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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Planning Appeals Bill 1999
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
Part 2 -- Appeals
Division 1 -- Making an appeal
4. When appeals may be made 4
5. How appeal is to be made 4
6. Appeal to be set down for mediation or investigation 5
Division 2 -- Mediation
7. Assignment of Assessor to mediate 6
8. Role of Assessor in mediation 6
9. Powers of Assessor mediating an appeal 6
10 . Agreements reached by mediation 7
11 . Report by Assessor mediating an appeal 7
12 . Director to review agreement 8
13 . If mediation is unsuccessful 9
14 . Protection of statements made during mediation 9
page i
102--1
Planning Appeals Bill 1999
Contents
Division 3 -- Investigation of appeals
15 . Assignment to an Assessor 9
16 . Notice of setting down for investigation 10
17 . Investigation of appeals 11
18 . Matters to be considered by Assessor investigating
appeal 11
19 . Powers of Assessor investigating an appeal 12
20 . Report on investigation 13
Division 4 -- Determination of appeals
21 . Convening a Planning Appeal Panel 14
22 . Determination of appeal by Planning Appeal Panel 14
23 . Procedure 15
24 . Costs 15
Division 5 -- Calling in of appeals by the Minister
25 . Minister may call in certain appeals 16
26 . Investigation of called in appeals 17
27 . Determination by the Minister 18
Division 6 -- General
28 . Representation 18
29 . Appeals to Supreme Court 19
Part 3 -- Referrals
30 . Referral of submissions under Metropolitan Region
Town Planning Scheme Act 1959 21
31 . Referral of matters under Town Planning and
Development Act 1928 21
32 . Referrals under the Heritage Act 1999 where
objection to: an interim entry being made permanent;
to changing the area of a registered place or state
heritage area; or to the removal of an entry from the
Register 22
33 . Referrals under the Heritage Act 1999 of orders for
the payment of remitted taxes, rates or charges 23
34 . Minister's request to extend protection orders under
the Heritage Act 1999 23
35 . Effect of determinations 24
page ii
Planning Appeals Bill 1999
Contents
Part 4 -- Director, Assessors, Registrar and
staff
36 . Director of Planning Appeals 25
37 . Powers of the Director 25
38 . Delegation by Director 26
39 . Assessors 26
40 . Powers and duties of Assessors 27
41 . Community representative 28
42 . Registrar 28
43 . Other staff and facilities 28
Part 5 -- General
44 . Register 30
45 . Publication of significant appeals 30
46 . False or misleading statements 31
47 . Hindering an Assessor 31
48 . Confidentiality 31
49 . Protection from liability 32
50 . Protection of persons providing information 32
51 . Minister may give directions 32
52 . Minister to have access to information 33
53 . Judicial notice of appointment and signature 34
54 . Regulations 34
55 . Review 35
Schedule 1 -- Persons to be notified of
investigation
Schedule 2 -- Terms and conditions of
appointment of Director
1. Term of office 37
2. Salary and entitlements 37
3. Resignation and removal from office 37
4. Superannuation 38
5. Appointment of public service officer 38
6. Other conditions of service 38
page iii
Planning Appeals Bill 1999
Contents
Schedule 3 -- Community representative
1. Term of office and resignation 39
2. Remuneration and allowances 39
3. Acting community representative 39
page iv
Western Australia
LEGISLATIVE ASSEMBLY
Planning Appeals Bill 1999
A Bill for
An Act to provide for the determination of --
· appeals against planning or heritage decisions; and
· referrals of planning or heritage matters,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Planning Appeals Bill 1999
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Planning Appeals Act 1999.
2. Commencement
5 This Act comes into operation on a day fixed by proclamation.
3. Interpretation
(1) In this Act unless the context otherwise requires --
"Assessor" means the Director or an Assessor appointed under
section 39;
10 "community representative" means the person appointed
under section 41;
"Director" means the Director of Planning Appeals appointed
under section 36;
"document" includes any tape, disc or other medium on which
15 information is recorded or stored mechanically,
photographically, electronically or otherwise;
"Heritage Council" means the Heritage Council of Western
Australia established under the Heritage Act 1999;
"original decision maker" means the person whose decision is
20 the subject of an appeal;
"party" means an appellant or the original decision maker;
"Planning Appeal Panel" means a panel convened under
section 21;
"Registrar" means the Registrar appointed under section 42.
page 2
Planning Appeals Bill 1999
Preliminary Part 1
s. 3
(2) If a mediation or investigation is assigned under this Act to
more than one Assessor --
(a) a reference in section 8, 9(2), 11, 16(2), 17, 18, 23(1),
23(3), 26(3)(a), 28(5) or 28(6) to "an Assessor", "An
5 Assessor" or "the Assessor" is a reference to those
Assessors; and
(b) a reference in section 7(2), 9(1), 15(2), 15(5), 19, 20,
21(2), 23(2), 40(2) or 47 to "an Assessor" or "An
Assessor" is a reference to any of those Assessors.
page 3
Planning Appeals Bill 1999
Part 2 Appeals
Division 1 Making an appeal
s. 4
Part 2 -- Appeals
Division 1 -- Making an appeal
4. When appeals may be made
A person may appeal under this Act if a right to do so is
5 conferred on the person by --
(a) the East Perth Redevelopment Act 1991;
(b) the Heritage Act 1999;
(c) the Metropolitan Region Town Planning
Scheme Act 1959 or the Metropolitan Region Scheme
10 within the meaning of that Act;
(d) the Strata Titles Act 1985;
(e) the Subiaco Redevelopment Act 1994;
(f) the Town Planning and Development Act 1928, or any
town planning scheme in force under that Act;
15 (g) the Western Australian Planning Commission Act 1985,
or any regional planning scheme within the meaning of
that Act; or
(h) any other written law.
