopment area —

(a)within the meaning in the East Perth Redevelopment Act 1991, in the Subiaco Redevelopment Act 1994, in the Midland Redevelopment Act 1999 or in the Armadale Redevelopment Act 2001, so long as there is in operation in respect of that land a redevelopment scheme under Part 4 of any of those Acts; or

(b)within the meaning in the Hope Valley‑Wattleup Redevelopment Act 2000.

[Section 6 amended by No. 29 of 1947 s. 3; No. 79 of 1953 s. 5; No. 72 of 1980 s. 5; No. 62 of 1991 s. 59; No. 35 of 1994 s. 67; No. 38 of 1999 s. 78(2); No. 77 of 2000 s. 39(2); No. 25 of 2001 s. 69.]

7.Preparation of schemes

(1)A local government may, subject to section 7A, prepare a town planning scheme, or an amendment to a town planning scheme, with reference to any land within its district, or with reference to land within its district and other land within any adjacent district, or may adopt, with or without modifications, any such scheme proposed by all or any of the owners of any land with respect to which the local government might itself have prepared a scheme.

(2)Subject to subsection (2aa), a town planning scheme prepared or adopted, or an amendment to a town planning scheme prepared, by a local government shall —

(a)after compliance with sections 7A1 and 7A2 in respect of that town planning scheme or amendment, be advertised for public inspection in accordance with the regulations; and

(b)after advertisement under this subsection and compliance with sections 7A3 and 7A4 in respect of that town planning scheme or amendment, be submitted to the Minister for his approval.

(2aa)A local government shall, before submitting a town planning scheme or amendment to the Minister under subsection (2)(b), make reasonable endeavours to consult in respect of the town planning scheme or amendment such public authorities and persons as appear to the local government to be likely to be affected by the town planning scheme or amendment.

(2a)The Minister may, in relation to a town planning scheme or amendment submitted to him under subsection (2)(b) —

(a)approve of that town planning scheme or amendment;

(b)require the local government concerned to modify that town planning scheme or amendment in such manner as he specifies before that town planning scheme or amendment is resubmitted for his approval under this subsection; or

(c)refuse to approve of that town planning scheme or amendment.

(3)A town planning scheme or amendment to a town planning scheme, when approved of by the Minister and published in the Gazette, shall have full force and effect as if it were enacted by this Act.

(3a)It is sufficient compliance with subsection (3) if a town planning scheme or amendment to a town planning scheme is published in the Gazette without any maps, plans or diagrams which form part of the town planning scheme or amendment.

(4)A town planning scheme may, subject to section 7A, be —

(a)revoked by a subsequent town planning scheme;

(b)varied or amplified by an amendment to the scheme prepared by the local government, approved by the Minister and published in the Gazette;

(c)revoked by an instrument of revocation made by the local government, approved by the Minister and published in the Gazette.

(5)Every local government in preparing or amending a town planning scheme —

(a)shall have due regard to any approved statement of planning policy prepared under section 5AA which affects its district; and

(b)may include in the scheme a provision that a specified statement of planning policy, with such modifications as may be set out in the scheme, shall be read as part of the scheme, or a provision however expressed to the same effect,

and where a scheme includes such a provision —

(c)the scheme shall have effect as if the statement of planning policy, as from time to time duly amended, or any subsequent statement by which it is revoked as mentioned in section 5AA(6) were set out in full in the scheme; and

(d)the statement of planning policy shall have effect as part of the scheme subject to any modifications set out therein, which modifications shall prevail over any later amendment of the statement, or subsequent statement, referred to in paragraph (c) which is inconsistent therewith.

(6)Where any entry in the Register or on any list maintained under section 46 or section 45 of the Heritage of Western Australia Act 1990 relates to land or waters that are within or abut a local government district, the local government in preparing or amending a town planning scheme shall refer the proposed scheme to the Heritage Council for advice in so far as any proposal under that scheme affects or may affect any such land or waters, shall have regard to any advice furnished, and shall not, without the consent of the Minister, proceed with the proposal unless or until that advice has been received.

(7)If a management programme in force under Part 3 of the Swan River Trust Act 1988 relates to land or waters that are within or abut the district of a local government referred to in Schedule 2 of that Act, that local government in preparing or amending a town planning scheme shall have due regard to that management programme.

[Section 7 amended by No. 61 of 1958 s. 3; No. 103 of 1976 s. 4; No. 72 of 1980 s. 6; No. 120 of 1982 s. 4(1); No. 32 of 1983 s. 2; No. 21 of 1988 s. 20; No. 97 of 1990 s. 12; No. 84 of 1994 s. 53; No. 31 of 1995 s. 27; No. 14 of 1996 s. 4; No. 23 of 1996 s. 44; No. 57 of 1997 s. 121(1); No. 24 of 2000 s. 41.]

7A.Schemes, and amendments, applicable to the Swan Valley

(1)Where the Shire of Swan has prepared a town planning scheme, or an amendment to a town planning scheme, that would apply to land in the Swan Valley, that Shire shall before the scheme or the amendment is advertised for public inspection in accordance with the regulations, refer the scheme or the amendment to the Swan Valley Planning Committee.

(2)The Committee shall, within 42 days after the day on which it receives the referral, or within such longer period as the Shire allows, give to the Shire its advice in writing on the scheme or the amendment, including any modifications it thinks should be made to it.

(3)If the Committee fails to give its advice within the time allowed under subsection (2), it shall be taken to have no advice to give on the scheme or the amendment.

(4)The Commission may, at the request of the Shire of Swan, approve of the Shire disregarding the Committee’s advice in whole or in part in preparing the scheme or the amendment.

(5)Subject to any approval under subsection (4), the Shire shall prepare the town planning scheme or the amendment in accordance with any advice given by the Committee under this section.

(6)In this section “Swan Valley”, “Swan Valley Planning Committee” and “Committee” have the same meanings as they have in the Swan Valley Planning Act 1995.

[Section 7A inserted by No. 31 of 1995 s. 27; amended by No. 14 of 1996 s. 4.]

7A1.Reference of proposed town planning schemes, and proposed amendments to town planning schemes, to Environmental Protection Authority

When a local government resolves to prepare or adopt a town planning scheme, or to prepare an amendment to a town planning scheme, under section 7, the local government shall forthwith refer the proposed town planning scheme or amendment to the EPA by giving to the EPA —

(a)written notice of that resolution; and

(b)such written information about the town planning scheme or amendment as is sufficient to enable the EPA to comply with section 48A of the EP Act in relation to the town planning scheme or amendment.

[Section 7A1 inserted by No. 23 of 1996 s. 45; amended by No. 57 of 1997 s. 121(1).]

7A2.Prerequisite to advertisement of proposed town planning schemes and proposed amendments to town planning schemes

(1)When the EPA has acted under section 48C(1)(a) of the EP Act in relation to a proposed town planning scheme or a proposed amendment to a town planning scheme, the local government concerned shall, if it wishes to proceed with that town planning scheme or amendment, undertake, or cause under subsection (4) to be undertaken, an environmental review of that town planning scheme or amendment in accordance with the relevant instructions issued under that section and shall not advertise that town planning scheme or amendment under section 7(2)(a) until —

(a)the local government has forwarded that review to the EPA; and

(b)the EPA has advised that that review has been undertaken in accordance with those instructions, or 30 days have elapsed since that forwarding without the EPA having advised whether or not that review has been undertaken in accordance with those instructions, whichever first occurs.

(2)If the EPA has advised that the review has not been undertaken in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act, the local government may —

(a)comply with subsection (1) in respect of the town planning scheme or amendment concerned; or

(b)request the Minister to consult the Minister for the Environment and, if possible, agree with him on whether or not the review has been undertaken in accordance with those instructions.

(3)If the Minister, having complied with a request made under subsection (2), and the Minister for the Environment —

(a)agree on whether or not the review has been undertaken in accordance with the relevant instructions, their decision shall be final and without appeal; or

(b)cannot so agree, section 48J of the EP Act applies.

(4)If the resolution to prepare or adopt a town planning scheme, or to prepare an amendment to a town planning scheme, referred to in subsection (1) was passed at the request of the owner of land to which that town planning scheme or amendment relates and the local government referred to in that subsection by notice in writing served on that owner so requests, that owner shall, if that owner wishes that town planning scheme or amendment to be proceeded with, undertake an environmental review of that town planning scheme or amendment in accordance with the relevant instructions issued under section 48C(1)(a) of the EP Act and forward that review to that local government.

(5)A local government may, in accordance with regulations made under section 9(2b), recover the expenses incurred by the local government in undertaking an environmental review in accordance with instructions issued under section 48C(1)(a) of the EP Act.

[Section 7A2 inserted by No. 23 of 1996 s. 45; amended by No. 57 of 1997 s. 121(1).]

7A3.Role of local governments in relation to environmental submissions

When a local government has been informed under section 48A(1)(b)(i) of the EP Act that a proposed town planning scheme or amendment should be assessed by the EPA under Division 3 of Part IV of the EP Act, the local government shall —

(a)as soon as practicable, but in any event within 7 days after the expiry of the period during which that town planning scheme or amendment is advertised under section 7(2)(a), transmit to the EPA a copy of each submission —

(i)made during that period; and

(ii)relating wholly or in part to environmental issues raised by that town planning scheme or amendment;

and

(b)within 42 days, or such longer period as the Minister allows, after the expiry of the period referred to in paragraph (a)(i) inform the EPA of its views on and response to the environmental issues raised by submissions referred to in paragraph (a) and received within that period.

[Section 7A3 inserted by No. 23 of 1996 s. 45; amended by No. 57 of 1997 s. 121(1).]

7A4.Prerequisite to final approval by Minister of proposed town planning schemes and proposed amendments to town planning schemes

The Minister shall not approve under section 7(2a)(a) of a proposed town planning scheme or amendment referred to the EPA under section 7A1 if he or she has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until —

(a)he is informed under section 48A(1)(a) of the EP Act that the EPA considers that that town planning scheme or amendment should not be assessed by the EPA under Division 3 of Part IV of the EP Act;

(b)he has received a statement delivered under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which that town planning scheme or amendment is subject; or

(c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the local government under that section,

whichever first occurs, and he is satisfied that the conditions, if any, to which that town planning scheme or amendment is subject have been incorporated into that town planning scheme or amendment.

[Section 7A4 inserted by No. 23 of 1996 s. 45; amended by No. 57 of 1997 s. 121(1).]

7AA.Review of schemes

(1)A town planning scheme that has been approved by the Minister and published in the Gazette shall be examined —

(a)if the Minister after consulting the local government affected by notice in the Gazette so directs, in accordance with that direction; or

(b)in each fifth year following the date on which it was last published in the Gazette with the approval of the Minister.

(2)(a)The examination required by subsection (1) shall be effected by way of a report to the Minister by the local government on the operation of the scheme.

(aa)Before it makes such a report, the local government shall, except to the extent that the Minister in writing exempts it from compliance with this paragraph or unless the scheme does not contain any provision for the zoning or classification of land, in accordance with this Act —

(i)prepare a consolidation of the scheme incorporating such amendments as have been made to the scheme and are in force; and

(ii)invite submissions from the public on the desirability of a review of the scheme,

and the report shall include all such submissions and the local government’s recommendations thereon.

(b)Where a report of the local government recommends a review of the scheme, or the Minister after considering a report advises the local government that a review is desirable, the scheme shall be reviewed within the period of 6 months or such longer period as the Minister may in writing agree from the date of the report or the date of the Minister’s advice as the case may be.

(c)Where a report of the local government recommends the revocation of the scheme without a review thereof, or the Minister after considering a report advises the local government that it is desirable that the scheme be revoked without a review thereof, the scheme shall be revoked pursuant to section 7(4)(c) as soon as practicable after the date of the report or the date of the Minister’s advice as the case may be.

(3)Except where subsection (3a) applies, the review of a town planning scheme in accordance with subsection (2) shall be effected by way of the preparation and making in accordance with this Act of a new town planning scheme for the land to which the scheme relates.

(3a)If the Minister considers that the making of a new town planning scheme is unnecessary or inexpedient, he may —

(a)declare any consolidated scheme prepared by the local government under subsection (2)(aa) (and incorporating any amendment specified by the Minister which has come into force subsequently) to be acceptable for the purposes of this section; and

(b)direct that the review be effected by the making of the scheme so declared,

and, where he does so, that consolidated scheme shall, without affecting its continuation in force as a town planning scheme, be treated for the purpose of review pursuant to regulations made under this Act as if it were a proposed scheme in respect of which the Minister had given consent to public submissions being sought as provided in such regulations.

(3b)A reference in this or any other Act to a scheme prepared in accordance with section 7 shall be read as including a reference to a scheme prepared on review in accordance with subsection (3) or (3a).

(4)Where 2 or more town planning schemes are consolidated the provisions of this section apply to those schemes as so consolidated with effect from the date on which they were last published in the Gazette as a consolidated scheme with the approval of the Minister.

[Section 7AA inserted by No. 34 of 1972 s. 2; amended by No. 72 of 1980 s. 7; No. 120 of 1982 s. 6 (as amended by No. 32 of 1983 s. 8); No. 14 of 1996 s. 4; No. 57 of 1997 s. 121(2).]

7B. Interim development

(1)(a)Pending the consideration by the Minister of a proposed town planning scheme for a district or part of a district which district or which part is situated outside the region described in the Third Schedule to the Metropolitan Region Town Planning Scheme Act 1959 as the metropolitan region, the Minister may in accordance with this section, make such interim development order or orders as are necessary for regulating, restricting or prohibiting the development of any land within the district or such part or parts thereof as are affected by, and specified in, the order.

(b)Nothing in an interim development order prevents the continuance of the use of any land or building for the purposes for which the land or building was being lawfully used, or the carrying out of any development for which, immediately prior to the coming into operation of the order, a permit or permits, if any required by or under this or any other Act authorising the development to be carried out had been obtained and were current.

(2)(a)Upon the making of an interim development order, the local government in whose district the order applies shall cause to be published in the Gazette and 3 times in a daily newspaper circulating in that district, a notice containing a summary of the order and stating that copies of the order will be made available by the Minister 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 or areas affected by the order.

(b)Subject to the provisions of subsection (3), an interim development order made under this section has effect from the date of publication in the Gazette of the notice in accordance with the provisions of paragraph (a), as though its provisions were enacted by this Act.

(3)An interim development order made under this section that applies to a district or part of a district ceases to have effect in that district or that part —

(a)when a town planning scheme made in accordance with this Act comes into force with respect to that district or that part;

(b)when the order is revoked by the Minister, by notice of revocation published in the Gazette under subsection (10); or

(c)at the expiration of 3 years from the day on which the order first applies to the district or the part,

but the Minister may, by notice published in the Gazette before the order ceases to have effect under paragraph (c), extend its operation for a further period, not exceeding 12 months, and may if he thinks fit exercise such power of extension more than once.

(4)An interim development order made under this section shall be administered by the local government or local governments specified in the order.

(5)An interim development order made under this section may —

(a)(i)require a person, before commencing to carry out any specified development within the district or part of a district to which the order applies, to obtain the permission of the local government administering the order in writing in accordance with the provisions of paragraph (b);

(ii)regulate, restrict or prohibit any specified class of development within the district or such part or parts thereof as are specified in the order;

(iii)exempt from the operation of the order any specified class of development within the district or the part or parts thereof as are specified in the order; or

(iv)in the case of land to which the Heritage of Western Australia Act 1990 applies, require the local government administering the order before granting an application for permission to carry out any development to refer the application in question to the Heritage Council, not to proceed with the application unless or until the advice of the Heritage Council has been received, and to have regard to that advice;

(b)provide that the permission of the local government in writing for the carrying out of any development referred to in the order, if granted, may be granted subject to such conditions as the local government deems necessary to impose, including, without limiting the generality of the conditions, —

(i)a condition limiting the period during which the development may be carried out; and

(ii)a condition requiring the cessation of the development and the removal of any structure or building erected, pursuant to that permission, at the expiry of the period so limited;

(c)provide that the local government administering the order may refuse to grant to an applicant its permission for the carrying out of any specified class of development within the district or such part or parts thereof as are specified in the order;

(d)subject to the provisions of subsection (1)(b), suspend, vary, supplement or supersede any of the provisions of any of the local laws in force under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960, in the district or part of the district to which the interim development order applies.

