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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Local Government (Miscellaneous Provisions)
Amendment Bill 2005
CONTENTS
1. Short title 2
2. Commencement 2
3. The Act amended 2
4. Section 245A amended 2
5. Part XV Division 1A inserted 2
Division 1A -- Qualifications and
appointment of local government
building surveyors
373A. Qualifications of local government building
surveyors 2
373B. Appointment of local government building
surveyors 3
6. Section 374 amended 5
7. Sections 374AA, 374AAB, 374AAC and 374AAD
inserted 6
374AA. Building approval certificates for
unauthorised building work 6
374AAB. Delegation of authority to approve plans of
buildings or unauthorised building work 8
374AAC. Advice to be sought where no delegation
of authority 11
374AAD. Review of decisions about building
licences and building approval certificates 11
8. Section 374AA amended 12
9. Sections 374AA and 374AAA renumbered 13
10. Section 380 amended 13
11. Section 401 amended 13
12. Various references to building surveyor amended 15
13. Consequential amendment to the Local
Government Act 1995 and transitional provision 15
089--2 page i
Local Government (Miscellaneous Provisions) Amendment Bill 2005
Contents
14. Consequential amendments to the Builders'
Registration Act 1939 16
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Local Government (Miscellaneous Provisions)
Amendment Bill 2005
A Bill for
An Act to --
· amend the Local Government (Miscellaneous Provisions)
Act 1960;
· amend the Builders' Registration Act 1939 and the Local
Government Act 1995 consequentially,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 1
1. Short title
This is the Local Government (Miscellaneous Provisions)
Amendment Act 2005.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. The Act amended
The amendments in this Act (other than in sections 13 and 14)
10 are to the Local Government (Miscellaneous Provisions)
Act 1960*.
[* Reprint 7 as at 16 September 2005.]
4. Section 245A amended
Section 245A(1) is amended in the definition of "swimming
15 pool" by inserting after "entitled to use" --
" and includes a spa-pool but not a spa-bath ".
5. Part XV Division 1A inserted
After Part XV Division 1 the following Division is inserted --
"
20 Division 1A -- Qualifications and appointment of local
government building surveyors
373A. Qualifications of local government building
surveyors
(1) Regulations may be made prescribing the educational
25 and professional qualifications (if any), and (where
relevant) the certificates evidencing those
qualifications, that must be held by a person before the
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Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 5
person can be appointed to the office of building
surveyor of a local government.
(2) Without limiting subsection (1), regulations made for
the purposes of subsection (1) may --
5 (a) deal with the same sorts of matters as those set
out in section 374AAB(3)(b), (c), (d) and (f);
and
(b) give to a committee constituted under
section 374AAB(3)(b) functions for the
10 purposes of subsection (1).
373B. Appointment of local government building
surveyors
(1) A local government may appoint a person to the office
of building surveyor of the local government.
15 (2) If this Part applies to the district or a part of the district
of a local government, the local government must
appoint a person to the office of building surveyor of
the local government.
(3) If regulations made for the purposes of section 373A
20 require an occupant of the office of building surveyor
of a local government to hold a specified qualification
under the regulations, the local government must not
appoint a person to the office unless --
(a) the person holds the appropriate certificate of
25 qualification under the regulations; or
(b) the Minister approves the appointment.
(4) Subsection (3) does not apply to a person acting
temporarily in the office of building surveyor of a local
government for a period not exceeding 3 months.
30 (5) The Minister may, after consultation with the local
government, impose on an approval under
subsection (3)(b) a condition that the person in respect
page 3
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 5
of whom the approval is given must obtain the
specified certificate of qualification under the
regulations within the time specified.
(6) The Minister may from time to time grant an extension
5 of the period fixed under subsection (5) if the Minister
considers that the circumstances justify the extension.
(7) If --
(a) approval is given by the Minister under
subsection (3)(b) subject to a condition that the
10 person obtain a specified certificate of
qualification; and
(b) at the completion of the period within which
the certificate was to be obtained, or any
extension of it --
15 (i) the person appointed by the local
government under that approval still
does not hold the certificate of
qualification; and
(ii) the Minister does not consider that the
20 circumstances justify an extension or
further extension of that period,
the Minister may, after consultation with the local
government, direct the local government to remove the
person from the office and, despite anything in this Act
25 or the Local Government Act 1995, the local
government must comply with that direction.