5. How appeal is to be made
20 (1) An appeal under this Act is to be made by --
(a) completing a notice of appeal in the prescribed form;
(b) lodging the notice with the Registrar in the prescribed
manner together with --
(i) the prescribed fee; and
25 (ii) any submissions the appellant wishes to make as
to whether the appeal should, or should not, be
set down for mediation;
and
page 4
Planning Appeals Bill 1999
Appeals Part 2
Making an appeal Division 1
s. 6
(c) serving a copy of the notice of appeal and any
submissions made under subsection (1)(b)(ii) on the
original decision maker.
(2) An appellant must give a copy of the notice of appeal to the
5 prescribed people in the prescribed manner.
(3) The original decision maker may, within 14 days of being
served with the notice of appeal, make written submissions to
the Director as to whether the appeal should be set down for
mediation.
10 6. Appeal to be set down for mediation or investigation
(1) After the expiry of the 14 days referred to in section 5(3), the
Director is to set down an appeal for --
(a) mediation under Division 2; or
(b) investigation under Division 3.
15 (2) The Director is to set down an appeal for mediation unless the
Director considers, having regard to any submissions made
under section 5(1)(b)(ii) or (3) and any other matters the
Director considers relevant, that --
(a) because of the subject matter of the appeal, mediation
20 would be inappropriate;
(b) mediation would be impractical; or
(c) there is no reasonable prospect of any of the issues of
the appeal being settled by mediation.
(3) The Registrar is to notify the parties that the appeal has been set
25 down for mediation or investigation.
page 5
Planning Appeals Bill 1999
Part 2 Appeals
Division 2 Mediation
s. 7
Division 2 -- Mediation
7. Assignment of Assessor to mediate
(1) On setting down an appeal for mediation the Director is to
assign the mediation to one or more Assessors.
5 (2) If an Assessor becomes unavailable to complete the mediation,
the Director --
(a) if the mediation had been assigned to that Assessor
alone, must; and
(b) otherwise, may,
10 assign the mediation to another Assessor.
8. Role of Assessor in mediation
The function of an Assessor mediating an appeal is to encourage
the settlement of the appeal by --
(a) arranging for the parties to hold informal discussions
15 about the appeal;
(b) helping in the conduct of those discussions; and
(c) if possible, assisting the parties to reach an agreement
under section 10.
9. Powers of Assessor mediating an appeal
20 (1) An Assessor mediating an appeal may require a party to --
(a) attend a meeting with the Assessor, or with the Assessor
and any other party;
(b) answer questions put by the Assessor; and
(c) produce documents to the Assessor, or consent to
25 another person who has relevant documents producing
them to the Assessor.
page 6
Planning Appeals Bill 1999
Appeals Part 2
Mediation Division 2
s. 10
(2) An Assessor may terminate the mediation process without an
agreement being reached if --
(a) a party fails to comply with a requirement under
subsection (1);
5 (b) a party indicates that it is no longer willing to participate
in the mediation; or
(c) the Assessor considers there is no reasonable prospect of
any of the issues of the appeal being settled by
mediation.
10 10. Agreements reached by mediation
(1) During mediation the parties may agree to settle --
(a) the appeal by agreeing to --
(i) affirm the decision appealed against;
(ii) vary the decision appealed against; or
15 (iii) set aside the decision appealed against and
substitute a decision on terms agreed by the
parties;
or
(b) particular issues raised by the appeal.
20 (2) An agreement under this section is to be in writing and signed
by the parties.
11. Report by Assessor mediating an appeal
(1) An Assessor mediating an appeal is to give the Director a
written report on the outcome of the mediation of an appeal.
25 (2) An Assessor's report is to include --
(a) details of any failure by a party to comply with a
requirement under section 9(1); and
(b) a copy of any agreement under section 10.
page 7
Planning Appeals Bill 1999
Part 2 Appeals
Division 2 Mediation
s. 12
(3) The Registrar is to give each party a copy of the Assessor's
report.
12. Director to review agreement
(1) The Director is to review any agreement under section 10(1)(a)
5 to settle the appeal and is to confirm, or decline to confirm, the
agreement.
(2) The Director is to confirm an agreement to settle the appeal
unless --
(a) the parties have agreed to vary the decision appealed
10 against or to substitute a different decision and the
Director considers that it would have been beyond the
power of the original decision maker to have made a
decision on the varied or substituted terms; or
(b) the Director considers that the agreement --
15 (i) conflicts with the proper application of generally
accepted planning principles; or
(ii) is otherwise inappropriate;
or
(c) the Director considers that any party was improperly
20 induced or coerced into entering into the agreement.
(3) The Registrar is to notify the parties of the Director's decision
and, if the Director has declined to confirm the agreement, the
reasons for that decision.