(6)(a)Subject to paragraph (c), if an applicant is aggrieved by the refusal of a permit or by the conditions subject to which a permit is granted, the applicant may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the decision to refuse or to impose the conditions.

[(b)deleted]

(c)No application for a review shall be made or heard in respect of any development that contravenes any provision of a town planning scheme or of any local laws of a local government that are not superseded by the interim development order or of any Order made under Part 6, or Order in Council made under section 80, of the Heritage of Western Australia Act 1990.

(d)Where a local government administering an interim development order fails to grant its permission within a period of 60 days after the receipt by it of an application for permission to carry out any development referred to in this section, or, in the case of land in relation to which the local government has referred the application to the Heritage Council and has so notified the applicant, where a period of 60 days has elapsed since that notification and the local government has failed to make its decision known, the applicant may regard the failure as a refusal of permission and may apply for a review as provided in paragraph (a).

(7)(a)Subject to subsection (1)(b), a person who —

(i)contravenes or fails to comply with an interim development order;

(ii)commences or continues to carry out any development which is required to comply with an interim development order otherwise than in accordance with that order or otherwise than in accordance with any condition imposed with respect to the development by a local government administering that order pursuant to its powers under the order; or

(iii)fails to comply with a notice given to the person under subsection (8)(a),

is guilty of an offence.

Penalty: $50 000, and a daily penalty of $5 000.

[(b)deleted]

(c)This subsection does not prejudice or affect subsection (8).

(8)(a)The local government administering an interim development order may by notice in writing served on the owner or owners of any land to which the interim development order refers, or such of them as can with reasonable diligence be ascertained, either personally or by registered letter posted to their last known place of residence, direct him or them —

(i)to remove, pull down, take up, or alter any building or work; or

(ii)to cease any development commenced, continued or carried out,

in contravention of the provisions of the order on that land, and subject to the provisions of paragraph (b), if the owner or owners, as the case may be, fail or refuse to comply with the notice within the time specified therein, the local government may itself remove, pull down, take up or alter the building, work or development accordingly.

(b)The owner or owners on whom a notice is served under paragraph (a) may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the decision to give any direction in the notice.

(ba)If the State Administrative Tribunal affirms, varies or substitutes the direction, the owner or owners shall comply with the direction as so affirmed, varied or substituted.

(c)Any expenses incurred by the local government under the provisions of paragraph (a) may be recovered from the owner or owners of the land on which the building or work was so commenced, continued or carried out as a debt due to it by the owner or owners.

(9)Where a public authority or local government desires to carry out, within an area to which a current interim development order relates, any work or undertaking that is not exempted by the provisions of the order but which, in the opinion of the local government administering that order, would not be in conformity with the proposed town planning scheme for the district in which the area is situated, if, after consultation between the public authority or local government desiring to carry out the work or undertaking and the local government administering the order, agreement is not reached with respect to the coordination of the work or undertaking with the proposals to be included in the scheme the local government may submit the matter to the Minister for determination by the Governor and the Governor may by Order in Council —

(a)prohibit absolutely or for such period as he thinks fit; or

(b)restrict, or regulate, or permit,

the carrying out of the work or undertaking or any part thereof subject to such conditions as he may specify in the Order in Council which order has effect accordingly subject to any provision of law inconsistent therewith.

(10)(a)The Minister may at any time revoke an interim development order made under this section by notice published in the Gazette and that notice shall also be published 3 times in a daily newspaper circulating in the district to which the order applies.

(b)The Minister may at any time make an order amending an interim development order and the provisions of subsection (2) apply mutatis mutandis to any order amending an interim development order as though the amending order were an interim development order.

(11)A town planning scheme relating to a district or part of a district and that is operating therein and any local laws in force made under the Local Government Act 1995 and the Local Government (Miscellaneous Provisions) Act 1960, or any Act for which that Act is in substitution remains in force subject to the provisions of any interim development order applying to that district or that part and where any of the provisions of the town planning scheme or of the local laws are inconsistent with any of the provisions of the interim development order, the provisions of the interim development order prevail.

(12)(a)No compensation for injurious affection to any land within a district or for loss arising from any other cause is payable under this Act as a result of the operation of an interim development order unless —

(i)the local government administering the interim development order —

refuses an application made pursuant to the order for permission to carry out development on the land; or

grants permission for the carrying out of the development on the land subject to conditions

on the ground that the proposed town planning scheme for the district is to include that land within a reservation for public purposes; and

(ii)any decision for the review of which the claimant has made an application under subsection (6) has been affirmed in whole or in part by the State Administrative Tribunal.

(b)Where compensation is claimed under paragraph (a), the compensation shall be determined by arbitration in accordance with the Commercial Arbitration Act 1985 or by some other method agreed upon by the parties, but instead of the payment of compensation determined under this subsection, the local government may, and shall at the request of the claimant, purchase the land injuriously affected at a price not exceeding the value of the land at the time of the refusal of permission or of the grant of permission subject to conditions, without regard to any increase in value attributable wholly or in part to the proposed town planning scheme for the district in which the land is situated.

[Section 7B inserted by No. 45 of 1962 s. 3; amended by No. 113 of 1965 s. 8(1); No. 73 of 1982 s. 16; No. 32 of 1983 s. 3; No. 92 of 1985 s. 10; No. 109 of 1985 s. 3(1); No. 97 of 1990 s. 13; No. 84 of 1994 s. 54; No. 14 of 1996 s. 4; No. 10 of 1998 s. 68(1); No. 24 of 2002 s. 5; No. 55 of 2004 s. 1193.]

8.General provisions of schemes

(1)The Minister may, by regulation, prescribe a set of general provisions (or separate sets of general provisions adapted for areas of any special character) for carrying out the general objects of town planning schemes, and in particular for dealing with the matters set out in the First Schedule.

(1a)Where a town planning scheme is made in respect of an area, any general provision, appropriate to the area, that is in force under subsection (1) when the scheme is approved by the Minister, shall have effect as part of the scheme, except so far as the scheme, as approved by the Minister, provides for the variation or exclusion of that provision.

(2)Special provisions shall, in addition, be inserted in every town planning scheme —

(a)defining in such manner as may be prescribed by regulations under this Act the area to which the scheme is to apply; and

(b)defining the local government to be responsible for enforcing the observance of the scheme, and for the execution of any works which, under the scheme or this Act, are to be executed by a local government (in this Act referred to as the responsible authority); and

(c)providing for any matters which may be dealt with by general provisions, and otherwise supplementing, excluding, or varying the general provisions; and also dealing with any special circumstances or contingencies for which adequate provision is not made by the general provisions.

(3)Where land included in a town planning scheme is in the districts of more than one local government, or is in the district of a local government by which the scheme was not prepared, the responsible authority may be one of those local governments, or for certain purposes of the scheme one local government, and for other purposes of the scheme another local government.

[Section 8 amended by No. 72 of 1980 s. 8; No. 14 of 1996 s. 4.]

8A.Review of exercise of discretionary power under a scheme

(1)Subject to this section, if —

(a)under a town planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of the responsible authority;

(b)a person has applied to the authority for such a grant; and

(c)the authority has refused the application or has granted it subject to any condition,

the applicant may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the responsible authority’s decision.

(2)Subsection (1) does not affect the operation of a right given or taken to be given by a town planning scheme to apply for a review of a decision; but, where rights are given or taken to be given by a scheme and under subsection (1), the exercise of one of those rights extinguishes the other right to apply for a review of the same decision.

[Section 8A inserted by No. 32 of 1983 s. 4(1); amended by No. 26 of 1986 s. 4; No. 24 of 2002 s. 6; No. 55 of 2004 s. 1194.]

8B.Review of decision under section 48I of Environmental Protection Act 1986

If a responsible authority makes a decision under section 48I(3)(c) or (d) of the EP Act in respect of a proposal under an assessed scheme, the applicant promoting the proposal may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the decision.

[Section 8B inserted by No. 23 of 1996 s. 46; amended by No. 24 of 2002 s. 7; No. 55 of 2004 s. 1195.]

9.Regulations as to procedure

(1)The Minister may make regulations for regulating the procedure to be observed —

(a)with respect to the preparation or adoption of a town planning scheme; and

(b)with respect to obtaining the approval of the Minister to a scheme so prepared or adopted; and

(c)with respect to the review, variation or revocation of a scheme; and

(d)with respect to any inquiries, reports, notices, or other matters required in connection with the preparation or adoption or the approval of the scheme, or preliminary thereto, or in relation to the carrying out of the scheme or enforcing the observance of the provisions thereof, or the review, variation or revocation of the scheme.

(2)Provision shall be made by such regulations —

(a)for securing that notice of the proposal to prepare or adopt a scheme shall be given, at the earliest stage possible, to any local government interested in the land; and

(b)for securing that the local government of the district in which any land proposed to be included in a scheme is situated, shall be furnished with a notice of any proposal to prepare or adopt such a scheme, and with a copy of the draft scheme before the scheme is made, and that such local government shall be entitled to be heard at any inquiry held by the Minister in regard to the scheme.

(2a)Without limiting the generality of subsection (1) regulations made under that subsection with regard to the variation of a scheme may require the payment by the owner of land of the costs incurred in the publication pursuant to the regulations of any notice prescribed therein relating to an amendment to a town planning scheme where the amendment is made at the request of that owner and is in respect of land owned by him.

(2b)The Minister may make regulations with respect to the persons from whom, and the means by which, a local government may recover expenses incurred by it in undertaking an environmental review required by the EP Act under section 48C(1)(a) of the EP Act.

(3)Regulations made under this section may prescribe penalties not exceeding $5 000 for offences against the regulations.

(4)A town planning scheme, or an amendment to a town planning scheme, made or adopted before the coming into operation of the Town Planning and Development Act Amendment Act 1975 1 or any act or thing done pursuant to such a town planning scheme or amendment to a town planning scheme shall not be regarded as invalid by reason only of one or more of the following reasons, namely —

(a)that, in the notice of that town planning scheme or amendment to a town planning scheme, as the case may be, the date specified by the Commission as the date on or before which objections to the scheme or amendment could be made was a date earlier, but not more than 7 days earlier, than the proper date;

(b)that the responsible authority did not accept for consideration an objection to that town planning scheme or amendment to a town planning scheme, as the case may be, being an objection that was made on or before the proper date but was not made —

(i)on or before the date specified in the notice of the scheme or amendment; or

(ii)more than 7 days before the proper date;

(c)that a copy of the notice of that town planning scheme or amendment to a town planning scheme, as the case may be, was displayed in the offices of the responsible authority for a period, shorter, but not more than 7 days shorter, than the prescribed period.

(5)In subsection (4) —

“notice”, in relation to a town planning scheme or an amendment to a town planning scheme, means the notice notifying persons of their entitlement to make objections to that scheme or amendment;

“prescribed period”, in relation to a notice notifying persons of their entitlement to make objections to a town planning scheme or amendment to a town planning scheme, means the period prescribed by the regulations as in force at the time that notice was displayed;

“proper date”, in relation to a town planning scheme or an amendment to a town planning scheme, means the earliest date that the Commission could lawfully have specified as the date on or before which objections to that town planning scheme or amendment to a town planning scheme could be made.

[Section 9 amended by No. 98 of 1965 s. 2; No. 113 of 1965 s. 8(1); No. 69 of 1975 s. 2; No. 120 of 1982 s. 7; No. 92 of 1985 s. 7; No. 84 of 1994 s. 55; No. 14 of 1996 s. 4; No. 23 of 1996 s. 47; No. 57 of 1997 s. 121(1), (3) and (4); No. 10 of 1998 s. 68(2).]

10.Power to direct cessation or removal of unlawful development, or restoration or execution of work

(1)For the purposes of subsections (2) and (3) a development is undertaken in contravention of a town planning scheme if the development —

(a)is required to comply with a town planning scheme; and

(b)is commenced, continued or carried out otherwise than in accordance with that scheme or otherwise than in accordance with any condition imposed with respect to the development by the responsible authority pursuant to its powers under that scheme.

(2)If a development, or any part of a development, is undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the scheme.

(3)If a development has been undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person who undertook the development —

(a)to remove, pull down, take up, or alter the development; or

(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.

(4)The responsible authority may give directions under subsections (2) and (3)(a) and (b) in respect of the same development and in the same instrument.

(5)If it appears to a responsible authority that delay in the execution of any work to be executed under a scheme would prejudice the efficient operation of the scheme, the responsible authority may give a written direction to the person whose duty it is to execute the work to execute that work.

(6)A direction under subsection (3) or (5) is to specify a time, being not less than 60 days after the service of the direction, within which the direction is to be complied with.

(7)A person who —

(a)fails to comply with a direction given to the person under subsection (2); or

(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,

commits an offence.

Penalty: $50 000 and a daily penalty of $5 000.

(8)If a person commits an offence under subsection (7) or section 10AA(5) the responsible authority —

(a)may remove, pull down, take up or alter the development, restore the land as nearly as practicable to its condition immediately before the development started, or execute the work, as it directed that person; and

(b)may recover from the person the costs incurred by the responsible authority in so doing as a debt in a court of competent jurisdiction.

[Section 10 inserted by No. 24 of 2002 s. 8.]

10AA.Review of section 10 direction

A person to whom a direction is given under section 10 may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the decision to give the direction.

[Section 10AA inserted by No. 55 of 2004 s. 1196.]

10AB.Requirement to comply with scheme and conditions

(1)A person who contravenes —

(a)a town planning scheme; or

(b)any condition imposed with respect to a development by a responsible authority pursuant to its powers under a town planning scheme,

commits an offence.

Penalty: $50 000 and a daily penalty of $5 000.

(2)Nothing in this section prejudices or affects sections 10 and 10AA.

(3)A person may be prosecuted for an offence under this section irrespective of whether or not a direction has been given under section 10.

[Section 10AB inserted by No. 24 of 2002 s. 8.]

10A.Powers of Minister to ensure that environmental conditions are met

(1)After receiving advice from the Minister for the Environment under section 48H(4) of the EP Act the Minister may exercise one or more of the powers set out in subsection (2) in relation to a development implementing an assessed scheme.

(2)For the purposes of subsection (1) the Minister may —

(a)by order in writing served on the person who is undertaking the development, direct the person to stop doing so for such period, beginning immediately and lasting not more than 24 hours, as is specified in the order;

(b)cause the responsible authority to serve a notice on the person who is undertaking the development directing the person to take such steps as are specified in the notice, within such period as is so specified, for the purpose of —

(i)complying with; or

(ii)preventing any non‑compliance with,

the environmental condition to which the Minister for the Environment’s advice relates; or

(c)advise the responsible authority to cause such steps to be taken as are necessary for the purpose of —

(i)complying with; or

(ii)preventing any non‑compliance with,

the environmental condition to which the Minister for the Environment’s advice relates.

(3)A person shall comply with an order or notice served on the person under subsection (2)(a) or (b).

Penalty: $50 000, and a daily penalty of $5 000.

(4)Nothing in this section prevents or otherwise affects the application of Part V of the EP Act to —

(a)a development referred to in subsection (1); or

(b)pollution or environmental harm caused by any non‑compliance with an environmental condition referred to in subsection (2).

[Section 10A inserted by No. 23 of 1996 s. 48; amended by No. 54 of 2003 s. 68(9).]

11.Compensation

(1)Any person whose land or property is injuriously affected by the making of a town planning scheme shall, if such person makes a claim within the time, if any, limited by the scheme (such time not being less than 6 months after the date when notice of the approval of the scheme is published in the manner prescribed by the regulations), be entitled to obtain compensation in respect thereof from the responsible authority:

Provided that a person shall not be entitled to obtain compensation under this section on account of any building erected, or any contract made, or other thing done with respect to land included in a scheme after the date of the approval of a scheme, or after such other date as the Minister may fix for the purpose, being not earlier than the date of the approval of the scheme.

Provided also that the local government may make agreements with owners for the development of their land during the time that the town planning scheme is being prepared.