(8) A person occupying the office of building surveyor of a
local government must not be removed from office just
because the person does not hold a certificate of
30 qualification required by the regulations to be held by
the occupant of the office.
(9) A person occupying the office of building surveyor of a
local government who does not hold a certificate of
qualification required by the regulations to be held by
page 4
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 6
the occupant of the office may, subject to
section 374AAB(4), continue to perform the functions
of that office.
".
5 6. Section 374 amended
(1) Section 374(1) is amended by deleting the penalty at the foot of
the subsection and inserting instead --
"
Penalty: $50 000 and in addition a daily penalty of
10 $5 000 for each day during which the offence
continues.
".
(2) Section 374(1b), (1ba), (1c), (1d) and (2) are repealed and the
following subsections are inserted instead --
15 "
(1b) A local government may reject an application for a
building licence under section 374 for the amendment,
alteration, extension or enlargement of an existing
building if the local government has reason to believe
20 that there is something in the construction of the
building which would give the local government
grounds for issuing a notice under section 401(1).
(1c) The local government may suspend dealing with the
application pending the outcome of an application for a
25 building approval certificate under section 374AA in
respect of the building.
(1d) A local government may require a person to whom a
building licence for building work is issued under
subsection (1) (after this subsection comes into
30 operation) to give notice of the completion of the
building work to the local government, within the time
specified in the notice (which must not be less than
35 days after practical completion).
page 5
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 7
(2) A person to whom a notice is given under
subsection (1d) must comply with the notice.
Penalty: $400 and in addition a daily penalty of $16 for
each day during which the offence continues.
5 ".
(3) Section 374(3) is amended by deleting the penalty at the foot of
the subsection and inserting instead --
"
Penalty: $4 000 and in addition a daily penalty of $160
10 for each day during which the offence continues.
".
(4) After section 374(3) the following subsection is inserted --
"
(4) In proceedings for an offence against subsection (3) it
15 is a defence if the accused proves that, before the
occupation or use occurred, a building approval
certificate had been issued under section 374AA in
respect of the building work that was carried out in
contravention of subsection (1).
20 ".
7. Sections 374AA, 374AAB, 374AAC and 374AAD inserted
After section 374 the following sections are inserted --
"
374AA. Building approval certificates for unauthorised
25 building work
(1) In this section --
"unauthorised building work" means the erection of
a building or the amendment, alteration, extension
or enlargement of the structure of a building --
30 (a) which is carried out without the permission
of the local government where that
permission is required; or
page 6
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 7
(b) which is not in compliance with, or is a
departure from, plans and specifications for
the building that have been approved by the
local government under section 374(1).
5 (2) The owner of a building on which unauthorised
building work has been carried out may apply to the
local government for the issue of a building approval
certificate in respect of the unauthorised building work.
(3) An application under subsection (2) --
10 (a) is to be in the form prescribed by regulations;
(b) is to be accompanied by the documents and
information prescribed by regulations or
required by the local government; and
(c) is to be accompanied by the fee prescribed by
15 regulations.
(4) The local government --
(a) may, if it is satisfied that the unauthorised
building work substantially conforms with the
requirements of this Act, issue a building
20 approval certificate in respect of the
unauthorised building work; or
(b) may refuse to issue a building approval
certificate in respect of the unauthorised
building work.
25 (5) A building approval certificate may be issued subject
to such conditions as are specified in it.
(6) Section 374(2a) and (2b) (with any necessary
modifications) apply in relation to the issue or refusal
to issue a building approval certificate as if it were the
30 approval or refusal to approve specifications and a plan
submitted to the local government under
section 374(1).
page 7
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 7
374AAB. Delegation of authority to approve plans of
buildings or unauthorised building work
(1) The authority to approve or refuse to approve --
(a) plans and specifications submitted under
5 section 374; or
(b) unauthorised building work under
section 374AA,
may be delegated by a local government to a person,
but if the plans and specifications so submitted
10 conform, or the unauthorised building work conforms,
to --
(c) all local laws in force in the relevant district or
part of a district in respect of building matters,
and the local government's pre-determined
15 policy in respect of building matters; and
(d) all local laws and schemes in force in the
relevant district or part of a district in respect of
town and regional planning matters, and the
local government's pre-determined policy in
20 respect of town and regional planning matters,
the delegate must not refuse to approve the plans and
specifications or the unauthorised building work
without first obtaining the consent of the local
government.