(4) If the Director confirms an agreement --
25 (a) the agreement has effect as if the agreement were a
determination of a Planning Appeal Panel under
section 22(1); and
(b) the Director may make orders under sections 22(2) and
24 as if the Director were a Planning Appeal Panel.
page 8
Planning Appeals Bill 1999
Appeals Part 2
Investigation of appeals Division 3
s. 13
13. If mediation is unsuccessful
(1) The Director is to set down an appeal for investigation under
Division 3 if --
(a) mediation of the appeal is terminated;
5 (b) after mediation the parties have not agreed to settle the
appeal; or
(c) the Director declines to confirm an agreement to settle
the appeal reached during the mediation.
(2) The Registrar is to notify the parties that the appeal has been set
10 down for investigation.
14. Protection of statements made during mediation
Unless otherwise agreed by the parties, evidence of anything
said or admitted during the mediation of an appeal is not
admissible during an investigation under Division 3 or 5 or in
15 any matter before a court, except proceedings for an offence
against section 46.
Division 3 -- Investigation of appeals
15. Assignment to an Assessor
(1) On setting down an appeal for investigation the Director is to
20 assign the investigation to one or more Assessors.
(2) The Director may only assign the investigation of an appeal to
an Assessor who mediated the appeal if the parties agree.
(3) The Director is to assign at least 2 Assessors (including one who
has expertise in environmental science) to investigate an appeal --
25 (a) under section 8B of the Town Planning and
Development Act 1928; or
(b) that relates to an environmental condition as defined in
that Act.
page 9
Planning Appeals Bill 1999
Part 2 Appeals
Division 3 Investigation of appeals
s. 16
(4) The Director is to assign at least 3 Assessors (including one who
is a legal practitioner and one who has expertise in heritage
matters) to investigate an appeal under the Heritage Act 1999.
(5) If an Assessor becomes unavailable to complete an investigation
5 the Director --
(a) if the investigation had been assigned to that Assessor
alone, must; and
(b) otherwise, may,
assign the investigation to another Assessor.
10 16. Notice of setting down for investigation
(1) When an appeal is set down for investigation the Registrar is to
notify the person specified in Schedule 1 in respect of appeals of
that type unless that person was served with a copy of the notice
of appeal under section 5(1)(c).
15 (2) A person notified of an appeal under subsection (1) may make
written submissions to the Assessor in relation to the appeal.
(3) The Registrar is to give each party a copy of any submission
made under subsection (2).
(4) If a submission made under subsection (2) contains confidential
20 information the person making the submission may request that
the information be excluded from the copy of the submission
given to the parties under subsection (3).
(5) If a request is made under subsection (4) and the Director
considers it desirable to do so, the Registrar is to exclude the
25 confidential information from the copy of the submission given
to the parties under subsection (3).
page 10
Planning Appeals Bill 1999
Appeals Part 2
Investigation of appeals Division 3
s. 17
17. Investigation of appeals
(1) The purpose of an investigation into an appeal is to gather
sufficient information to enable a Planning Appeal Panel to
properly determine the appeal in accordance with section 22.
5 (2) An Assessor investigating an appeal may inform himself or
herself on any issue raised by the appeal in any manner the
Assessor considers appropriate, including --
(a) by assessing written statements made by the parties,
witnesses, experts and anyone else the Assessor
10 considers appropriate;
(b) by having discussions with the parties, witnesses, experts
and anyone else the Assessor considers appropriate;
(c) by conducting hearings; and
(d) by inspecting any relevant land or place.
15 (3) Discussions, hearings and inspections conducted under
subsection (2) are not open to the public unless the Assessor
determines otherwise.
(4) Cross examination is not permitted at a hearing unless --
(a) the Assessor determines that in the particular case
20 cross-examination is appropriate; and
(b) the cross-examination is conducted in accordance with
any directions of the Assessor.
(5) An Assessor investigating an appeal is not bound by the rules of
evidence and may, subject to this Act and the regulations,
25 determine his or her own procedures.
18. Matters to be considered by Assessor investigating appeal
(1) While investigating an appeal an Assessor is to have regard to
all relevant matters including --
(a) generally accepted planning principles;
page 11
Planning Appeals Bill 1999
Part 2 Appeals
Division 3 Investigation of appeals
s. 19
(b) any agreements under section 10(1)(b) to settle
particular issues;
(c) any submissions made in relation to the appeal under
section 16(2);
5 (d) any relevant town planning schemes, orders, statements,
policies and plans;
(e) if the appeal is made under the Heritage Act 1999, the
provisions of that Act;
(f) any relevant management programmes in force under
10 Part 3 of the Swan River Trust Act 1988;
(g) if the appeal relates to land in the redevelopment area as
defined in the East Perth Redevelopment Act 1991, the
redevelopment scheme in force under that Act; and
(h) if the appeal relates to land in the redevelopment area as
15 defined in the Subiaco Redevelopment Act 1994, the
redevelopment scheme in force under that Act.
(2) An Assessor investigating an appeal may investigate all issues
arising in relation to the decision the subject of the appeal and is
not limited to investigating the issues specifically raised in the
20 notice of appeal.