(2)Whenever, by the expenditure of money by the responsible authority in the making and carrying out of any town planning scheme, any land or property is within 12 months of the completion of the work, or of the section of the work affecting such land, as the case may be, increased in value, the responsible authority shall be entitled to recover from any person whose land or property is so increased in value, one half of the amount of such increase, if the responsible authority makes a claim for that purpose within the time, if any, limited by the scheme, not being less than 3 months after the date when notice of the approval of the scheme is first published.

(3)Where a town planning scheme is altered or revoked by an order of the Minister under this Act, any person who has incurred expenditure for the purpose of complying with the scheme shall be entitled to compensation from the responsible authority, in so far as any such expenditure is rendered abortive by reason of the alteration or revocation of the scheme.

(4)Any question as to whether any land or property is injuriously affected or increased in value within the meaning of this section, and as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid as compensation under this section, or which the responsible authority is entitled to recover from a person whose land is increased in value shall be determined by arbitration under and in accordance with the Commercial Arbitration Act 1985, unless the parties agree on some other method of determination.

[Section 11 amended by No. 109 of 1985 s. 3(1); No. 14 of 1996 s. 4.]

12.Compensation not recoverable in certain cases

(1)Where land or property is alleged to be injuriously affected by reason of any provisions contained in a town planning scheme, no compensation shall be payable in respect thereof if or so far as the provisions are also contained in any public general or local Act, or in any order having the force of an Act of Parliament, in operation in the area, or are such as would have been enforceable without compensation, if they had been contained in local laws lawfully made by the local government.

(2)Land or property shall not be deemed to be injuriously affected by reason of the making of any provisions inserted in a town planning scheme which, with a view to securing the amenity, health, or convenience of the area included in the scheme, or any part thereof, prescribe the space about, or limit the number of, or prescribe the height, location, purpose, dimensions, or general character of buildings, or any sanitary conditions in connection with buildings, or the quantity of land that may be taken for parks or open spaces, which the local government, having regard to the nature and situation of the land affected by the provisions, considers reasonable for the purpose or which provide for the conservation of any land to which the Heritage of Western Australia Act 1990 applies.

(2a)(a)In this subsection, unless the context otherwise requires, the expression —

“appointed day” means the day on which the Town Planning and Development Act Amendment Act 1956, comes into operation 1;

“land” includes any building or structure on land;

“non‑conforming use” means a use of land which, though lawful immediately prior to the coming into operation of a town planning scheme, is not in conformity with any provision of that scheme which deals with a matter specified in clause 10 of the First Schedule;

“public purpose” means a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work within the meaning of the expression “public work” in the Public Works Act 1902.

(b)Subject to the provisions of paragraph (c), land shall not be deemed to be injuriously affected by reason of any provision of a town planning scheme which comes into force on or after the appointed day, and which deals with any of the matters specified in clause 10 of the First Schedule, unless the scheme

(i)permits development on that land for no purpose other than a public purpose; or

(ii)prohibits wholly or partially the continuance of any non‑conforming use of that land or the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non‑conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.

(c)Notwithstanding the provisions of paragraph (b) a provision of a town planning scheme which prescribes any requirement to be complied with in respect of a class or kind of building shall not be deemed to have the effect of so prohibiting the erection, alteration or extension of a building of that class or kind in connection with, or in furtherance of non‑conforming use.

(d)Where a town planning scheme, which comes into operation on or after the appointed day, wholly or partially prohibits the continuance of any non‑conforming use of any land or the erection, alteration or extension of any building in connection with or in furtherance of a non‑conforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme, does not comprise

(i)the lot or lots on which the non‑conforming use is in fact being carried on; or

if the prohibition relates to a building or buildings standing on one lot,

(ii)the lot on which the building stands or the buildings stand; or

if the prohibition relates to a building or buildings standing on more than one lot,

(iii)the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for which the building or buildings is or are being used.

(e)Notwithstanding the provisions of section 11, if any question arises under paragraph (d) as to whether at any particular date, any land does or does not comprise the lot or lots on which a non‑conforming use is being carried on, or is or is not being used for any purpose authorised by a scheme, or is or is not reasonably required for the purpose for which any building is being used that question shall, on the application of the claimant or the responsible authority be determined by arbitration under and in accordance with the Commercial Arbitration Act 1985, unless the parties agree on some other method of determination.

(3)When a person is entitled to compensation under this Act in respect to any matter or thing, and is also entitled to compensation in respect to the same matter or thing under any other enactment, he shall not be entitled to compensation in respect of that matter or thing both under this Act and that other enactment, and shall not be entitled to any greater compensation under this Act than he would be under such other enactment.

[Section 12 amended by No. 79 of 1956 s. 4; No. 109 of 1985 s. 3(1); No. 97 of 1990 s. 14; No. 14 of 1996 s. 4.]

12A.Record of conditions on title

(1)This section applies when the Commission considers it desirable that owners or prospective owners of land comprised in —

(a)a plan of subdivision or proposed plan of subdivision; or

(b)a scheme or proposed scheme under the Strata Titles Act 1985,

be made aware of hazards or other factors seriously affecting the use or enjoyment of that land and determines that the title and land register in respect of that land should be noted accordingly.

(2)Where this section applies, the Commission may cause a notification of the hazard or other factor affecting the use or enjoyment of the land to be prepared in a form acceptable to the Registrar of Titles or the Registrar of Deeds, as the case requires, and deposited at the Department within the meaning of the Transfer of Land Act 1893 or the Registry of Deeds.

(3)Where a notification is deposited under subsection (2) the Registrar of Titles or the Registrar of Deeds, as the case requires, shall endorse or note the title and land register in respect of the land with that notification.

(4)The Commission may, at any time after the notification has been deposited under subsection (2), request that the Registrar of Titles or the Registrar of Deeds, as the case requires, remove that notification from the title or land register.

[Section 12A inserted by No. 84 of 1994 s. 57; amended by No. 58 of 1995 s. 100; No. 81 of 1996 s. 153(2).]

13.Power to acquire land

(1)The responsible authority may, for the purpose of a town planning scheme, in the name and on behalf of such authority —

(a)purchase any land comprised in such scheme from any person who may be willing to sell the same; or

(b)with the consent of the Governor, take compulsorily, under and subject to Part 9 of the Land Administration Act 1997, (but subject to subsection (2)), any land comprised in such scheme, and whether situate within or without the boundaries of the district of such responsible authority.

(2)When any land is taken compulsorily under the powers conferred by this section the provisions of

(a)sections 170 to 175 inclusive; and

(b)section 184,

of the Land Administration Act 1997, shall not apply to or in respect of the land or the taking or in any manner whatsoever, and that Act shall be read and construed as if the provisions were deleted.

[Section 13 amended by No. 68 of 1957 s. 3; No. 31 of 1997 s. 86(2) and 142.]

14.Responsible authority to have the powers of an owner of land

Subject to the scheme, the responsible authority shall have all the powers of an owner in respect of such land, and may erect buildings thereon or otherwise improve and make use of same in such manner as the responsible authority may deem best.

15.Responsible authority may grant easements

The responsible authority may grant to any person any easement in, upon, through, under, or over any land taken or acquired for town planning purposes, subject to such conditions and payments of such rents as the responsible authority may think fit: Provided that the grant of such easement shall be subject to revocation without compensation at any time when the responsible authority thinks fit, or in the case of the breach of any condition under which easement may have been granted.

[16.Repealed by No. 14 of 1996 s. 4.]

17.Apportionment of expenses between local governments

(1)The Minister may order that any part of the expenses incurred by a local government under this Act, or under any scheme made under this Act, shall be borne by some other local government, and the amount so ordered shall thereupon be deemed to be a debt due to such local government by such other local government.

(2)In fixing the amount to be borne by such other local government, the Minister shall have regard to the proportion of the expenses incurred in respect of anything done within the district of such other local government in relation to a scheme under this Act, and the ratio of such proportion to the whole expense under this Act in relation to the scheme, and such other matters as are prescribed.

(3)A local government may apply to the State Administrative Tribunal for a review, in accordance with Part V, of any order of the Minister under this section.

[Section 17 amended by No. 14 of 1996 s. 4; No. 55 of 2004 s. 1197.]

18.Obligation to prepare or adopt a scheme

(1)If the Minister is satisfied on any representation that a local government —

(a)has failed to take the requisite steps for having a satisfactory town planning scheme prepared and approved in a case where a town planning scheme ought to be made; or

(b)has failed to adopt any scheme proposed by owners of any land, in a case where a town planning scheme ought to be adopted; or

(c)has refused to consent to any modifications or conditions imposed by the Minister, —

the Minister may, as the case requires, order the local government to prepare and submit for the approval of the Minister a town planning scheme, or to adopt a scheme, or to consent to the modification or conditions so inserted:

Provided that, where the representation is that a local government has failed to adopt a scheme, the Minister, in lieu of making such an order as aforesaid, may approve of the proposed scheme, subject to such modifications and conditions, if any, as the Minister may deem fit; and thereupon the scheme shall have effect as if it had been adopted by the local government and approved by the Minister.

(2)A person may make representations to the Minister if the person is aggrieved by the failure of a local government to —

(a)enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme; or

(b)execute any works, which under the scheme or this Act, the local government is required to execute.

(2a)The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.

(2b)For the purpose of making a report and recommendations on a referral under subsection (2a), Part V applies, with such modifications as may be necessary, as if the referral were an application for review.

(2c)If, after holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister is satisfied that the local government has failed —

(a)to enforce effectively the observance of a scheme or a provision of a scheme; or

(b)to execute any works which the local government is required under a scheme or this Act to execute,

the Minister may order the local government to do all things necessary to enforce the observance of the scheme or provision or to execute the works.

(3)The local government may within 28 days of service of the order referred to in the next preceding subsection appeal against the order of the Minister to a Judge, who may confirm, vary or annul the Minister’s order, and make such order as to the costs of the appeal as he shall deem proper, and the decision of the Judge shall be final and enforceable as an order of judgment of the Supreme Court.

(4)The Governor may make rules relating to the institution, conduct, determination of and all matters touching appeals referred to in the next preceding subsection and until rules be made by the Governor under this subsection the proceedings in those matters shall be as the Judge directs and subject to his direction may, as regards the summoning and attendance of witnesses, the production of documents and costs be regulated by the appropriate Rules of the Supreme Court, the appropriate adaptions and alterations being made.

[Section 18 amended by No. 29 of 1947 s. 4; No. 14 of 1996 s. 4; No. 24 of 2002 s. 9; No. 55 of 2004 s. 1198.]

18A.Minister may assume powers of local government

(1)If the Minister is satisfied that a local government has failed to comply with a provision of section 7AA or 18 or of regulations made under section 9 (“the relevant provision”) the Minister may serve notice in writing on the local government —

(a)specifying the relevant provision and the manner in which the local government has failed to comply with it;

(b)specifying a period (which is not to be less than 90 days) within which the local government is required to comply with the relevant provision; and

(c)advising the local government that the Minister intends to exercise the powers conferred by subsection (2) if the local government does not comply with the relevant provision within the period specified in the notice.

(2)Where a notice has been served on a local government under subsection (1) in relation to a town planning scheme and that local government has not complied with the relevant provision within the period specified in the notice, the Minister may take all such steps and prepare or cause to be prepared all such documents as are necessary to ensure compliance with the relevant provision as if the Minister were the local government.

(3)For the purposes of subsection (2) the Minister may by order direct the local government to provide the Minister with such reports or other information specified in the order as are necessary to allow the preparation of the documents referred to in that subsection.

(4)The Minister shall cause a copy of an order directed to a local government under subsection (3) to be served on the local government, and the local government shall comply with the order.

(5)For the purposes of subsection (2) the provisions of the regulations that would have applied to the local government shall apply to the Minister with such modifications as are necessary or are prescribed.

(6)Where the Minister prepares or causes to be prepared and published in the Gazette —

(a)a town planning scheme, incorporating, if necessary, any modifications to, or conditions on, the scheme;

(b)a consolidated town planning scheme; or

(c)the revocation of a town planning scheme,

that scheme, scheme as modified or with conditions, consolidation or revocation, as the case may be, has effect as if it were made, published and adopted by the local government and approved by the Minister and shall be implemented by the local government accordingly.

(7)All costs, charges and expenses incurred by the Minister in the exercise of any powers conferred on the Minister by subsection (2) may be recovered from the local government as a debt due to the Crown or may be deducted from any moneys payable by the Crown to the local government.

(8)A reference in this or any other Act to a scheme prepared in accordance with section 7 or 18 shall be read and construed as including a reference to a town planning scheme prepared or caused to be prepared by the Minister in accordance with this section.

[Section 18A inserted by No. 84 of 1994 s. 59; amended by No. 14 of 1996 s. 4; No. 23 of 1996 s. 49.]

[18B.Repealed by No. 84 of 1994 s. 60.]

18C.Heritage places

(1)Where any land comprised within a place entered in the Register maintained by the Heritage Council under the Heritage of Western Australia Act 1990, or of which such a place forms part, is to be the subject of development, an application for approval of that development shall be made —

(a)in the case of land subject to a town planning scheme prepared under section 7, to the responsible authority; and

(b)in any other case, to the Commission,

and any such approval may be given subject to conditions.

(2)A person shall not, without the approval referred to in subsection (1) or otherwise than in accordance with any condition to which the giving of the approval was subject, carry out, or cause or permit to be carried out, any development affecting land to which subsection (1) applies.

Penalty: $50 000.

[Section 18C inserted by No. 97 of 1990 s. 15; amended by No. 84 of 1994 s. 61.]

Part II — Crown land

19.Planning of town and suburban lands

(1)Where any Crown land has been, or hereafter shall be, set aside or reserved under the Land Act 1933 3, as town, suburban, or village land, such land shall not be sold, leased or disposed of until the Commission shall have prepared, and the Minister shall have approved or refused to approve, a town planning scheme in respect of such land.

(2)The Commission may prepare a town planning scheme in respect of any such land with the general objects set out in section 6, and such scheme shall, if approved by the Minister and published in the Gazette, have the same effect as if it had been lawfully prepared by a local government, and approved under section 7.

(3)The foregoing provisions of this Act shall, so far as the same are consistent and applicable, apply to and in respect of any scheme so prepared, with the substitution of the Commission for the responsible authority.

(4)(a)Where a town planning scheme has been prepared, approved, and published in accordance with the provisions of subsection (2) and where any Crown land the subject of the town planning scheme has been sold, leased or disposed of, the Commission, with the approval of the Minister —

(i)may suspend, vary, supplement, or supersede, any of the provisions of the town planning scheme; or

(ii)may agree with a local government to be jointly responsible with that local government, as the responsible authority under and for the purposes of the town planning scheme either with respect to all, or part, of the town planning scheme; or

(iii)may agree with a local government that the local government shall be substituted as the responsible authority under and for the purposes of the town planning scheme, either with respect to all, or part, of the town planning scheme, and after the provisions of paragraph (b) have been complied with, the provisions of section 7(4) apply to the town planning scheme.

(b)Where the Commission exercises a power conferred on the Commission by the provisions of paragraph (a) and as a result of the exercise of that power a town planning scheme is amended the Minister shall cause notice of the amendment to the scheme to be published in the Gazette.

[Section 19 amended by No. 61 of 1958 s. 5; No. 92 of 1985 s. 10; No. 14 of 1996 s. 4]

Part III — Alienated land

20.Plans of subdivision to be approved

(1)(a)Subject to section 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street, road or way, or either lease or grant a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period, or lease and grant a licence to use or occupy land for terms in the aggregate exceeding 10 years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land, unless the land is dealt with by way of such lease, licence, sale or option of purchase as a lot or lots, or subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.

(b)Where, after payment of consideration for any transaction relating to any land, it is found that the transaction cannot be completed —

(i)within a period of 6 months after the date of entering into the transaction; or

(ii)within such further period as is stipulated in the transaction, or in a subsequent agreement in writing made by all the parties to the transaction, or when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party,

because the land cannot be dealt with as a lot or as lots the person who paid the consideration is entitled to a refund of the consideration from the person to whom it was paid.

(c)This subsection does not apply and never has applied to the grant of, or to the transfer of or other dealing with or in, a mining tenement within the meaning of the Mining Act 1904 4 or the Mining Act 1978 or a portion of such a mining tenement or any shares therein.