25 (2) Regulations may be made regulating the delegation of
the authority to approve or refuse to approve plans and
specifications or unauthorised building work.
(3) Without limiting subsection (2), regulations made for
the purposes of subsection (2) may --
30 (a) prescribe the educational and professional
qualifications (if any), and (where relevant) the
certificates evidencing those qualifications, that
page 8
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 7
must be held by a person before the authority to
approve or refuse to approve --
(i) plans and specifications for building
work; or
5 (ii) unauthorised building work,
of a kind specified in the regulations can be
delegated to that person;
(b) constitute a committee with the functions of
assessing applications for certificates of
10 qualification and granting certificates to
applicants it determines have --
(i) the prescribed qualifications or
equivalent interstate and overseas
qualifications; or
15 (ii) for a particular type of certificate --
sufficient knowledge and experience to
qualify them to carry out the functions
of persons who hold certificates of that
type;
20 (c) provide for the committee to require that an
applicant's qualifications or knowledge and
experience be assessed by another person or
body before the committee makes a
determination about those qualifications or that
25 knowledge and experience;
(d) provide the grounds upon which, and the
manner in which, those certificates may be
cancelled by the committee;
(e) provide for applications to be made to the State
30 Administrative Tribunal for the review of
decisions of the committee; and
(f) prescribe fees payable in respect of assessing
applications and granting certificates.
page 9
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 7
(4) A delegation under subsection (1) does not authorise
the delegate to approve or refuse to approve --
(a) plans and specifications for building work; or
(b) unauthorised building work,
5 of a particular kind unless the delegate is a person to
whom the local government can, under the regulations
referred to in subsection (2), delegate the authority to
approve or refuse to approve plans and specifications
for building work, or unauthorised building work, of
10 that kind.
(5) A delegation under subsection (1), and any variation or
revocation of it, must be in writing executed by the
local government.
(6) A person to whom authority is delegated under this
15 section cannot delegate that authority.
(7) A person exercising an authority that has been
delegated to the person under this section is to be taken
to do so in accordance with the terms of the delegation
unless the contrary is shown.
20 (8) Nothing in this section limits the ability of a local
government to exercise its authority under section 374.
(9) An authority delegated by a local government under
subsection (1) and exercised by the delegate is to be
taken to have been exercised by the local government.
page 10
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 7
374AAC. Advice to be sought where no delegation of
authority
(1) If the decision to approve or refuse to approve
particular plans and specifications submitted under
5 section 374 or particular unauthorised building work
under section 374AA is to be made by a local
government rather than a delegate, the local
government must not make a decision unless it has --
(a) obtained advice from a person who holds a
10 certificate of qualification under the regulations
that indicates that the person could be delegated
the authority by the local government to
approve or refuse to approve the plans and
specifications or the unauthorised building
15 work; and
(b) taken that advice into account.
(2) The advice must consider whether the plans and
specifications conform, or the unauthorised building
work substantially conforms, with the requirements of
20 this Act.
(3) This section does not apply where a person need not
hold any qualifications to be delegated the authority to
approve or refuse to approve the plans and
specifications or unauthorised building work.
25 374AAD. Review of decisions about building licences and
building approval certificates
(1) A person who is dissatisfied with --
(a) the refusal of a local government to approve
plans and specifications submitted under
30 section 374(1);
(b) conditions specified in a building licence issued
under section 374(1);
page 11
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 8
(c) the refusal of a local government to issue a
building approval certificate under
section 374AA; or
(d) conditions specified in a building approval
5 certificate under section 374AA,
may apply to the State Administrative Tribunal for a
review of the refusal or the conditions.
(2) For the purpose of enabling effect to be given to an
order it makes upon an application under
10 subsection (1), the State Administrative Tribunal may,
if in its opinion the circumstances of a particular case
warrant its so doing, order that any provision of a local
law made by a local government under this Part or of a
regulation made under this Part does not apply in that
15 particular case or applies as modified by the order in
that particular case and the order has effect according
to its tenor, despite anything in this Act or the Local
Government Act 1995.
".
20 8. Section 374AA amended
(1) Section 374AA is amended by inserting before "A local" the
subsection designation "(1)".