19. Powers of Assessor investigating an appeal
(1) Without limiting section 40(2)(a) an Assessor investigating an
appeal may --
(a) by written notice, require a person to --
25 (i) attend before the Assessor to provide
information; or
(ii) produce to the Assessor any document or other
thing in the possession or under the control of the
person,
30 at a time and place specified in the notice;
page 12
Planning Appeals Bill 1999
Appeals Part 2
Investigation of appeals Division 3
s. 20
(b) if the Assessor considers it to be necessary, require any
person appearing before the Assessor --
(i) to take an oath or make an affirmation; and
(ii) to answer any relevant question put to the
5 person;
(c) administer an oath or affirmation to a person and
examine the person on oath or affirmation;
(d) inspect, copy and retain for such reasonable period as
the Assessor thinks fit, any document or other thing
10 produced to the Assessor; and
(e) after giving reasonable written notice to the occupier,
enter any land or place relevant to the appeal for the
purpose of inspecting it.
(2) A person who fails to comply with a requirement of an Assessor
15 under subsection (1) commits an offence.
Penalty: $2 000.
(3) A notice under subsection (1)(a) is to --
(a) contain sufficient details of the matters being
investigated to enable the person to prepare himself or
20 herself; and
(b) be given to the person at least 7 days before the person
is required to attend or produce the document or other
thing.
20. Report on investigation
25 (1) An Assessor investigating an appeal is to give to the Director a
written report on the investigation which is to include the
Assessor's recommendations as to how the appeal ought to be
determined.
page 13
Planning Appeals Bill 1999
Part 2 Appeals
Division 4 Determination of appeals
s. 21
(2) The Director is to give the report to the Planning Appeal Panel
convened to determine the appeal.
Division 4 -- Determination of appeals
21. Convening a Planning Appeal Panel
5 (1) On receipt of a report under section 20 the Director is to
convene a panel, consisting of --
(a) the Director;
(b) the community representative; and
(c) 2 or more other Assessors,
10 to determine the appeal.
(2) The Planning Appeal Panel convened in respect of an appeal --
(a) may include an Assessor who investigated the appeal;
but
(b) must not include an Assessor who mediated the appeal
15 unless the parties agree.
(3) If an Assessor becomes unavailable to complete the
determination of an appeal, the Director is to appoint another
Assessor to the Planning Appeals Panel in his or her place.
(4) A Planning Appeal Panel is not a court and a person does not
20 have any judicial status by reason of being a member of a
Planning Appeal Panel.
22. Determination of appeal by Planning Appeal Panel
(1) A Planning Appeal Panel is to determine the appeal in respect of
which it was convened by --
25 (a) affirming the decision appealed against;
(b) varying the decision appealed against; or
page 14
Planning Appeals Bill 1999
Appeals Part 2
Determination of appeals Division 4
s. 23
(c) setting aside the decision appealed against and --
(i) substituting the Panel's own decision; or
(ii) remitting the matter to the original decision
maker, either with or without directions.
5 (2) A Planning Appeal Panel may also make any incidental or
ancillary orders.
23. Procedure
(1) In determining an appeal the Planning Appeal Panel is to have
regard to any report of an Assessor who investigated the appeal.
10 (2) The Planning Appeal Panel is not bound by the
recommendations of an Assessor.
(3) The Planning Appeal Panel is not to conduct any further
investigation of an appeal in respect of which it is convened but
may refer the appeal back to an Assessor for further
15 investigation if it considers it necessary to do so.
(4) The determination of a majority of members of a Planning
Appeal Panel is the determination of the Panel.
(5) If the Planning Appeal Panel is equally divided in opinion, the
opinion of the Director is to prevail.
20 (6) A determination of a Planning Appeal Panel is to be in writing
and is to include the Panel's reasons.
(7) The Registrar is to give each party a copy of the Panel's
decision.
24. Costs
25 (1) Subject to subsection (2), each party is to bear the party's own
costs in relation to an appeal.
page 15
Planning Appeals Bill 1999
Part 2 Appeals
Division 5 Calling in of appeals by the Minister
s. 25
(2) When determining an appeal a Planning Appeal Panel may
make such orders as to costs as the Panel thinks fit against a
party who --
(a) failed to comply with a requirement under section 9(1);
5 (b) being the appellant, withdraws from the appeal; or
(c) the Panel considers has acted unreasonably, vexatiously
or frivolously in relation to the appeal.
(3) A party in whose favour costs have been awarded may recover
the amount so awarded in a court of competent jurisdiction as a
10 debt due to that party by the party against whom the order was
made.
Division 5 -- Calling in of appeals by the Minister
25. Minister may call in certain appeals
(1) The Minister may, by written notice to the Director, call in an
15 appeal if the Minister considers the appeal raises issues of such
State, regional or other public importance that it would be more
appropriate for it to be determined by the Minister than by a
Planning Appeal Panel.
(2) The Minister cannot call in an appeal --
20 (a) made under section 7(1f) of the Town Planning and
Development Act 1928;
(b) made under the Heritage Act 1999; or
(c) after a determination has been made in relation to it
under section 22.
25 (3) When the Minister calls in an appeal --
(a) the Director is to give control of the appeal to the
Minister;
page 16
Planning Appeals Bill 1999
Appeals Part 2
Calling in of appeals by the Minister Division 5
s. 26
(b) any mediation being carried out under Division 2 is to
be discontinued;
(c) subject to section 26(3), any investigation being carried
out under Division 3 is to be discontinued; and
5 (d) the Registrar is to notify the parties that the appeal has
been called in by the Minister.