(ca)This subsection does not apply to —

(i)the conferral of rights under section 34 of the Dampier to Bunbury Pipeline Act 1997; or

(ii)the issue of a distribution licence under Part 2A of the Energy Coordination Act 1994.

(d)In subsection (1)(a) “land”, in relation to the leasing or the granting of a licence to use or occupy or, where applicable, the leasing and the granting of such a licence, does not include the whole or a portion of a building where —

(i)the building was constructed pursuant to an approval granted by a local government under the Local Government (Miscellaneous Provisions) Act 1960 or an Act repealed by that Act; and

(ii)subject to paragraph (da), the leasing or the granting of a licence does not relate to any land other than that building or portion, and is for a term or period (including any option to renew or extend the same) not exceeding 21 years.

(da)A reference in paragraph (d) to the whole or a portion of a building includes a reference to any area outside that whole or portion, which area is —

(i)the subject of the same lease or licence to use or occupy as that whole or portion or of a lease or licence to use or occupy entered into or granted by the lessor of, or grantor of a licence to use or occupy, that whole or portion; and

(ii)used for the purpose of ingress to or egress from that whole or portion, advertising, parking vehicles, storing goods, loading or unloading goods or passengers or for any other purpose necessary or desirable for the convenient occupation of that whole or portion.

(e)In subsection (1)(a) “licence to use or occupy” does not include an easement.

(1a)A person may without the approval of the Commission lease or grant a licence to use or occupy land for a term of any duration and otherwise than as a lot or lots if that lease or licence belongs to a class of lease or licence for the time being approved under subsection (1c) in respect of the person and complies with such conditions as are imposed under that subsection in respect of that approval.

(1b)A person may apply to the Commission in writing for a class of lease or licence to use or occupy land to be approved under subsection (1c) in respect of him.

(1c)On receiving an application made under subsection (1b) the Commission may, having regard to —

(a)the nature of the interest proposed to be granted under leases or licences of the class concerned;

(b)the classification or zoning of the land to which leases or licences of the class concerned will relate;

(c)the proposed terms of leases or licences of the class concerned, whether for the lives of the proposed lessees or licensees or for fixed periods;

(d)the anticipated number or frequency of leases or licences of the class concerned; and

(e)such matters other than those referred to in paragraphs (a), (b), (c) and (d) as the Commission considers relevant,

approve the class of lease or licence concerned in respect of the applicant for the purposes of subsection (1a), subject to such conditions as the Commission thinks fit to impose in respect of that approval, or refuse so to approve that class.

(1d)The Commission may at any time revoke or amend an approval given under subsection (1c) by notice in writing of that revocation or amendment served on the person in respect of whom or which that approval was given.

(2)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 —

(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

(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.

(3)A plan containing one lot only shall be deemed a plan of subdivision provided that it is a portion of the land comprised in a certificate of title, registered conveyance, a Crown grant, a certificate of Crown land title, a qualified certificate of Crown land title, or a lot on a registered plan.

(4)In the case of land to which section 78 of the Heritage of Western Australia Act 1990 applies —

(a)the Commission shall not grant any application for its approval under this section unless —

(i)the requirements of subsection (1) and subsection (4) of that section have been observed; and

(ii)regard has been had to any advice received from the Heritage Council;

(b)the holder of any approval given by the Commission under this section shall not, where subsection (2)(a) of that section applies, give effect to that approval —

(i)during such time as the operation of the approval is suspended under that section; or

(ii)otherwise than in accordance with subsection (2)(b) and (c) of that section;

and

(c)in relation to any place which is entered in the Register maintained by the Heritage Council under that Act, any approval given shall be deemed to be revoked pursuant to subsection (3) of that section.

(5)In giving its approval under subsection (1)(a), the discretion of the Commission is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration.

[Section 20 amended by No. 79 of 1956 s. 5; No. 79 of 1957 s. 2; No. 61 of 1958 s. 6; No. 98 of 1965 s. 4; No. 25 of 1967 s. 2; No. 31 of 1969 s. 2; No. 34 of 1972 s. 3; No. 76 of 1978 s. 142; No. 89 of 1979 s. 4; No. 107 of 1978 s. 3(1); No. 120 of 1982 s. 10(1); No. 122 of 1982 s. 32; No. 32 of 1983 s. 5; No. 92 of 1985 s. 10; No. 26 of 1986 s. 5; No. 77 of 1986 s. 34; No. 97 of 1990 s. 16; No. 14 of 1996 s. 4; No. 23 of 1996 s. 50; No. 81 of 1996 s. 153(1); No. 31 of 1997 s. 86(3); No. 58 of 1999 s. 68; No. 59 of 1999 s. 5.]

20AA.Endorsement of approval upon diagram or plan of survey

(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)submit to the Commission in the prescribed 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,

the Commission shall endorse its approval on the diagram or plan of survey.

(3)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.

[Section 20AA inserted by No. 59 of 1999 s. 6.]

20A.Pedestrian accessways, rights‑of‑way and certain reserves to vest in Crown

(1)When the Commission has approved, under this Act, a subdivision of land subject to the condition that certain portions of that land

shown on a diagram or plan of survey relating to the subdivision

shall vest in the Crown for the purpose of conservation or protection of the environment or a waterway, pedestrian accessway, right‑of‑way or reserve for water supply, sewerage, drainage, foreshore management, waterway management, or recreation, if, after section 98 of the Transfer of Land Amendment Act 1996 1 comes into operation, the diagram or plan or subdivision of the land as so approved is received in the Department within the meaning of the Transfer of Land Act 1893 or the Registry of Deeds and is approved for the purposes of the Transfer of Land Act 1893, the Registrar of Titles or the Registrar of Deeds shall, in accordance with the condition, vest in the Crown

any land shown on the diagram or plan as being reserved for the purpose of a waterway, pedestrian accessway, right‑of‑way or reserve for water supply, sewerage, drainage, foreshore management, waterway management, or recreation

without any conveyance, transfer or assignment or the payment of any fee.

(2)The Registrar of Titles or the Registrar of Deeds shall ensure that land vested under subsection (1) is vested —

(a)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(b)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the plan or diagram have been registered under the Transfer of Land Act 1893.

[Section 20A inserted by No. 45 of 1962 s. 4; amended by No. 72 of 1980 s. 9; No. 120 of 1982 s. 11; No. 92 of 1985 s. 10; No. 97 of 1990 s. 17; No. 81 of 1996 s. 153(1); No. 57 of 1997 s. 121(5).]

20B.Savings of certain agreements

(1)Where an agreement to sell or to grant an option to purchase, or to lease or grant or lease and grant a licence to use or occupy any portion of a lot has been entered into without the approval of the Commission to the subdivision of the land comprising that lot having been first obtained, as required by section 20(1), the agreement shall be deemed not to have been entered into in contravention of that subsection, if —

(a)the agreement is made after coming into operation of the Town Planning and Development Act Amendment Act 1967 1;

(b)the agreement is entered into subject to the approval of the Commission to the subdivision of the land being obtained; and

(c)an application for the approval of the Commission to the subdivision is made within a period of 3 months after the date of the agreement,

and nothing in that subsection renders the agreement illegal or void by reason only that the agreement was entered into before the approval of the Commission to the subdivision was obtained.

(2)Without prejudice to the operation of section 20(1)(b), the agreement referred to in subsection (1) has no effect, unless and until the Commission gives its approval to the subdivision so referred to, within a period of 6 months after the date of the agreement or within such further period as is stipulated in that agreement, or in a subsequent agreement, in writing made by all the parties to the first‑mentioned agreement, or when the subsequent agreement is made after the death of any of those parties, by the surviving party or parties and the legal personal representative of any deceased party.

[Section 20B inserted by No. 25 of 1967 s. 3; amended by No. 31 of 1969 s. 3; No. 92 of 1985 s. 10.]

20C.When owner may pay money in lieu of land being set aside for open spaces

(1)Where the Commission has approved a plan of subdivision of land upon condition that portion thereof be set aside and vested in the Crown for parks, recreation grounds or open spaces generally, if the local government in whose district the portion is situated and the Commission approve, the owner of the land may, in lieu thereof, pay to that local government a sum that represents the value of the portion.

(2)All money received by a local government under subsection (1) shall be paid into a separate account of the local government and shall be applied —

(a)for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of subdivision referred to in that subsection is situated;

(b)in repaying any loans raised by the local government for the purchase of any such land; or

(c)with the approval of the Minister, for the improvement or development as parks, recreation grounds or open spaces generally of any land in the said locality vested in or administered by the local government for any of those purposes.

(3)For the purposes of subsection (1), the value of the portion shall be such percentage of the market value of the land of which the portion forms part as the area of the portion bears to the area of that land on the date of the subdivision.

(4)For the purposes of subsection (3), the market value of land —

(a)is the capital sum which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require;

(b)shall be determined, at the cost of the owner of the land, by a licensed valuer agreed upon by the parties or, failing agreement, appointed by the local government; and

(c)shall be so determined —

(i)as at the date of the subdivision;

(ii)on the basis that there are no buildings, fences or other improvements of a like nature on the land;

(iii)on the assumption that any rezoning necessary for the purpose of the subdivision has come into force; and

(iv)taking into account the added value of all other improvements on or appurtenant to the land.

(5)If either the owner of the land or the local government disputes a valuation made under subsection (4), the valuation may be varied by agreement between the parties or the dispute may be settled by such method as they may agree upon.

(6)If after 28 days from the date when both parties have received the valuation the dispute has not been settled or an agreement made as to the method of settlement, either the owner of the land or the local government may refer the dispute for determination by an arbitrator under the Commercial Arbitration Act 1985.

(7)For the purposes of this section —

(a)land is subdivided on the date on which the Commission approves of the plan of subdivision of the land subject to the condition mentioned in subsection (1); and

(b)“licensed valuer” means —

(i)a licensed valuer within the meaning of the Land Valuers Licensing Act 1978;

(ii)the Valuer‑General,

but nothing in subsection (4)(b) or in this paragraph shall be construed as obliging the Valuer‑General to undertake any valuation for the purposes of this section.

[Section 20C inserted by No. 120 of 1982 s. 12(1); amended by No. 92 of 1985 s. 10; No. 109 of 1985 s. 3(1); No. 14 of 1996 s. 4.]

20D.When approval under section 20 deemed to be approval under town planning scheme

When the Commission has approved under this Act a subdivision of any land to which a town planning scheme relates, subject to —

(a)the condition that the applicant for that approval —

(i)cause to be constructed to the satisfaction, and in accordance with the specifications, of the responsible authority a road or roads providing access to, or within;

(ii)make arrangements with the Water Corporation established by the Water Corporation Act 1995 for the provision of water services as defined by that Act to the satisfaction of that Corporation within; or

(iii)cause to be filled or drained or filled and drained to the satisfaction, and in accordance with the specifications, of the responsible authority the whole or any part of,

that land; or

(b)any 2 or all 3 of the conditions referred to in paragraph (a),

that approval shall be deemed to be approval by the responsible authority under the town planning scheme of the development which is, in the opinion of the Commission, necessary or desirable for compliance with the condition or conditions to which the first‑mentioned approval is subject.

[Section 20D inserted by No. 26 of 1986 s. 6; amended by No. 73 of 1995 s. 188.]

21.Certain transfers, etc., to be subject to approval

(1)A transfer, conveyance, lease or mortgage of any land shall not be received or registered in the Department within the meaning of the Transfer of Land Act 1893 or Registry of Deeds unless —

(a)it has been first approved in writing by the Commission; or

(b)the land comprises the whole of one or more lots, or the land comprises part of a lot included in a plan of subdivision that has been approved by the Commission; or

(c)in the case of a lease, it does not contain or purport to contain an option to purchase land other than the whole of one or more lots and —

(i)the term is not more than 10 years (including any option to renew or extend the term);

(ii)paragraph (a) of subsection (1) of section 20 does not apply to the lease by virtue of paragraph (d) of that subsection; or

(iii)the lease is a lease which may be entered into without the approval of the Commission by virtue of section 20(1a).

(2)The Registrar of Titles shall not receive any application from the registered proprietor of any land to create and register in the name of such registered proprietor a certificate of title for a portion of land, not being the whole of one or more lots unless such application has been approved by the Commission.

[Section 21 amended by No. 16 of 1943 s. 2; No. 79 of 1953 s. 7; No. 79 of 1957 s. 3; No. 61 of 1958 s. 7; No. 31 of 1969 s. 4; No. 120 of 1982 s. 13; No. 92 of 1985 s. 10; No. 26 of 1986 s. 7; No. 81 of 1996 s. 153(1) and (2).]

22.Conditions

(1)Every plan or amended plan of subdivision submitted to the Commission for approval, shall be accompanied by 2 copies traced on cloth or such other copy or copies or such duplicate or duplicates as it may determine.

(2)The Commission shall retain one of such copies or duplicates for reference purposes, and shall forward another to the local government for the district in which the land comprised therein is situated.

(3)Every plan shall conform in all respects with the regulations in force in the Department within the meaning of the Transfer of Land Act 1893 and the owner of the land shall supply any additional information required by the Commission as to levels, drainage, nature of soil, physical features, and such other particulars as may be prescribed.

[Section 22 amended by No. 92 of 1985 s. 10; No. 14 of 1996 s. 4; No. 81 of 1996 s. 153(2).]

[23.Repealed by No. 26 of 1986 s. 8(1).]

24.Objections and recommendations

(1)When, in the opinion of the Commission, the plan of subdivision may affect the powers or functions of any local government or public body other than the Commission, or any Government department, the Commission shall forward the plan or a copy thereof to such local government, public body, or Government department, as the case may be, for objections or recommendations.

(2)Any such local government, public body, or Government department receiving such plan or copy thereof shall, within 42 days, forward it to the Commission with —

(a)a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b)in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme applies, advice of any relevant environmental condition to which the assessed scheme is subject.

(3)After receiving a plan or copy and accompanying memorandum and any advice of a relevant environmental condition forwarded to it under subsection (2) and considering any objections or recommendations contained in the memorandum and any such advice the Commission shall approve or refuse to approve the plan or require the applicant for approval to comply with such conditions as the Commission thinks fit to impose before approving the plan.

(4)The Commission is to try to deal with the plan in one of the ways mentioned in subsection (3) within the period of 90 days after the day on which the plan was submitted to the Commission for approval or within such longer period after that day as may be agreed in writing between the Commission and the applicant for approval.

(5)If the Commission under subsection (3) refuses to approve a plan or imposes conditions and the applicant for approval concerned is dissatisfied with any such refusal or condition, that applicant for approval may within 28 days of being notified of that refusal or condition request in writing the Commission to reconsider that refusal or condition.

(6)On receiving a request made under subsection (5), the Commission may by notice in writing served on the person who made that request —

(a)approve the plan; or

(b)alter or revoke the condition,

to which that request relates or refuse that request.

[Section 24 amended by No. 120 of 1982 s. 14; No. 92 of 1985 s. 10; No. 26 of 1986 s. 9; No. 84 of 1994 s. 62; No. 14 of 1996 s. 4; No. 23 of 1996 s. 51; No. 57 of 1997 s. 121(1).]

24A.Applications relating to land in the Swan Valley

(1)Where an application is made to the Commission for approval under section 20 in relation to land in the Swan Valley, unless subsection (6) applies, the Commission is to give full particulars of the application to the Swan Valley Planning Committee.

(2)The Committee, within 42 days after the day on which it receives particulars of an application or within such longer period as the Commission allows, is to give to the Commission its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.

(3)If the Committee fails to give its advice within the time allowed under subsection (2), it is to be taken to have no advice to give on the application.

(4)The Minister may, at the request of the Commission, approve of the Commission disregarding the Committee’s advice in whole or in part in determining the application.

(5)Subject to any approval under subsection (4) the Commission is to determine the application in accordance with the advice of the Committee.

(6)The Committee may determine that any particular class or description of applications for approval under section 20 need not be referred to the Committee for advice under this section and is to notify the Commission of any such determination.

(7)In this section “Swan Valley”, “Swan Valley Planning Committee” and “Committee” have the same meanings as they have in the Swan Valley Planning Act 1995.

[Section 24A inserted by No. 31 of 1995 s. 27.]