(2) At the end of section 374AA the following subsection is
inserted --
25 "
(2) A local government shall not issue to a person a
building approval certificate under section 374AA
unless satisfied that the person --
(a) has paid the levy imposed in respect of the
30 work under the Building and Construction
Industry Training Levy Act 1990 and any
amount due under section 24 of that Act; or
page 12
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 9
(b) is not liable to pay a levy referred to in
paragraph (a) in respect of the work.
".
Note: The heading to section 374AA will be altered by deleting "licence under
5 section 374 or 374A" and inserting instead "building licence or
building approval certificate".
9. Sections 374AA and 374AAA renumbered
Sections 374AA and 374AAA are renumbered as 374AB and
374AC respectively.
10 10. Section 380 amended
Section 380(1) is amended by inserting after "building
surveyor" in the first place where it occurs --
" of the local government ".
11. Section 401 amended
15 (1) Section 401(1) is amended as follows:
(a) in paragraph (b) by deleting "Act, or which is a
contravention of this Act; or" and inserting instead --
" Act; ";
(b) after paragraph (b) by inserting --
20 "
(ba) which is a contravention of this Act; or
".
(2) After section 401(1) the following subsections are inserted --
"
25 (1a) The local government is not to give notice under
subsection (1)(b) or (c) in respect of particular building
work if --
(a) a building approval certificate has been issued
in respect of the building work;
page 13
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 11
(b) the owner has applied for the issue of a building
approval certificate in respect of the building
work and the application has not been finally
refused; or
5 (c) the local government has given the owner
written notice inviting the owner to apply for
the issue of a building approval certificate in
respect of the building work and the period (if
any) specified in the written notice for the
10 making of the application has not yet expired.
(1b) For the purposes of subsection (1a)(b) an application
for the issue of a building approval certificate has been
finally refused if the local government has refused to
issue the certificate and --
15 (a) no application for review of that refusal has
been made under section 374AAD; or
(b) on review under section 374AAD of that
refusal, the refusal has been upheld.
(1c) In subsections (1a) and (1b) --
20 "building approval certificate" means a building
approval certificate under section 374AA.
".
(3) Section 401(4) is amended as follows:
(a) by deleting ", whether";
25 (b) by deleting "or not" and inserting instead --
" under subsection (1) ".
(4) Section 401(5) is amended by inserting after "notice" in the first
place where it occurs --
" from the local government under subsection (1) ".
page 14
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 12
12. Various references to building surveyor amended
Each provision listed in the Table to this section is amended by
inserting after "building surveyor" in each place where it
occurs --
5 " of the local government ".
Table
s. 364(3)(c) s. 406
s. 374(5) s. 415(1)
s. 377(2) and (4) s. 420(1)
s. 379(1) s. 433(26)
s. 399(3)(a)
13. Consequential amendment to the Local Government
Act 1995 and transitional provision
(1) The amendment in this section is to the Local Government
10 Act 1995*.
[* Reprint 3 as at 5 August 2005.]
(2) Schedule 9.2 clause 4(2) is repealed.
(3) The regulations referred to in the Local Government Act 1995
Schedule 9.2 clause 4(2)(b) --
15 (a) continue in effect so far as they relate to building
surveyors and Part XV of the Local Government
(Miscellaneous Provisions) Act 1960; and
(b) are to be taken to have been made under the Local
Government Act 1995 section 9.59 for the purposes of
20 the Local Government (Miscellaneous Provisions)
Act 1960 section 373A and 374AAB inserted by
section 5 and 7of this Act.
page 15
Local Government (Miscellaneous Provisions) Amendment Bill 2005
s. 14
14. Consequential amendments to the Builders' Registration
Act 1939
(1) The amendments in this section are to the Builders' Registration
Act 1939*.
5 [* Reprint 11 as at 2 September 2005.]
(2) After section 4B(1) the following subsections are inserted --
"
(1a) A person to whom a building approval certificate is
issued under section 374AA of the Local Government
10 (Miscellaneous Provisions) Act 1960 must pay to the
local government by which the certificate is issued (at
the time of issue) such fee as is determined by the
Minister.
(1b) Subsection (1a) applies if and only if the certificate is
15 issued in respect of building work for which no
building licence was issued.
".
(3) Section 4B(2) is amended as follows:
(a) by deleting "referred to in subsection (1)" and inserting
20 instead --
" or building approval certificate ";
(b) in paragraph (a) by inserting after "licence" --
" or certificate ";
(c) in paragraph (b) by inserting after "subsection (1)" --
25 " or (1a) ".
page 16
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