(4) The annual report submitted by the relevant accountable
authority under section 62 of the Financial Administration and
Audit Act 1985 is to include details of the appeals called in by
10 the Minister during the year.
26. Investigation of called in appeals
(1) The Minister is to deal with a called in appeal by --
(a) personally investigating the appeal;
(b) directing the Director to investigate the appeal;
15 (c) appointing a person or persons, whom the Minister
considers to be suitably qualified or experienced, to
investigate the appeal; or
(d) doing any combination of those things.
(2) If the Minister --
20 (a) personally conducts investigations; or
(b) appoints a person under subsection (1)(c),
sections 16 (if it has not already been complied with in relation
to the appeal) to 19 apply as if the Minister or other person were
an Assessor investigating an appeal.
25 (3) If the Minister directs the Director to investigate the appeal the
Director is to --
(a) if the appeal is already being investigated under
Division 3, direct the Assessor to continue the
investigation; or
page 17
Planning Appeals Bill 1999
Part 2 Appeals
Division 6 General
s. 27
(b) otherwise assign, in accordance with section 15, an
Assessor to investigate the appeal.
(4) An Assessor acting under subsection (3) is to investigate and
report on the appeal in accordance with sections 16 to 20,
5 except that reports under section 20 are to be given to the
Minister instead of the Director.
27. Determination by the Minister
(1) After a called in appeal has been investigated the Minister is to
determine the appeal in accordance with section 22(1) as if the
10 Minister were a Planning Appeal Panel.
(2) Sections 22(2), 23 and 24 apply as if the Minister were a
Planning Appeal Panel.
Division 6 -- General
28. Representation
15 (1) Subject to subsections (4) and (5) a party who is a natural
person must attend in person if required to attend during the
mediation or investigation of an appeal.
(2) A party that is not a natural person is to be represented --
(a) during the mediation of an appeal by a natural person
20 who has authority to enter into, on behalf of the party,
an agreement to settle the appeal; and
(b) during the investigation of an appeal by a natural person
who is able to provide all relevant information necessary
for the proper investigation of the appeal.
25 (3) Subject to subsection (4) a representative under subsection (2)
must not be a legal practitioner.
page 18
Planning Appeals Bill 1999
Appeals Part 2
General Division 6
s. 29
(4) A party may apply to an Assessor for leave to be represented by
a legal practitioner or other representative during the mediation
or investigation of an appeal.
(5) The Assessor is to grant an application under subregulation (4)
5 if the Assessor is satisfied that --
(a) the applicant would, if leave were not granted, be
unfairly disadvantaged; or
(b) the mediation or investigation will not be effective
without that representation.
10 (6) A person attending a mediation or investigation may not be
assisted by another person unless the Assessor considers that the
attendance of the other person will assist the mediation or
investigation.
29. Appeals to Supreme Court
15 (1) Subject to subsection (2) no appeal lies against the
determination of an appeal by a Planning Appeal Panel or the
Minister.
(2) A party aggrieved by the determination of an appeal by a
Planning Appeal Panel may appeal to the Supreme Court on a
20 question of law, but not otherwise.
(3) An appeal under subsection (2) is to be --
(a) made to the Supreme Court; and
(b) determined by a single judge of the Supreme Court,
in accordance with the rules of the Court.
25 (4) On an appeal under subsection (2) the Supreme Court is to --
(a) affirm the Panel's determination;
(b) vary the Panel's determination; or
page 19
Planning Appeals Bill 1999
Part 2 Appeals
Division 6 General
s. 29
(c) set aside the Panel's determination and --
(i) substitute the Court's own determination; or
(ii) remit the matter to the original decision maker
either with or without directions.
5 (5) The Supreme Court may also make any incidental or ancillary
orders, including orders as to costs.
page 20
Planning Appeals Bill 1999
Referrals Part 3
s. 30
Part 3 -- Referrals
30. Referral of submissions under Metropolitan Region Town
Planning Scheme Act 1959
(1) Submissions referred under section 33A(5)(b) of the
5 Metropolitan Region Town Planning Scheme Act 1959 are to be
dealt with as if they were an appeal --
(a) by the people who made the submissions against the
Western Australian Planning Commission's decision to
propose the amendment to which the submissions relate;
10 and
(b) that the Director has set down for investigation.
(2) When dealing with submissions under subsection (1), instead of
making a determination under section 22, the Planning Appeal
Panel is to make a recommendation to the Minister as to what
15 action the Panel considers the Minister should take under
section 33A(7) of the Metropolitan Region Town Planning
Scheme Act 1959.
31. Referral of matters under Town Planning and Development
Act 1928
20 (1) A referral under section 18(2) of the Town Planning and
Development Act 1928 is to be dealt with and determined as if it
were an appeal by the aggrieved person against a decision of the
local government not to enforce the scheme or provision, or not
to carry out the works, referred to in that section.