25.Encroachments

Where, after the erection of a building on land the property of one owner, it is found that such building encroaches upon land the property of another owner to the extent of not more than one metre, and where the encroaching owner desires to purchase the land upon which the encroachment stands, the Commission shall, upon the application of the owner of the land which is encroached upon, and upon being satisfied that there has not been collusion, but that everything has been done in good faith without intention to evade the law, approve of the necessary subdivision or transfer.

[Section 25 amended by No. 94 of 1972 s. 4(1) (as amended by No. 19 of 1973); No. 92 of 1985 s. 8.]

26.Reviews

(1)(a)An applicant may apply to the State Administrative Tribunal for a review, in accordance with Part V, of —

(i)the refusal of the Commission to approve the plan, application for title, transfer, conveyance, lease, licence to use and occupy or mortgage for which the applicant sought approval;

(ii)the conditions affixed to the granting of approval of the plan, application for title, transfer, conveyance, lease, licence to use and occupy or mortgage for which the applicant sought approval; or

(iii)a decision of the Commission made under section 24(6) in respect of a request made by the applicant.

(aa)If at any time after the end of the decision period the Commission has not approved, refused to approve or imposed conditions on the approval of a plan, the applicant for approval may give a written notice of default to the Commission.

(ab)Where a notice of default is given to the Commission under paragraph (aa), the applicant for approval may apply to the State Administrative Tribunal for a review, in accordance with Part V, as if the Commission had refused to approve the plan on the day on which the notice of default was given to it.

(ac)In paragraph (aa) “decision period” means the period of 90 days specified in section 24(4) or any longer period that has been agreed between the Commission and the applicant under section 24(4).

(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 apply to the State Administrative Tribunal for a review, in accordance with Part V, of the decision of the Commission.

[(b)deleted]

(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 application under subsection (1)(ad) of this section may include an application for a review of that condition.

[Section 26 amended by No. 16 of 1943 s. 3; No. 79 of 1953 s. 8; No. 79 of 1957 s. 4; No. 61 of 1958 s. 8; No. 120 of 1982 s. 15(1); No. 92 of 1985 s. 10; No. 26 of 1986 s. 10; No. 84 of 1994 s. 63; No. 59 of 1999 s. 7; No. 24 of 2002 s. 10; No. 55 of 2004 s. 1199.]

27.Offences under this Part

(1)Any person who contravenes or fails to comply with section 20(1) is guilty of an offence.

Penalty: $50 000, and a daily penalty of $5 000.

[(2)repealed]

[Section 27 inserted by No. 89 of 1979 s. 5; amended by No. 84 of 1994 s. 64.]

Part IV — Miscellaneous

27A.Easements

(1)Where —

(a)a plan or diagram of subdivision approved by the Commission after section 98 of the Transfer of Land Amendment Act 1996 1 comes into operation is received at the Department within the meaning of the Transfer of Land Act 1893 or the Registry of Deeds; and

(b)it is shown on the plan or diagram that any land comprised therein is subject or intended to be subject to an easement in favour of —

(i)the local government in whose district the land is situated, for the purpose of drainage or access to drainage works;

(ii)the Water Corporation established by the Water Corporation Act 1995, for the purpose of water supply, sewerage, drainage or access to water supply, sewerage or drainage works;

[(iii)deleted]

(iv)the holder of a distribution licence or integrated regional licence as defined in section 3 of the Electricity Industry Act 2004 for the purpose of the supply of electricity from or access to a distribution system as defined in that section;

(v)the holder of a distribution licence under the Energy Coordination Act 1994 for the purpose of the supply of gas, or access to gas supply works, under the authority of that licence,

the land becomes subject to an easement in favour of the person or authority mentioned on the plan or diagram for the purpose mentioned on the plan or diagram —

(c)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(d)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the plan or diagram have been registered under the Transfer of Land Act 1893.

(2)An easement in favour of a person or authority for any purpose, to which any land is subject by virtue of this section, shall give that person or authority such rights, powers and privileges as are prescribed under this section in respect of an easement in favour of that person or authority for that purpose.

(3)If, by virtue of this section, any land is subject to an easement, the Registrar of Titles, or the Registrar of Deeds, as the case requires, shall make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence that the land is so subject, and, for the purpose of making any such entry or endorsement or registering any such memorial, it shall be sufficient description of the easement if reference is made to this section.

(4)Where, by virtue of this section, any land is subject to an easement in favour of a person or authority for any purpose, the Registrar of Titles or Registrar of Deeds as the case requires, may, by order made —

(a)upon application in writing by the person or authority; and

(b)with the consent in writing of all persons having a registered interest in the land,

vary or extinguish the easement and upon such variation or extinction the Registrar of Titles or Registrar of Deeds, as the case requires, shall make all such entries or endorsements, or register any such memorial, as may be necessary or proper to evidence the variation or extinction.

(5)The Governor may make regulations —

(a)prescribing the rights, powers and privileges given to a specified person or authority where an easement for a specified purpose has effect in favour of that person or authority by virtue of this section;

(b)prescribing any other matter necessary or convenient for giving effect to this section.

(6)In subsection (5) “specified” means specified in regulations made pursuant to that subsection.

[Section 27A inserted by No. 72 of 1980 s. 10; amended by No. 92 of 1985 s. 10; No. 89 of 1994 s. 109; No. 73 of 1995 s. 188; No. 14 of 1996 s. 4; No. 81 of 1996 s. 153(1); No. 57 of 1997 s. 121(5); No. 58 of 1999 s. 86; No. 24 of 2000 s. 14(13); No. 18 of 2005 s. 139.]

28.Dedication to public use of land acquired to extend or improve streets

(1)When a portion of land is transferred to the Crown or a local government for the purpose of extending or adding to a public street or road, such transferred portion shall be deemed to be dedicated to the public use, and to form part of the street or road, as and from the date of registration of the transfer in the Department within the meaning of the Transfer of Land Act 1893.

(2)When a street or road corner shown on any plan registered in the Department within the meaning of the Transfer of Land Act 1893 or in the Department of Land Administration 2 is subsequently rounded off or truncated, the portion of land so excised shall form part of the public street or road, and from the date of approval of the Inspector of Plans and Surveys is hereby declared to be dedicated to the public use, and shall be under the control of the local government.

(3)(a)All land on a plan or diagram of subdivision deposited at the Department within the meaning of the Transfer of Land Act 1893 or the Registry of Deeds that is shown as road widening or is for the purpose of extending or adding to a public street or road is hereby declared —

(i)to form part of the public street or road; and

(ii)to be dedicated to the public use.

(b)The provisions of paragraph (a) —

(i)are deemed to have operated —

(A)in the case of a plan or diagram of subdivision deposited before the coming into operation of the Local Government Act Amendment Act (No. 4) 1969 5, on and from the date of the registration of a transfer of a lot on the plan or diagram at the Office of Titles or the Registry of Deeds; and

(B)in the case of a plan or diagram of subdivision deposited after the coming into operation of the Local Government Act Amendment Act (No. 4) 1969 5 but before the coming into operation of the Town Planning and Development Act Amendment Act 1974 1, on and from the date of the approval of the Inspector of Plans and Surveys;

(ii)operate, in the case of a plan or diagram of subdivision deposited after the coming into operation of the Town Planning and Development Act Amendment Act 1974 1, on and from the date of approval of the Inspector of Plans and Surveys;

(iii)operate, in the case of a plan or diagram of subdivision deposited after section 98 of the Transfer of Land Amendment Act 1996 1 comes into operation —

(I)in the case of a plan lodged for registration under the Strata Titles Act 1985, at the time the Registrar of Titles registers the plan under that Act; and

(II)in any other case, at the time the new certificate, or if more than one, all the new certificates, for the land the subject of the plan or diagram have been registered under the Transfer of Land Act 1893.

[Section 28 amended by No. 14 of 1974 s. 5; No. 14 of 1996 s. 4; No. 81 of 1996 s. 153(1) and (2); No. 57 of 1997 s. 121(5).]

28A.Subdivider may recover portion of road costs from subsequent subdivider

(1)Where after the coming into operation of section 16 of the Town Planning and Development Amendment Act 1982 1 (in this section referred to as “the amending Act”) —

(a)a person (in this section called “the later subdivider”) having after that coming into operation subdivided land —

(i)a lot or lots of that subdivision has or have a common boundary with; or

(ii)a road of that subdivision (in this subsection called “a subdivisional road”) joins,

an existing road;

(b)a person (in this section called “the original subdivider”) who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing the existing road; and

(c)the later subdivider did not contribute to that cost,

the original subdivider may, in accordance with this section, recover from the later subdivider a sum representing one‑half of so much of the cost as was borne by the original subdivider of providing the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, referred to in paragraph (a).

(2)An amount payable under subsection (1) may be recovered by the original subdivider in a court of competent jurisdiction as a debt due to him by the later subdivider; but no proceedings therefor shall be commenced after the expiration of 6 years from the date of the later subdivision.

(3)In this section reference to the cost of providing a road is a reference to the aggregate of —

(a)the value, as at the date of the subdivision referred to in subsection (1)(b), of the portion of the land provided as a road, being such percentage of the market value of the total area of land comprised in that subdivision as the area of the road bears to that total area as at the date of that subdivision; and

(b)the cost of designing and carrying out the following works —

(i)the survey of the land provided as a road;

(ii)the formation, preparation, priming and sealing of the road; and

(iii)the provision of kerbing, drainage and service ducts in connection with the road.

(4)For the purposes of this section —

(a)land is subdivided on the date on which, any conditions specified by the Commission having been complied with, the approval of the Commission is endorsed on the diagram or plan of survey relating to the subdivision of the land, as provided in regulations made under this Act; and

(b)the market value of land is the capital sum, determined in accordance with section 20C(4)(c)(ii), (iii) and (iv), which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require.

[Section 28A inserted by No. 120 of 1982 s. 16; amended by No. 92 of 1985 s. 10; No. 26 of 1986 s. 11; No. 55 of 2004 s. 1200.]

29.Fees

The Minister may prescribe a set or sets of fees to be charged in respect of anything to be done by the Commission under or in pursuance of this Act, and such fees shall be payable by the person at whose request or on whose application such matter is done.

[Section 29 amended by No. 92 of 1985 s. 9.]

[30.Repealed by No. 64 of 1961 s. 7.]

31.Uniform general local laws, etc.

(1)The Governor may make, and publish in the Gazette, uniform general local laws, or separate sets of general local laws adapted for areas of any special character, for carrying into effect all or any of the purposes mentioned in the Second Schedule, and such local laws shall have the force of law in the district of any local government which the Governor may from time to time prescribe, and shall supersede the local laws made for the same or a similar purpose by the local government of the district so prescribed; and the Governor may at any time repeal any by‑law made under section 248 of the Local Government Act 1960 6.

(2)When any by‑law made under section 248 of the Local Government Act 1960 6, or under the last preceding subsection of this section, is inconsistent with any town planning scheme approved before or after the making of such by‑law, and having effect in the district, or in part of the district, in which such by‑law is in force, then to the extent of such inconsistency, and in the part of the district in which such scheme has effect, the provisions of such scheme shall prevail.

(2a)In subsection (2) reference to a town planning scheme includes a reference to a redevelopment scheme approved under Part 4 of the East Perth Redevelopment Act 1991, under Part 4 of the Subiaco Redevelopment Act 1994, under Part 4 of the Midland Redevelopment Act 1999 or under Part 4 of the Armadale Redevelopment Act 2001 or a master plan approved under Part 3 of the Hope Valley‑Wattleup Redevelopment Act 2000.

(3)Where any property is injuriously affected or increased in value by the operation of any by‑law made under section 248 of the Local Government Act 1960 6, or under subsection (1), the provisions of section 11 or 12, shall apply mutatis mutandis as if the by‑law were a scheme made under this Act, and as if the resolution passing a by‑law were a resolution to prepare or adopt a scheme.

[Section 31 amended by No. 29 of 1947 s. 5; No. 64 of 1961 s. 8; No. 62 of 1991 s. 59; No. 35 of 1994 s. 67; No. 14 of 1996 s. 4; No. 38 of 1999 s. 78(3); No. 77 of 2000 s. 39(3); No. 25 of 2001 s. 69.]

32.Savings

Nothing in this Act shall be deemed to interfere with the right of Her Majesty, or the Governor, or the Government of the State or a local government to undertake, construct, or provide any public work, and to take land for the purposes of that work: Provided that —

(a)so far as, in the interests of the public, it is reasonably possible, every such work shall be undertaken, constructed, or provided, and all land taken for the purpose of such work shall be taken, in such a manner as to be in keeping with the design and intent of every town planning scheme, and so as not to destroy the amenity of any town planning scheme made and approved under this Act and having effect in the district where, and at the time when, such work is undertaken, constructed, or provided, or such land is taken; and

(b)the responsible authority shall be consulted at the time when a proposal for any public work, or for the taking of land therefor, is being formulated to ensure that the undertaking, construction, or provision of, or the taking of land for, the work will comply with paragraph (a).

[Section 32 amended by No. 63 of 1955 s. 4; No. 120 of 1982 s. 17; No. 32 of 1983 s. 6; No. 14 of 1996 s. 4.]

33.Power to suspend the operation of certain provisions of other Acts

Where the carrying out of any provision of an approved scheme would conflict with any provisions, limitations, or conditions of or prescribed by any Act, the responsible authority may apply to the Governor for an order modifying or suspending the provisions of that Act, so far as may be necessary to enable effect to be given to the scheme; and thereupon the Governor may, in respect of that scheme but not otherwise, make an order accordingly for the suspension or modification of such provisions or any of them, subject to such conditions and limitations as he thinks fit to impose:

Provided that an Order in Council purporting to modify or suspend any provisions of any Act shall not take effect unless and until it has been approved by a resolution of both Houses of Parliament.

33A.Compliance with local government regulations

(1)If there is any inconsistency between a town planning scheme and a regulation made under section 433A of the Local Government (Miscellaneous Provisions) Act 1960, the town planning scheme prevails to the extent of the inconsistency.

(2)In the exercise of any power conferred on it by a town planning scheme, a local government is not obliged to have regard to any regulations made under section 433A of the Local Government (Miscellaneous Provisions) Act 1960.

[Section 33A inserted by No. 14 of 1996 s. 4.]

33B.Local government fees and charges

(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

(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)impose any fee or charge for provision of a 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).

(4)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.

[Section 33B inserted by No. 59 of 1999 s. 8.]

34.Regulations

Subject to the regulations made by the Minister under the preceding provisions of this Act, the Governor may make such further regulations as are necessary to give effect to this Act and in particular for prescribing penalties not exceeding $5 000 for offences against the regulations.

[Section 34 amended by No. 98 of 1965 s. 7; No. 113 of 1965 s. 8(1); No. 84 of 1994 s. 65.]

35.Crown bound

Except where otherwise provided, this Act shall bind the Crown.

Part V — Applications for review

[Heading inserted by No. 55 of 2004 s. 1201.]

Division 1 — Establishment of Tribunal

[Heading inserted by No. 24 of 2002 s. 11.]

36.When this Part applies

(1)This Part applies if this Act or a planning scheme or any other written law gives the State Administrative Tribunal jurisdiction to carry out a review in accordance with this Part.

(2)Even if a planning scheme does not expressly give a person a right to apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision or matter, the planning scheme is taken to give that right if —

(a)the planning scheme is expressed as conferring on the person a right to appeal against the decision, or to refer the matter, under Part V of this Act; or

(b)the planning scheme is expressed as conferring on the person a right to appeal or apply for review in respect of the matter and the matter involves the exercise by the responsible authority of a discretionary power.

(3)Subsection (2) applies even if the planning scheme provides for the appeal, referral or application to be made otherwise than to the State Administrative Tribunal or, in the circumstances described in paragraph (b) of that subsection, otherwise than in accordance with Part V of this Act.

(4)A provision in a planning scheme of the kind described in subsection (2)(a) or (b) has no effect other than the effect given to that provision by subsection (2).

(5)In subsections (2), (3) and (4) —

“planning scheme” means —

(a)a town planning scheme in force under this Act;

(b)the Metropolitan Region Scheme;

(c)a regional planning scheme; or

(d)any other instrument that the regulations specify to be a planning scheme for the purposes of subsection (2).

[Section 36 inserted by No. 55 of 2004 s. 1202.]

37.Terms used in this Part

In this Part, unless the contrary intention appears —

“ordinary member” has the meaning given to that term in section 3(1) of the State Administrative Tribunal Act 2004;

“party” has the meaning given to that term in section 36 of the State Administrative Tribunal Act 2004;

“President” means the President of the State Administrative Tribunal;

“regional planning scheme” has the meaning given to that term in section 3 of the Western Australian Planning Commission Act 1985.

[Section 37 inserted by No. 55 of 2004 s. 1202.]

38.Qualifications of members

(1)The member constituting the State Administrative Tribunal, or each of them if there is more than one, is to be a person who has knowledge of and experience in one or more of the fields of urban and regional planning, architecture and urban design, engineering, surveying, environmental science, planning law, heritage matters, public administration, commerce and industry.

[(2)repealed]

(3)If the application is for a review of a decision referred to in section 8B or a decision relating to an environmental condition, the member constituting the State Administrative Tribunal, or at least one of them if there is more than one, is to be a person who has knowledge of and experience in the field of environmental science.

(4)Unless this subsection does not apply because of subsection (5), the State Administrative Tribunal is to be constituted by an ordinary member sitting alone when dealing with —

(a)an application for a review of —

(i)the determination of, or conditions imposed in respect of, a planning application to commence a development of a value of less than $250 000 or such other amount as is prescribed by the regulations;

(ii)the determination of, or conditions imposed in respect of, a planning application to commence a development of a single house on a single lot of a value that is less than $500 000 or such other amount as is prescribed by the regulations, or any development ancillary to that development; or

(iii)the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots;

(b)an application that the applicant, with the agreement of each other party, has elected at the time of making the application to have determined by an ordinary member sitting alone.

(5)Subsection (4) does not apply if the President is of the opinion that the application is likely to raise complex or significant planning issues.

[Section 38 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1203.]

[39.Repealed by No. 55 of 2004 s. 1204.]

[Division 2 and 3 (s. 40‑46) repealed by No. 55 of 2004 s. 1205.]

[Heading deleted by No. 55 of 2004 s. 1206.]

[47‑52.Repealed by No. 55 of 2004 s. 1207.]

[52A.Repealed by No. 24 of 2002 s. 11.]

[53‑54.Repealed by No. 55 of 2004 s. 1207.]

[54A‑54G.Repealed by No. 24 of 2002 s. 11.]

[55‑57.Repealed by No. 55 of 2004 s. 1207.]

58.Representation

[(1), (2)repealed]

(3)In the case of an application described in section 38(4)(a), the applicant may, at the time the application is made, elect that no party to the application is to be represented by a legal practitioner.

(4)If an applicant makes an election under subsection (3), no party to the application is entitled to be represented by a legal practitioner unless —

(a)the President, being of the opinion that the application is likely to raise complex or significant planning issues, directs that the parties may be so represented;

(b)the President, having regard to whether the application involves a question of law, directs in any other case that the parties may be so represented;

(c)the applicant is a legal practitioner; or

(d)the applicant withdraws the election.

[Section 58 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1208.]

[59.Repealed by No. 55 of 2004 s. 1209.]

60.Tribunal to invite submissions from Minister for the Environment before determining certain applications for review

Before determining an application for the review of a decision referred to in section 8B or a decision relating to an environmental condition, the State Administrative Tribunal is to invite the Minister for the Environment to make a submission in respect of that application.

[Section 60 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1210.]

61.Tribunal to have regard to certain matters

(1)In determining any application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including —

(a)any approved statement of planning policy prepared under section 5AA; and

(b)any management programme for the time being in force under Part 3 of the Swan River Trust Act 1988, which may affect the subject matter of the application.

(2)In the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a statement of planning policy provides for the conservation of that land, the State Administrative Tribunal —

(a)is to refer the matter to the Heritage Council for advice;

(b)may receive or hear submissions made on behalf of the Heritage Council;

(c)may join the Heritage Council as a party to the application; and

(d)is to have due regard to the objects of the Heritage of Western Australia Act 1990.

(3)In determining an application for a review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.

[Section 61 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1211.]

62.Submissions from persons who are not parties

The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.

[Section 62 inserted by No. 55 of 2004 s. 1212.]

63.Exclusion of powers to join parties

Section 38 of the State Administrative Tribunal Act 2004 does not apply in a proceeding for a review in accordance with this Part.

[Section 63 inserted by No. 55 of 2004 s. 1213.]

[64, 65.Repealed by No. 55 of 2004 s. 1213.]

66.Review by President

(1)The State Administrative Tribunal constituted by the President may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter involving a question of law that was made by the State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004.

(2)The State Administrative Tribunal constituted by the President may —

(a)affirm the direction, determination or order; or

(b)revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter.

(3)An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations or rules, by a party within one month after the direction, determination or order is given to the party.

(4)The President is not to review a direction, determination or order upon a matter involving a question of law if the President has given an opinion on that question of law.

(5)A review by the State Administrative Tribunal —

(a)of its own motion is not to be made later than one month after the direction, determination or order is given to the party; or

(b)on the application of a party is not to be made later than one month after the application is made.

[Section 66 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1214.]

[67, 68.Repealed by No. 55 of 2004 s. 1215.]

[Heading deleted by No. 55 of 2004 s. 1216.]

69.Minister may make submissions

(1)Where it appears to the State Administrative Tribunal that an application 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 application is situated the State Administrative Tribunal may invite the Minister to make a submission as to the matters the Minister considers to be relevant to the issues before the State Administrative Tribunal.

(2)Where it appears to the Minister that an application 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 application is situated the Minister may make a submission as to the matters which the Minister considers to be relevant to the issues before the State Administrative Tribunal.

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

(4)When a written submission has been made by the Minister, a copy is to be given to the parties who are in any case to be given an opportunity of making further submissions to the State Administrative Tribunal.

(5)In this section —

(a)where the area in which the land the subject of the application is situated includes or comprises land or waters that are within or abut the management area within the meaning of the Swan River Trust Act 1988, “Minister” includes the Minister to whom the administration of that Act is committed; and

(b)where the area in which the land the subject of the application is situated includes, or is included in, or abuts any land or water to which an entry in the Register maintained under section 46 of the Heritage of Western Australia Act 1990 relates, “Minister” includes the Minister to whom the administration of that Act is committed.

[Section 69 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1217.]

70.Minister may call in an application

(1)This section applies to an application if the Minister considers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister.

(2)The Minister may direct —

(a)the President to refer an application to which this section applies to the Minister for determination; or

(b)the State Administrative Tribunal to hear the application but, without determining it, refer it with recommendations to the Minister for determination.

(3)The Minister cannot give a direction under subsection (2) —

(a)in respect of an application made under the Heritage of Western Australia Act 1990;

(b)more than 14 days after the application was made to the State Administrative Tribunal; or

(c)after a final determination has been made in relation to the application.

(4)The Minister, within 14 days after a direction is given, is to cause a copy of it to be published in the Gazette and, as soon as is practicable, is to cause a copy of it to be laid before, or transmitted in accordance with section 72(1) to the Clerk of, each House of Parliament.

(5)If the Minister gives a direction under subsection (2)(a), each party to the proceeding may present the case of that party to the Minister.

(6)The Minister is to have regard to the submissions of the parties and may have regard to any other submission received by the Minister.

(7)A copy or transcript of any submission to which the Minister has regard is to be —

(a)given to each party; and

(b)published in the manner prescribed by regulations made under section 34.

[Section 70 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1218.]

71.Determination of application by Minister

(1)In determining an application the Minister is not limited to planning considerations but may make the determination having regard to any other matter affecting the public interest.

(2)When the Minister determines an application that determination has effect according to its tenor.

(3)Where an application is referred to the Minister under section 70(2)(b) the executive officer of the State Administrative Tribunal is to —

(a)give a copy of the recommendations that accompanied the referral to each party within a reasonable time after the referral; and

(b)make a copy of the recommendations available during office hours for inspection by any person without charge.

(4)The Minister is to —

(a)give to each party written reasons for the determination of the Minister on the application;

(b)as soon as is practicable, cause a copy of those reasons to be laid before each House of Parliament;

(c)upon payment of a fee determined in the manner prescribed by the regulations, supply a copy of those reasons to any other person.

(5)The decision of the Minister is final.

[Section 71 inserted by No. 24 of 2002 s. 11; amended by No. 55 of 2004 s. 1219.]

[Heading deleted by No. 55 of 2004 s. 1220.]

72.Laying before House of Parliament that is not sitting

(1)If section 70(4) requires the Minister, as soon as is practicable, to cause a copy of a direction to be laid before, or transmitted in accordance with this subsection to the Clerk of, each House of Parliament and —

(a)at the commencement of the period of 14 days after the day on which the direction is given, a House of Parliament is not sitting; and

(b)the Minister is of the opinion that the House will not sit during that period,

the Minister is to transmit a copy of the direction to the Clerk of that House.

(2)A copy of a direction transmitted to the Clerk of a House is to be regarded as having been laid before that House.

(3)The laying of a copy of a direction that is to be regarded as having occurred under subsection (2) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

[Section 72 inserted by No. 55 of 2004 s. 1221.]

[73‑75.Repealed by No. 55 of 2004 s. 1222.]

The First Schedule

(sections 6 and 8)

Matters which may be dealt with by general provisions

1.Streets, roads, and rights‑of‑way generally including probable new routes and junctions; and particularly the levels alteration, widening, closing, diverting, raising, lowering, aligning, realigning, grading, regrading, classifying, reclassifying, naming, renaming, constructing, reconstructing, maintaining, repairing, draining, redraining, sewering, resewering, beautifying, gardening, and tree planting of streets, roads and rights‑of‑way, the junctions and intersections of streets, roads, rights‑of‑way and the excision of their corners, the laying of sewers, pipes and wires, and the placing of lamps, lamp posts, tramway poles, monuments, fences, gateways, public signs, notices, and other objects in or on land adjacent to streets, roads, and rights‑of‑way.

2.Parks and open spaces generally; and particularly public reserves, gardens, playgrounds, sports and recreation grounds, public and private camping grounds and reserves, drill grounds, aviation grounds, public squares and other open public spaces, and fences, railings, monuments, statues, buildings, and other erections or works on parks, open spaces, public squares, and other public places.

3.Gardens and park spaces for the use of particular parts of the area, and park ways for general use.

4.Public conveniences generally; and particularly churches, schools, educational and recreational institutions, libraries, public buildings, theatres and other places of public entertainment, fountains, public comfort stations, and refreshment kiosks and other buildings.

5.The subdivision of land generally; and in particular any requirements deemed necessary —

(a)in regard to new subdivisions or re‑subdivisions of any land (or maps, plans, sections, or particulars thereof) contained within the scheme area, including drainage, size and shape of allotments (or separate parcels of land), and access thereto;

(b)for the classification of, and prescribing and determining, notwithstanding the provisions of the Local Government Act 1995, any requirements in regard to the length or width of any street, road or right‑of‑way according to the use to which such street, road or right‑of‑way is likely to be put, or according to the physical features of the land, together with the design, method of construction, and cost of completion or alignment of any street, road, or right‑of‑way; and

(c)for dealing with or disposing of land acquired under this Act by a responsible authority, or by any local government or other public body or any person.

6.The replanning and reconstruction of the scheme area, or any part thereof, including any provisions necessary for —

(a)the pooling of the lands of several owners (or any lands, roads, streets, or rights‑of‑way adjacent or near thereto);

(b)the redivision of such land among such owners or among such other persons as may be provided for in the scheme;

(c)providing and making new roads, streets or rights‑of‑way;

(d)adjusting and altering the boundaries of any such lands, roads, streets, or rights‑of‑way;

(e)effecting such exchanges of land, or cancellation of existing subdivisions as may be necessary or convenient for the purposes aforesaid;

(f)adjustment of rights between such owners or other persons interested in such lands, roads, streets, or rights‑of‑way;

(g)the vesting of such lands, roads, streets, or rights‑of‑way subject or not subject to any rights or trusts; and any other provisions necessary for giving effect to the purposes aforesaid.

7.Buildings generally, and in particular —

(a)the height, location, purpose, dimensions or the general character of buildings;

(b)the special control and regulation of buildings;

(c)the demolition or alteration of buildings;

(d)the prevention of the erection of ugly buildings which may destroy local amenities;

(e)the prohibition or regulation of the placing or subject to section 11 or a reasonable time limit, the continuance of advertisements, advertising hoardings, illuminated signs and other advertising devices and erections, or other disfigurements;

(f)the placing of new public buildings;

(g)harmony in the exterior designs of buildings;

(h)in the case of buildings to be used for business or industry, the provision of accommodation or the location of the building on the site for the purpose of loading, unloading, servicing, parking or fuelling vehicles, with a view to preventing the obstruction of traffic on public streets or roads.

8.Limiting the number of buildings, rooms, dwelling units, or other accommodation units to the hectare generally or in any particular locality, or on any subdivision, allotment, or parcel of land, particularly or generally and the extent to which each subdivision, allotment, or parcel of land is to be built upon, and providing for adequate light and air to the windows of each house, and prescribing other requirements so far as is reasonable for the purpose of securing the convenience and amenity of the scheme area and proper sanitary and hygienic conditions in connection with any building therein.

9.The making, fixing, and altering and ascertaining of building lines irrespective of the width or alignment of any street, road, or right‑of‑way, to secure as far as practicable, having regard to the physical features of the site and the depth of the existing subdivisions, that the distance between the buildings to be erected, or buildings likely to be reconstructed, on opposite sides of any street, road or right‑of‑way, shall not be less than that fixed by the scheme, according to the prospective traffic requirements of such street, road or right‑of‑way; and the making, fixing, and altering building lines generally and providing that buildings generally or a building of any specified class shall not be built nearer to a building line or an ocean or waterway than is prescribed in a town planning scheme.

10.Classification or zoning of the scheme area for various types, kinds or classes of residences, flats, trade, business, industry, commercial, recreation, cultural heritage conservation, educational or other public or institutional purposes, and including areas for agricultural or rural use or for protection of the environment or landscape or to provide for waterway development and for any other general or particular purposes, whether of the same class or kind as the class or kind before enumerated or not and fixing the sites or areas for any of the purposes included in this Schedule and prohibiting in any of these zones or classification any building or use of land of or for a general or particular nature or purpose.

11.Conservation of the natural beauties of the area, including lakes and other inland waters, banks of rivers, foreshores of harbours, and other parts of the sea, hill slopes and summits, and valleys.

11A.(1)The preservation of —

(a)particular trees;

(b)trees of a particular species;

(c)trees of a particular height or girth or both; or

(d)trees belonging to a particular group of trees.

(2)The planting or replanting of trees of a particular species.

(3)A local government may in a town planning scheme declare shrubs or other perennial plants of a species specified in that declaration to be trees for the purposes of the town planning scheme.

(4)In subclauses (1) and (2) —

“trees”, in relation to a town planning scheme in which there is a declaration made under subclause (3), includes shrubs or other perennial plants of the species specified in that declaration.

12.The preservation of places and objects of cultural heritage significance or other scientific interest.

13.Probable routes for railways, tramways, and canals and probable sites for bridges, docks, harbours, piers, quarries, and lighting, water, drainage and sewerage, or any other private or public work or undertaking authorised by statute.

14.Works ancillary to or consequent on the scheme.

15.The extinction or variation of any right‑of‑way or easement, public or private, or of any restrictive covenant or covenants affecting land.

16.Power of entry and inspection.

17.Facilities for the operation of public utilities and trading undertakings of any local government or authorised public body, or of any society or public utility.

18.The exercise of the power of the responsible authority to acquire land or buildings, or to make any agreement or proposal in respect thereto.

19.Power to limit the height, at the corner of any street, road, right‑of‑way, of any wall, fence, hedge, tree or shrub or other obstruction, not being an authorised building.

20.Power of the responsible authority to remove, alter, or demolish any building which obstructs the observance or carrying out of the scheme.

21.Power of a responsible authority to make agreements with owners and of owners to make agreements with one another.

22.Cooperation of the responsible authority and the owners of land and cooperation between owners of land.