25 (2) When dealing with a matter under subsection (1), instead of
making a determination under section 22, the Planning Appeal
Panel is to make a recommendation to the Minister as to what
action the Panel considers the Minister should take under
section 18(2a) of the Town Planning and Development
30 Act 1928.
page 21
Planning Appeals Bill 1999
Part 3 Referrals
s. 32
32. Referrals under the Heritage Act 1999 where objection to:
an interim entry being made permanent; to changing the
area of a registered place or state heritage area; or to the
removal of an entry from the Register
5 (1) A referral under section 38 of the Heritage Act 1999 is to be
dealt with as if it were an appeal --
(a) by the people who made the submissions objecting to --
(i) making the interim entry in the Register
permanent;
10 (ii) increasing or decreasing the area of the
registered place or the state heritage area; or
(iii) removing the permanent entry from the Register,
as is relevant to the case;
and
15 (b) that the Director has set down for investigation.
(2) When dealing with a matter under subsection (1), instead of
making a determination under section 22, the Planning Appeal
Panel is to make a recommendation to the Minister referred to in
section 38 of the Heritage Act 1999 as to whether the Minister
20 should direct that --
(a) the interim entry in the Register be made permanent;
(b) the area of the registered place or the state heritage area
be increased or decreased; or
(c) the permanent entry be removed from the Register,
25 as is relevant to the case.
page 22
Planning Appeals Bill 1999
Referrals Part 3
s. 33
33. Referrals under the Heritage Act 1999 of orders for the
payment of remitted taxes, rates or charges
(1) A referral under section 82(4) of the Heritage Act 1999 is to be
dealt with as if it were an appeal --
5 (a) by the person who is aggrieved by a notice under
section 82(3)(b)(i) of that Act; and
(b) that the Director has set down for investigation.
(2) If a person refers a matter in accordance with section 82(4) of
the Heritage Act 1999, the person must, in addition to the
10 requirements of section 5(1)(c), give the Heritage Council a
copy of the notice of appeal and any submissions made under
section 5(1)(b)(ii) within 7 days of lodgment of the notice.
(3) When dealing with a matter under subsection (1), instead of
making a determination under section 22, the Planning Appeal
15 Panel may --
(a) determine on the balance of probabilities whether a
provision of the Heritage Act 1999 or a heritage
agreement has been contravened;
(b) determine how liability should be apportioned where
20 land has ceased to be held or occupied by the person in
whose favour the tax, rate or charge was remitted; or
(c) determine whether or not the making of the proposed
order would be just in the circumstances.
34. Minister's request to extend protection orders under the
25 Heritage Act 1999
(1) A request under section 88(1) of the Heritage Act 1999 to
extend the time in which a protection order under that Act has
effect is to be dealt with as it were an appeal --
(a) by the Minister;
page 23
Planning Appeals Bill 1999
Part 3 Referrals
s. 35
(b) with the person who was served with the protection
order as the respondent; and
(c) that the Director has set down for investigation.
(2) When dealing with a matter under subsection (1), instead of
5 making a determination under section 22, the Planning Appeal
Panel may determine that the conservation order continue to
have effect --
(a) for a specified period of time; or
(b) until a specified event.
10 35. Effect of determinations
A determination under section 33 or 34 has effect according to
its tenor and is to be complied with despite any other provision
of a written law.
page 24
Planning Appeals Bill 1999
Director, Assessors, Registrar and staff Part 4
s. 36
Part 4 -- Director, Assessors, Registrar and staff
36. Director of Planning Appeals
(1) The Governor is to appoint a person as Director of Planning
Appeals.
5 (2) The person appointed as Director is to have expertise in, or in a
field relating to, urban and regional planning.
(3) The office of the Director of Planning Appeals is not an office
in the Public Service and is not to be included in the Senior
Executive Service provided for by the Public Sector
10 Management Act 1994.
(4) Schedule 2 has effect with respect to the tenure, salary and
conditions of service of the Director.
(5) If the Director is unable to act by reason of illness, absence or
other cause, the Minister may appoint another person to act
15 temporarily in the Director's place and, while so acting
according to the tenor of that appointment, that other person is
to be taken to be the Director.
(6) No act or omission of a person acting in place of the Director
under subsection (5) is to be questioned on the ground that the
20 occasion for the appointment or acting had not arisen or had
ceased.
37. Powers of the Director
(1) The Director has power to do all things that are necessary or
convenient to be done in the performance of the functions
25 conferred on the Director under this Act or any other written
law.
page 25
Planning Appeals Bill 1999
Part 4 Director, Assessors, Registrar and staff
s. 38
(2) In addition to any other powers conferred on the Director, the
Director may advise the Minister generally on matters --
(a) arising under this Act;
(b) concerning appeals against decisions relating to
5 planning or heritage matters; or
(c) concerning planning and heritage generally.
38. Delegation by Director
(1) The Director may delegate the performance of any of the
Director's functions, except this power of delegation, to --
10 (a) one or more Assessors;
(b) the Registrar;
(c) one or more members of staff; or
(d) any other person.
(2) A function performed by a delegate under this section is to be
15 taken to be performed by the Director.
(3) Where a delegate performs a function under this section the
delegate is to be taken to do so in accordance with the terms of
the delegation unless the contrary is shown.
39. Assessors
20 (1) The Minister is to appoint so many people as Assessors as the
Minister considers necessary for the purposes of this Act.
(2) A person appointed as an Assessor is to have expertise in, or in
a field relating to, urban and regional planning.