23.Cooperation between the responsible authority and the Government of the State or the Commonwealth, or any public or statutory bodies or authorities, including local governments.

24.The recovery of expenses incurred in giving effect to the scheme.

25.The carrying out and completion of the scheme generally, and particularly the time and manner in which, and the persons and authorities by whom or by which the scheme, or any part thereof, shall be carried out and completed and its observance ensured.

26.Any matter with respect to which under this Act an agreement relating to a scheme may be made.

27.Limitation of time for the operation of a scheme.

27A.Where a discretionary power is vested by a scheme in the responsible authority, the conferral on a person aggrieved by the exercise of that power of a right to apply to the State Administrative Tribunal for a review of the exercise of the power.

28.Any matter necessary or incidental to town planning or housing.

The mention of particular matters in this Schedule shall not be held to prejudice or affect the generality of any other matter.

[The First Schedule amended by No. 41 of 1944 s. 2; No. 79 of 1953 s. 9; No. 45 of 1962 s. 5; No. 94 of 1972 (as amended) s. 4(1); No. 120 of 1982 s. 23(1); No. 26 of 1986 s. 12; No. 97 of 1990 s. 22; No. 84 of 1994 s. 67; No. 14 of 1996 s. 4; No. 57 of 1997 s. 121(7); No. 24 of 2002 s. 13; No. 55 of 2004 s. 1223.]

The Second Schedule

(section 31)

Matters for which town planning local laws may be made by a local government

[Heading amended by No. 14 of 1996 s. 4.]

1.Purchasing or reserving land for new main thoroughfares which it is desired to keep free of buildings by agreement between the owners of such land and the responsible authority or by cooperation between 2 or more local governments with regard to the lines, widths and direction of thoroughfares which connect adjacent parts of their respective areas.

2.Limiting the number of buildings, rooms, dwelling units or other accommodation units to the hectare generally or in any particular locality, or on any subdivision, allotment or parcel of land, particularly or generally, and the extent to which each subdivision, allotment or parcel of land is to be built upon, and providing for adequate light and air to the windows of each house, and prescribing other requirements so far as is reasonable for the purpose of securing the convenience or amenity of the area to which local laws apply, and proper sanitary and hygienic conditions in connection with any buildings therein.

3.Classification or zoning reclassifying or re‑zoning the area for residence, flats, trade, business, industry, commercial recreation, educational or other public or institutional purposes, and including areas for agricultural or rural use and for any other general or particular purposes whether of the same class or kind as the class or kind before enumerated or not, and fixing the sites or areas for any of the purposes included in this Schedule and prohibiting in any of these zones or classification any building or use of land of or for a general or particular nature or purpose.

4.Prohibiting any district or part of it from being used for any purpose other than that for which it has been classified.

5.Prescribing the height, location, purpose and dimensions or the general character of buildings to be erected or reconstructed as far as is reasonable for securing proper sanitary and hygienic conditions, convenience, or amenity of the area to which the town planning local laws are to apply.

6.Prohibiting the carrying on of any noxious trades or manufactures, or the erection or use of any buildings without adequate sanitary arrangements, or prohibiting or regulating the erection and use of buildings, advertisement hoardings, or structures for advertising purposes which are such as to be injurious to the amenity or natural beauty of the area to which the town planning local laws are to apply.

7.Prescribing and determining any requirements deemed necessary in regard to new subdivisions or re‑subdivisions of any land (or maps, plans, sections, or particulars thereof) contained within the area to which it is intended that the town planning local laws shall apply, including drainage, size and shape of allotments (or separate parcels of land) and access thereto; also for the classification of and the prescribing and determining of any requirements in regard to the length or width of any street, road, or right‑of‑way according to the use such street, road, or right‑of‑way is likely to be put, or according to the physical features of the land, together with the design, method of construction, and completion of alignment, of any street, road or right‑of‑way.

8.The making, fixing, altering and ascertaining of building lines irrespective of the width or alignment of any street, road, or right‑of‑way, to secure as far as practicable, having regard to the physical features of the site and the depths of the existing subdivisions of land, that the distance between the buildings to be erected, or buildings likely to be reconstructed on the opposite sides of any street, road, or right‑of‑way, shall be not less than that fixed by the local laws according to the prospective traffic requirements of such street, road or right‑of‑way, and the making, fixing and altering building lines generally and providing that buildings generally or a building of any specified class shall not be built nearer to a building line or an ocean or waterway than is prescribed in a town planning local law.

9.Limiting of open spaces, recreation grounds, or sites for public buildings, by purchase or agreement between owners of lands and the local government.

10.Limiting the height, at the corner of any street, road, or right‑of‑way of any wall, fence, hedge, tree, or shrub or other obstruction not being an authorised building.

11.Providing for the authority or authorities responsible for carrying the town planning local laws into effect and enforcing their observance.

[The Second Schedule amended by No. 41 of 1944 s. 3; No. 79 of 1953 s. 10; No. 61 of 1958 s. 9; No. 64 of 1961 s. 9; No. 94 of 1972 (as amended) s. 4(1); No. 14 of 1996 s. 4.]

[Schedules 3 and 4 repealed by No. 55 of 2004 s. 1224.]

Notes

1This is a compilation of the Town Planning and Development Act 1928 and includes the amendments made by the other written laws referred to in the following table 1a, 7-11. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Town Planning and Development Act 1928	39 of 1928	28 Dec 1928	1 Nov 1929 (see s. 1 and Gazette 1 Nov 1929 p. 2432)
Town Planning and Development Act Amendment Act 1943	16 of 1943	20 Oct 1943	20 Oct 1943
Town Planning and Development Act Amendment Act 1944	41 of 1944	11 Jan 1945	11 Jan 1945
Town Planning and Development Act Amendment Act 1945	16 of 1945	9 Jan 1946	9 Jan 1946
Town Planning and Development Act Amendment Act 1947	29 of 1947	18 Nov 1947	18 Nov 1947
Reprint of the Town Planning and Development Act 1928 in Vol. 4 of Reprinted Acts 11 (includes amendments listed above)
Town Planning and Development Act Amendment Act 1953	79 of 1953	18 Jan 1954	18 Jan 1954
Limitation Act 1935 s. 48A(1)	35 of 1935 (as amended by No. 73 of 1954 s. 8)	14 Jan 1955	Relevant amendments (see s. 48A and Second Sch. 12) took effect on 1 Mar 1955 (see No. 73 of 1954 s. 2 and Gazette 18 Feb 1955 p. 343)
Town Planning and Development Act Amendment Act 1955	63 of 1955	19 Dec 1955	19 Dec 1955
Town Planning and Development Act Amendment Act 1956	79 of 1956	17 Jan 1957	17 Jan 1957
Reprint of the Town Planning and Development Act 1928 approved 15 May 1957 in Vol. 11 of Reprinted Acts (includes amendments listed above)
Town Planning and Development Act Amendment Act 1957	68 of 1957	6 Dec 1957	6 Dec 1957
Town Planning and Development Act Amendment Act (No. 2) 1957	79 of 1957	23 Dec 1957	23 Dec 1957
Town Planning and Development Act Amendment Act (No. 2) 1958 13	61 of 1958	24 Dec 1958	24 Dec 1958
Town Planning and Development Act Amendment Act (No. 3) 1959	49 of 1959	20 Nov 1959	20 Nov 1959
Town Planning and Development Act Amendment Act 1961	64 of 1961	28 Nov 1961	1 Jan 1962 (see s. 2 and Gazette 22 Dec 1961 p. 3860)
Reprint of the Town Planning and Development Act 1928 approved 26 Jun 1962 (not in a Volume) (includes amendments listed above)
Town Planning and Development Act Amendment Act 1962	45 of 1962	1 Nov 1962	1 Nov 1962
Town Planning and Development Act Amendment Act 1965	98 of 1965	17 Dec 1965	17 Dec 1965
Decimal Currency Act 1965	113 of 1965	21 Dec 1965	Act other than s. 4-9: 21 Dec 1965 (see s. 2(1)); s. 4-9: 14 Feb 1966 (see s. 2(2))
Reprint of the Town Planning and Development Act 1928 approved 28 Aug 1967 (not in a Volume) (includes amendments listed above)
Town Planning and Development Act Amendment Act 1967	25 of 1967	27 Oct 1967	27 Oct 1967
Town Planning and Development Act Amendment Act 1969	31 of 1969	16 May 1969	16 May 1969
Town Planning and Development Act Amendment Act 1970	117 of 1970	10 Dec 1970	15 Feb 1971 (see s. 2 and Gazette 12 Feb 1971 p. 378)
Town Planning and Development Act Amendment Act 1972	34 of 1972	16 Jun 1972	16 Jun 1972
Metric Conversion Act 1972	94 of 1972 (as amended by No. 19 and 83 of 1973, 42 of 1975)	4 Dec 1972	Relevant amendments (see Second Sch. 14) took effect on 1 Jul 1973 (see s. 4(2) and Gazette 22 Jun 1973 p. 2378)
Reprint of the Town Planning and Development Act 1928 approved 8 Mar 1973 (includes amendments listed above except those in the Metric Conversion Act 1972)
Town Planning and Development Act Amendment Act 1973	30 of 1973	6 Jun 1973	6 Jun 1973
Town Planning and Development Act Amendment Act 1974	14 of 1974	16 Oct 1974	Act other than s. 3: 16 Oct 1974 (see s. 2(1)); s. 3: 15 Nov 1974 (see s. 2(2) and Gazette 15 Nov 1974 p. 5053)
Town Planning and Development Act Amendment Act 1975	69 of 1975	7 Nov 1975	7 Nov 1975
Town Planning and Development Act Amendment Act 1976	103 of 1976	17 Nov 1976	25 Jun 1979 (see s. 2 and Gazette 25 Jun 1979 p. 1757)
Town Planning and Development Act Amendment Act 1978	32 of 1978	22 May 1978	25 Jun 1979 (see s. 2 and Gazette 25 Jun 1979 p. 1757)
Acts Amendment and Repeal (Valuation of Land) Act 1978 Pt. XIV	76 of 1978	20 Oct 1978	1 Jul 1979 (see s. 2 and Gazette 11 May 1979 p. 1211)
Mining Act 1978 s. 3	107 of 1978	8 Dec 1978	1 Jan 1982 (see s. 2(2) and Gazette 18 Dec 1981 p. 5085)
Town Planning and Development Act Amendment Act 1979	89 of 1979	11 Dec 1979	11 Dec 1979
Reprint of the Town Planning and Development Act 1928 approved 22 May 1980 (includes amendments listed above except those in the Mining Act 1978)
Town Planning and Development Amendment Act 1980	72 of 1980	26 Nov 1980	Act other than s. 3, 4 and 6-11: 26 Nov 1980 (see s. 2(1)); s. 3 and 4: 14 Dec 1980 (see s. 2(2)); s. 6‑9 and 11: 25 Dec 1980 (see s. 2(3)); s. 10: 18 Mar 1983 (see s. 2(4) and Gazette 18 Mar 1983 p. 869)
Acts Amendment (Land Use Planning) Act 1981 Pt. III	79 of 1981	9 Nov 1981	18 Dec 1981 (see s. 2 and Gazette 18 Dec 1981 p. 5166)
Acts Amendment (Metropolitan Region Town Planning Scheme) Act 1982 Pt. III	73 of 1982	29 Oct 1982	29 Oct 1982
Town Planning and Development Act Amendment Act 1982 15-20	120 of 1982 (as amended by No. 32 of 1983 s. 8 and No. 84 of 1994 s. 60 21)	10 Dec 1982	Act other than s. 6-8, 15 and 19-22: 10 Dec 1982 (see s. 2(1)); s. 15 and 19‑22: 20 May 1983 (see s. 2(2) and Gazette 20 May 1983 p. 1522); s. 6 and 7: 10 Mar 1986 (see s. 2(2) and Gazette 7 Mar 1986 p. 692)
Acts Amendment (Mining) Act 1982 Pt. III	122 of 1982	10 Dec 1982	10 Dec 1982 (see s. 2(1))
Town Planning and Development Amendment Act 1983 22	32 of 1983	1 Dec 1983	1 Dec 1983
Town Planning and Development Amendment Act 1985	7 of 1985	25 Mar 1985	22 Apr 1985
Acts Amendment (State Planning Commission) Act 1985 Pt. II	92 of 1985	4 Dec 1985	6 Dec 1985 (see s. 2 and Gazette 6 Dec 1985 p. 4591)
Commercial Arbitration Act 1985 s. 3(1)	109 of 1985	7 Jan 1986	1 Apr 1986 (see s. 2 and Gazette 28 Feb 1986 p. 605)
Town Planning and Development Amendment Act 1986 23	26 of 1986	29 Jul 1986	Act other than s. 5(2) and 10(2): 29 Jul 1982 (see s. 2(1)); s. 5(2) and 10(2): 19 Jan 1987 (see s. 2(2) and Gazette 31 Dec 1986 p. 5027)
Acts Amendment and Repeal (Environmental Protection) Act 1986 s. 34	77 of 1986	4 Dec 1986	20 Feb 1987 (see s. 2 and Gazette 20 Feb 1987 p. 440)
Acts Amendment (Swan River Trust) Act 1988 Pt. 9	21 of 1988	5 Oct 1988	1 Mar 1989 (see s. 2 and Gazette 27 Jan 1989 p. 264)
Reprint of the Town Planning and Development Act 1928 as at 19 Dec 1988 (includes amendments listed above except those in the Acts Amendment (Swan River Trust) Act 1988)
Acts Amendment (Heritage Council) Act 1990 Pt. 2 Div. 4	97 of 1990	22 Dec 1990	25 Feb 1991 (see s. 2 and Gazette 22 Feb 1991 p. 868)
East Perth Redevelopment Act 1991 s. 59	62 of 1991	30 Dec 1991	1 Jul 1992 (see s. 2 and Gazette 1 Jul 1992 p. 2945)
Financial Administration Legislation Amendment Act 1993 s. 11	6 of 1993	27 Aug 1993	1 Jul 1993 (see s. 2(1))
Acts Amendment (Public Sector Management) Act 1994 s. 3(2)	32 of 1994	29 Jun 1994	1 Oct 1994 (see s. 2 and Gazette 30 Sep 1994 p. 4948)
Subiaco Redevelopment Act 1994 s. 67	35 of 1994	8 Jul 1994	24 Aug 1994 (see s. 2 and Gazette 23 Aug 1994 p. 4364)
Energy Corporations (Transitional and Consequential Provisions) Act 1994 s. 109	89 of 1994	15 Dec 1994	1 Jan 1995 (see s. 2(2) and Gazette 23 Dec 1994 p. 7069)
Planning Legislation Amendment Act (No. 2) 1994 s. 46 and Pt. 6	84 of 1994	13 Jan 1995	1 Mar 1995 (see s. 2 and Gazette 21 Feb 1995 p. 567)
Swan Valley Planning Act 1995 s. 27 24, 25	31 of 1995	18 Sep 1995	25 Nov 1995 (see s. 2 and Gazette 24 Nov 1995 p. 5389)
Strata Titles Amendment Act 1995 s. 100	58 of 1995	20 Dec 1995	14 Apr 1996 (see s. 2 and Gazette 15 Mar 1996 p. 981)
Water Agencies Restructure (Transitional and Consequential Provisions) Act 1995 s. 188	73 of 1995	27 Dec 1995	1 Jan 1996 (see s. 2(2) and Gazette 29 Dec 1995 p. 6291)
Reprint of the Town Planning and Development Act 1928 as at 21 Feb 1996 (includes amendments listed above except those in the Strata Titles Amendment Act 1995)
Local Government (Consequential Amendments) Act 1996 s. 4	14 of 1996	28 Jun 1996	1 Jul 1996 (see s. 2)
Planning Legislation Amendment Act 1996 Pt. 6 26	23 of 1996	11 Jul 1996	4 Aug 1996 (see s. 2 and Gazette 2 Aug 1996 p. 3615)
Financial Legislation Amendment Act 1996 s. 64	49 of 1996	25 Oct 1996	25 Oct 1996 (see s. 2(1))
Transfer of Land Amendment Act 1996 s. 153(1) and (2)	81 of 1996	14 Nov 1996	s. 153(1) (to the extent that it would amend s. 2(1) and 21(2)): 14 Nov 1996 (see s. 2(1)); s. 153(2): 14 Nov 1996 (see s. 2(1)); s. 153(1) (to the extent that it would amend s. 20(2), 20A, 27A(1) and 28(3)): 3 Feb 1997 (see s. 2(4) and Gazette 31 Jan 1997 p. 613)
Acts Amendment (Land Administration) Act 1997 Pt. 59 and s. 142	31 of 1997	3 Oct 1997	30 Mar 1998 (see s. 2 and Gazette 27 Mar 1998 p. 1765)
Statutes (Repeals and Minor Amendments) Act 1997 s. 121	57 of 1997	15 Dec 1997	15 Dec 1997 (see s. 2(1))
Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 68	10 of 1998	30 Apr 1998	30 Apr 1998 (see s. 2(1))
Reprint of the Town Planning and Development Act 1928 as at 19 Mar 1999 (includes amendments listed above)
Midland Redevelopment Act 1999 s. 78	38 of 1999	11 Nov 1999	1 Jan 2000 (see s. 2 and Gazette 31 Dec 1999 p. 7059)
Gas Corporation (Business Disposal) Act 1999 s. 68 and 86	58 of 1999	24 Dec 1999	s. 68: 24 Dec 1999 (see s. 2(1)); s. 86: 1 Jul 2000 (see s. 2(2) and Gazette 4 Jul 2000 p. 3545)
Planning Legislation Amendment Act 1999 Pt. 2	59 of 1999	10 Jan 2000	19 Dec 2000 (see s. 2 and Gazette 19 Dec 2000 p. 7273)
Statutes (Repeals and Minor Amendments) Act 2000 s. 14(13) and 41	24 of 2000	4 Jul 2000	4 Jul 2000 (see s. 2)
Reprint of the Town Planning and Development Act 1928 as at 3 Nov 2000 (includes amendments listed above except those in the Planning Legislation Amendment Act 1999)
Hope Valley‑Wattleup Redevelopment Act 2000 s. 39	77 of 2000	7 Dec 2000	1 Jan 2001 (see s. 2 and Gazette 29 Dec 2000 p. 7904)
Armadale Redevelopment Act 2001 s. 69	25 of 2001	26 Nov 2001	23 Mar 2002 (see s. 2 and Gazette 22 Mar 2002 p. 1651)
Planning Appeals Amendment Act 2002 Pt. 2 and 3 27, 28	24 of 2002 (as amended by No. 55 of 2004 s. 1225)	24 Sep 2002	18 Apr 2003 (see s. 2 and Gazette 17 Apr 2003 p. 1243)
Environmental Protection Amendment Act 2003 s. 68(9)	54 of 2003	20 Oct 2003	19 Nov 2003 (see s. 2 and Gazette 18 Nov 2003 p. 4723)
Local Government Amendment Act 2004 s. 13	49 of 2004	12 Nov 2004	1 Apr 2005 (see s. 2 and Gazette 31 Mar 2005 p. 1029)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 126 29-31	55 of 2004	24 Nov 2004	1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)
Reprint 11: The Town Planning and Development Act 1928 as at 10 Jun 2005 (includes amendments listed above)
Electricity Corporations Act 2005 s. 139	18 of 2005	13 Oct 2005	1 Apr 2006 (see s. 2(2) and Gazette 31 Mar 2006 p. 1153)

1aOn the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.

Provisions that have not come into operation

Short title	Number and year	Assent	Commencement
Contaminated Sites Act 2003 s. 100 32	60 of 2003	7 Nov 2003	To be proclaimed (see s. 2)
Planning and Development (Consequential and Transitional Provisions) Act 2005 s. 4 34	38 of 2005	12 Dec 2005	To be proclaimed (see s. 2)

2Under the Public Sector Management Act 1994 the names of departments may be changed. At the time this compilation was prepared, the former Department of Land Administration was called the Department of Land Information and the Minister was the Minister for Land Information.

3Under the Land Administration Act 1997 s. 281(3), a reference to the Land Act 1933 in a written law is, unless the contrary intention appears, to be read and construed as being a reference to the Land Administration Act 1997.

4Repealed by the Mining Act 1978.

5The Local Government Act Amendment Act (No. 4) 1969 came into operation on 12 Dec 1969. See Gazette 12 Dec 1969 p. 4001.

6See the Local Government (Miscellaneous Provisions) Act 1960.

7The Town Planning and Development Act 1928 is affected by the —

Soil and Land Conservation Act 1945 s. 3;

Metropolitan Region Town Planning Scheme Act 1959; and the

Industrial Lands Development Authority Act 1966.

8The Town Planning and Development Act 1928 is affected by the Dampier to Bunbury Pipeline Act 1997 Sch. 4 cl. 45 which reads as follows:

“

Schedule 4 — Amendments to, or modification of, certain Acts

45.Section 20

Section 20(1) of the Town Planning and Development Act 1928 does not apply to the conferral of rights under section 34 of this Act.

”.

9The Town Planning and Development Act 1928 is affected by the Rail Freight Systems Act 2000 Pt. 5 Div. 7 which reads as follows:

“

Division 7 — Town Planning and Development Act 1928

105.Section 20

Section 20(1) of the Town Planning and Development Act 1928 does not apply to —

(a)a disposal of an interest in corridor land;

(b)a disposal under Part 2; or

(c)any conveyance to give effect to a disposal described in paragraph (a) or (b).

”.

10The amendment in the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 70 is not included because the section it sought to amend had been repealed by the Planning Appeals Amendment Act 2002 s. 11 before the amendment purported to come into operation.

11In this compilation the numbering of Parts, sections, Divisions, etc., effected in the 1951 reprint (in Volume 4 of the Reprinted Acts of Parliament of Western Australia) and subsequent reprints has again been retained. References to the original numbering are contained in those reprints.

12Section 48A and the Second Schedule were inserted by the Limitation Act Amendment Act 1954 s. 8.

13The Town Planning and Development Act Amendment Act (No. 2) 1958 s. 2(2) and 6(2) are restrospective provisions.

14The Second Schedule was inserted by the Metric Conversion Act Amendment Act 1973.

15The Town Planning and Development Amendment Act 1982 s. 4(2) and (3) are transitional provisions that are of no further effect.

16The Town Planning and Development Amendment Act 1982 s. 10(2) is a transitional provision that is of no further effect.

17The Town Planning and Development Amendment Act 1982 s. 12(2) is a transitional provision that is of no further effect.

18The Town Planning and Development Amendment Act 1982 s. 19(2) is a transitional provision that is of no further effect.

19The Town Planning and Development Amendment Act 1982 s. 21(2) is a transitional provision that is of no further effect.

20The Town Planning and Development Amendment Act 1982 s. 23(2) is a transitional provision that is of no further effect.

21The Town Planning and Development Amendment Act 1982 s. 8 was repealed by the Planning Legislation Amendment Act (No. 2) 1994 s. 60 before it was proclaimed.

22The Town Planning and Development Amendment Act 1983 s. 4(2) is a transitional provision that is of no further effect.

23The Town Planning and Development Amendment Act 1986 s. 8(2) is a transitional provision that is of no further effect.

24The Swan Valley Planning Act 1995 Sch. 2 cl. 11(2) reads as follows:

“

(2)The provisions inserted by subclause (1) do not apply to a town planning scheme or an amendment to a town planning scheme that was prepared before the commencement of section 27 of this Act.

”.

25The Swan Valley Planning Act 1995 Sch. 2 cl. 12(2) reads as follows:

“

(2)The provisions inserted by subclause (1) do not apply to any application for approval under section 20 of the principal Act made before the commencement of section 27 of this Act.

”.

26The Planning Legislation Amendment Act 1996 s. 45(2) and (3) are transitional provisions that are of no further effect.

27The Planning Appeals Amendment Act 2002 s. 12 and Pt. 3 (as amended by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 s. 1225) read as follows:

“

[12.Repealed by No. 55 of 2004 s. 1225(2).]

Part 3 — Transitional provisions

15.Interpretation

In this Part —

“commencement day” means the day on which section 11 of this Act comes into operation;

“new Part” means Part V of the Town Planning and Development Act 1928 as inserted by this Act;

“repealed Part” means Part V of the Town Planning and Development Act 1928 as repealed by section 11 of this Act.

16.Interpretation Act 1984 not affected

The provisions of this Part do not affect the application of the Interpretation Act 1984 to and in relation to the repeal effected by section 11 of this Act.

17.Current appeals

(1)In this section —

“appeal” means an appeal within the meaning of section 37 of the repealed Part.

(2)Subject to subsection (4), an appeal commenced before the commencement day but not finally determined on or before that day, may be dealt with and determined under the repealed Part as if section 11 of this Act were not in operation.

(3)Despite section 19(2)(a), a person who is a member of the Town Planning Appeal Tribunal under the repealed Part immediately before the commencement day may continue in office for the purpose of dealing with and determining an appeal commenced before commencement day but not finally determined on or before that day.

[(4)repealed]

[Section 17 amended by No. 55 of 2004 s. 1225(3).]

[18.Repealed by No. 55 of 2004 s. 1225(4).]

19.Existing appointments

(1)On and after the commencement day —

(a)the Chairman of the Appeal Tribunal under the repealed Part immediately before the commencement day is taken to have been appointed as President of the Tribunal under and subject to the Town Planning and Development Act 1928 as amended by this Act and is to be taken to have been so appointed for a term expiring on the day on which his term as Chairman would, but for this Act, have expired;

(b)the Registrar of the Appeal Tribunal under the repealed Part immediately before the commencement day is taken to be the Registrar of the Tribunal for the purposes of the Town Planning and Development Act 1928 as amended by this Act under and subject to Part 3 of the Public Sector Management Act 1994.

(2)On the commencement day any person who immediately before that day held the office of —

(a)a member or deputy member of the Appeal Tribunal under the Town Planning and Development Act 1928; or

(b)a member of the Town Planning Appeal Committee under the Town Planning and Development Act 1928,

vacates that office.

20.Submissions under Metropolitan Region Town Planning Scheme Act 1959

On the coming into operation of section 26 of this Act, any submission received by the Minister under section 33A of the Metropolitan Region Town Planning Scheme Act 1959, and not reported on under section 33A(5) of that Act, is to be dealt with by the Commission as if the submission had been received by the Commission under section 33A of the Metropolitan Region Town Planning Scheme Act 1959 as amended by this Act.”.

28The Planning Appeals Amendment Act 2002 s. 21 expired on 24 Sep 2003 (see s. 21(5)).

29The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 126 Subdiv. 3 reads as follows:

“

Subdivision 3 — Transitional provisions

1226.Ministerial referrals

(1)In this section —

“appeal” means an appeal within the meaning of section 37 of the repealed Part V of the Town Planning and Development Act 1928 as repealed by section 11 of the Planning Appeals Amendment Act 2002;

“Minister” means the Minister administering the Town Planning and Development Act 1928.

(2)If an appeal has been made to the Minister after 1 July 2001 but not finally determined or referred to the Town Planning Appeal Tribunal under section 17(4) of the Planning Appeals Amendment Act 2002 before the commencement of this Division, the appeal may be referred by the Minister to the State Administrative Tribunal for determination and the State Administrative Tribunal has the same powers and functions in relation to the appeal as if it were an application for a review of the matter made to the State Administrative Tribunal.

(3)Section 167 of the State Administrative Tribunal Act 2004 extends to an appeal made to the Minister after 1 July 2001 and referred to the Town Planning Appeal Tribunal under section 17(4) of the Planning Appeals Amendment Act 2002 before the commencement of this section.

1227.References to Committee and Tribunal

(1)Unless the context otherwise requires, where in any written law or in any document of any other kind there is a reference to an appeal to the Town Planning Appeal Committee or the Town Planning Appeal Tribunal that reference is to be read and construed as a reference to an application for review made to the State Administrative Tribunal.

(2)Unless the context otherwise requires, where in any written law or in any document of any other kind there is a reference to a decision or determination of the Town Planning Appeal Committee or the Town Planning Appeal Tribunal that reference is to be read and construed as a reference to a decision or determination of the State Administrative Tribunal.

1228.Entitlements

(1)In this section —

“former President” means the person who was the President of the Town Planning Appeal Tribunal immediately before the commencement of section 1202;

“unexpired term” means that portion of the term of office of the former President that had not expired before the commencement of section 1202.

(2)Despite section 119(1) of the State Administrative Tribunal Act 2004, the rates of remuneration and allowances to which the former President is entitled in respect of any service as a member of the State Administrative Tribunal during the unexpired term are not to be less than the rates of remuneration and allowances to which he or she would have been entitled in respect of the performance of his or her functions as the President of the Town Planning Appeal Tribunal during the unexpired term if this Act had not been enacted.

”.

30The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

31The State Administrative Tribunal Regulations 2004 r. 40 reads as follows:

“

40.Town Planning and Development Act 1928

(1)In this regulation, unless the contrary intention appears —

“commencement day” means the day on which the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Part 2 Division 126 comes into operation.

(2)Subregulations (3) and (4) apply if —

(a)before the commencement day, under the Town Planning and Development Act 1928 section 40(3)(b), the appellant had elected at the time of commencing the appeal to have the appeal determined by a single ordinary member, and the other parties to the appeal had agreed with that election; and

(b)the appeal is transferred to the Tribunal under section 167(4)(a) or (b) of the Act.

(3)If this subregulation applies, despite the Act section 11 and the Town Planning and Development Act 1928 section 38 the Tribunal is to be constituted by an ordinary member sitting alone.

(4)If this subregulation applies and the appellant has, before the commencement day, made an election under the Town Planning and Development Act 1928 section 58(3), as in force on the day of election —

(a)the Act section 39 does not apply to the hearing of the matter before the Tribunal; and

(b)the Town Planning and Development Act 1928 section 58(4) applies to that hearing as if that subsection had not been amended on the commencement day.

(5)If —

(a)before the commencement day the Registrar has fixed a time and day for the mediation of a Class 2 appeal under the Town Planning Appeal Tribunal Rules 2003 rule 17(1) and a party to the appeal has not given a notice under rule 17(4) of those rules; and

(b)the appeal is transferred to the Tribunal under section 167(4)(a) of the Act,

on or after the commencement day —

(c)the Act section 54 applies as if the Tribunal had referred the matter for mediation under the Act section 54(1); and

(d)the Tribunal is to specify a person as a mediator for the purposes of section 54.

(6)If —

(a)before the commencement day the Registrar has fixed a time and day for the mediation of a Class 2 appeal under the Town Planning Appeal Tribunal Rules 2003 rule 17(1) and a party to the appeal has given a notice under rule 17(4) of those rules; and

(b)the appeal is transferred to the Tribunal under the Act section 167(4)(a),

on or after the commencement day the Act section 54 does not apply.

(7)If —

(b)a party to the appeal purports to give the notice under rule 17(4) on or after the commencement day but within 14 days of the notice of appeal being filed and served; and

(c)the appeal is transferred to the Tribunal under the Act section 167(4)(a),

on or after the commencement day the Act section 54 does not apply.

”.

32On the date as at which this compilation was prepared, the Contaminated Sites Act 2003 s. 100, which gives effect to Sch. 3, had not come into operation. It reads as follows:

“

100.Consequential amendments to other Acts

Schedule 3 has effect.

”.

Schedule 3 cl. 3 reads as follows:

“

Schedule 3 — Consequential provisions

[s. 100]

3.Town Planning and Development Act 1928 amended

(1)The amendment in this clause is to the Town Planning and Development Act 1928.

(2)Section 20(1)(a) is amended by inserting after “1986,” —

“ to section 58(6) of the Contaminated Sites Act 2003, ”.

”.

33Footnote no longer applicable.

34On the date as at which this compilation was prepared, the Planning and Development (Consequential and Transitional Provisions) Act 2005 s. 4, which gives effect to Sch. 1, had not come into operation. It reads as follows:

“

4.Acts in Schedule 1 repealed

The Acts mentioned in Schedule 1 are repealed.

”.

Schedule 1 reads as follows:

“

Schedule 1 — Acts repealed

[s. 4]

…………..

Town Planning and Development Act 1928

…………..

”.