(3) Of the Assessors there must be --
25 (a) at least one who has expertise in urban and regional
planning;
(b) at least one who has expertise in environmental science;
page 26
Planning Appeals Bill 1999
Director, Assessors, Registrar and staff Part 4
s. 40
(c) at least one who is a certificated practitioner within the
meaning of the Legal Practitioners Act 1893; and
(d) at least one who has expertise in heritage matters.
(4) A person employed under Part 3 of the Public Sector
5 Management Act 1994 may be appointed under subsection (1)
as an Assessor.
(5) An Assessor who is not employed under Part 3 of the Public
Sector Management Act 1994 is to be paid the remuneration and
allowances determined by the Minister on the recommendation
10 of the Minister for Public Sector Management.
(6) An Assessor may resign from office by written notice to the
Minister.
40. Powers and duties of Assessors
(1) An Assessor has power to do all things that are necessary or
15 convenient to be done in the performance of the functions
conferred on Assessors under this Act or any other written law.
(2) While mediating or investigating an appeal an Assessor is to --
(a) act with as little formality and technicality, and as
speedily, as the requirements of this Act and proper
20 mediation or investigation of the matter permit;
(b) be impartial and act in accordance with equity, good
conscience and the principles of natural justice;
(c) ensure that each party has a reasonable opportunity to
present the party's case; and
25 (d) ensure, as far as practicable, that no party is unfairly
disadvantaged by reason of the party's --
(i) unfamiliarity with the operation of this Act;
(ii) lack of professional advice or assistance; or
page 27
Planning Appeals Bill 1999
Part 4 Director, Assessors, Registrar and staff
s. 41
(iii) age, cultural background, level of education, lack
of fluency in English, or any other similar
circumstances.
41. Community representative
5 (1) The Minister is to appoint a person as community representative
and may appoint a person as deputy community representative.
(2) The person appointed as community representative or deputy
community representative --
(a) is to have expertise in public administration, commerce,
10 industry or community affairs; and
(b) may be a person appointed as an Assessor.
(3) Schedule 3 has effect with respect to the community
representative.
(4) References in Schedule 3 to the community representative
15 include references to the deputy community representative.
42. Registrar
(1) The Minister is to appoint a person as Registrar.
(2) Subject to the control of the Director, the Registrar is
responsible for, and has the necessary powers to administer, the
20 day to day operation of this Act.
(3) The Registrar is to be appointed under Part 3 of the Public
Sector Management Act 1994.
43. Other staff and facilities
(1) The Minister is to ensure that the Director, Assessors and
25 Registrar are provided with such services and facilities as are
reasonably necessary to enable them to perform their functions.
page 28
Planning Appeals Bill 1999
Director, Assessors, Registrar and staff Part 4
s. 43
(2) Without limiting subsection (1) the Minister may arrange for --
(a) the services of any officer or employee in the Public
Service or in a State agency or instrumentality or
otherwise in the service of the Crown in the right of the
5 State; and
(b) any facilities of a department of the Public Service or of
a State agency or instrumentality,
to be made available to the Director, Assessors and Registrar.
(3) An arrangement under subsection (2) is to be made between the
10 Minister, after consultation with the Director, and the relevant
employing authority on such terms as they agree.
page 29
Planning Appeals Bill 1999
Part 5 General
s. 44
Part 5 -- General
44. Register
(1) The Registrar is to establish and maintain a register of appeals
made under this Act.
5 (2) The register may be maintained in an electronic, digital or other
form so long as the details recorded in it --
(a) will remain in the form in which they were originally
recorded; and
(b) are capable of being reproduced in written form.
10 (3) The form and contents of the register are to be determined by
the Director.
(4) A person may at any time during normal office hours --
(a) inspect the register free of charge; and
(b) purchase a copy of all or part of the register.
15 (5) The Registrar is to ensure that copies of the register are
available for purchase and that the price at which they are sold
does not exceed the cost of providing them.
45. Publication of significant appeals
(1) The Director may publish the reasons for determinations made
20 on an appeal under this Act.
(2) The Director is to give priority to the publication of reasons for
determinations that the Director considers --
(a) are of significance to future planning policy or practice;
(b) establish new planning principles; or
25 (c) are otherwise of significant public interest or
importance.
page 30
Planning Appeals Bill 1999
General Part 5
s. 46
46. False or misleading statements
A person must not --
(a) make a statement in a notice of appeal; or
(b) make a statement or provide information during the
5 mediation or investigation of an appeal,
that the person knows to be --
(c) false or misleading in a material particular; or
(d) likely to deceive in a material way.
Penalty: $2 000.
10 47. Hindering an Assessor
A person must not hinder or obstruct an Assessor, or a person
investigating an appeal under section 26, while he or she is
exercising powers under this Act.
Penalty: $2 000.
15 48. Confidentiality
(1) A person to whom this subsection applies must not, directly or
indirectly, record, disclose or make use of any information
obtained in the course of the person's functions under this Act
except --
20 (a) for the purpose of performing those functions;
(b) as required or allowed by law;
(c) with the written consent of the person to whom the
information relates; or
(d) in prescribed circumstances.
25 Penalty: $10 000 or imprisonment for 12 months.
page 31
Planning Appeals Bill 1999
Part 5 General
s. 49
(2) Subsection (1) applies to any person who is, or has been, the
Director, an Assessor, the Registrar, the community
representative, the deputy or acting community representative, a
person appointed under section 26(1)(c) or a person made
5 available under section 43.
49. Protection from liability
(1) An action in tort does not lie against a person for anything that
the person has, in good faith, done in the performance or
purported performance of a function under this Act.
10 (2) The protection given by this section applies even though the
thing done in the performance or purported performance of a
function under this Act may have been capable of being done
whether or not this Act had been enacted.
(3) This section does not relieve the Crown of any liability that it
15 might have for the doing of anything by a person against whom
this section provides that an action does not lie.
(4) In this section, a reference to the doing of anything includes a
reference to the omission to do anything.
50. Protection of persons providing information
20 A person providing information under this Act has the same
protection, and is subject to the same liabilities, as a witness in
proceedings in the Supreme Court.
51. Minister may give directions
(1) Subject to subsection (2), the Minister may give directions in
25 writing to the Director with respect to the operation of this Act
and the Director is to ensure that effect is given to any such
direction.
page 32
Planning Appeals Bill 1999
General Part 5
s. 52
(2) Subject to Part 2 Division 5, directions under subsection (1) are
to be limited to matters of administration and are not to deal
with the mediation, investigation or determination of appeals.
(3) The text of a direction given under subsection (1) is to be
5 included in the annual report submitted by the relevant
accountable authority under section 62 of the Financial
Administration and Audit Act 1985.
(4) A copy of a direction given under subsection (1) is to be --
(a) laid before each House of Parliament within 14 days
10 after the direction is given; or
(b) if a House of Parliament is not sitting when the direction
is given and the Minister is of the opinion that the House
will not sit during those 14 days, given to the Clerk of
that House.
15 (5) A document given to the Clerk of a House is to be taken --
(a) to have been laid before that House; and
(b) to be a document published by order or under the
authority of that House.
(6) The laying of a document that is taken to have occurred under
20 subsection (5)(a) is to be recorded in the Minutes, or Votes and
Proceedings, of the House on the first sitting day of the House
after the document is given to the Clerk.
52. Minister to have access to information
(1) The Minister is entitled --
25 (a) to have information in the possession of any person
exercising a function under this Act; and
(b) where the information is in or on a document, to have,
and make and retain copies of, that document.
page 33
Planning Appeals Bill 1999
Part 5 General
s. 53
(2) For the purposes of subsection (1) the Minister may --
(a) request the Director to furnish information to the
Minister;
(b) request the Director to give the Minister access to
5 information; and
(c) for the purposes of paragraph (b) make use of a person
available to the Director under section 43 to obtain the
information and furnish it to the Minister.
(3) The Director is to comply with a request under subsection (2)
10 and make members of staff and other facilities available to the
Minister for the purposes of subsection (2)(c).
(4) In this section --
"information" means information specified, or of a description
specified, by the Minister that relates to the operation of
15 this Act.
53. Judicial notice of appointment and signature
All courts and persons acting judicially are to take judicial
notice of --
(a) the fact that a person holds or held the office of
20 Director; and
(b) the signature of a person who holds or held the office of
Director.
54. Regulations
(1) The Governor may make regulations prescribing all matters that
25 are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for carrying out or
giving effect to the purposes of this Act.
page 34
Planning Appeals Bill 1999
General Part 5
s. 55
(2) Without limiting the operation of subsection (1), the Governor
may make regulations providing for --
(a) fees and charges to be paid;
(b) forms to be used; and
5 (c) the practice and procedure to be applied,
in relation to appeals made under this Act.
55. Review
(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
10 expiry of 5 years from its commencement.
(2) In the course of that review the Minister is to consider and have
regard to --
(a) the desirability of the continuation of the functions of
the Director and Assessors; and
15 (b) such other matters as appear to the Minister to be
relevant to the operation and effectiveness of this Act.
(3) The Minister is to prepare a report based on the review carried
out under subsection (1) and cause that report to be laid before
each House of Parliament as soon as practicable.
page 35
Planning Appeals Bill 1999
Schedule 1 Persons to be notified of investigation
Schedule 1 -- Persons to be notified of investigation
[s. 16(1)]
Act conferring right of appeal Persons to be notified
· Section or subject matter
Town Planning and Development Minister to whom the
Act 1928 administration of the
· s. 8B; or Environmental Protection
· an environmental condition Act 1986 is for the time being
committed by the Governor
Heritage Act 1999 Heritage Council
Metropolitan Region Town Planning Heritage Council
Scheme Act 1959
· s. 35F relating to heritage matters
Western Australian Planning Heritage Council
Commission Act 1985
· s. 37E relating to heritage matters
East Perth Redevelopment Act 1991 East Perth Redevelopment
· land in redevelopment area Authority
Subiaco Redevelopment Act 1994 Subiaco Redevelopment
· land in redevelopment area Authority
Swan Valley Planning Act 1995 Swan Valley Planning
· land in the Swan Valley Committee
Prescribed Act Prescribed person
· prescribed section or subject matter
page 36
Planning Appeals Bill 1999
Terms and conditions of appointment of Director Schedule 2
Schedule 2 -- Terms and conditions of appointment of
Director
[s. 36(4)]
1. Term of office
5 Subject to clause 3, the Director holds office for a term, not exceeding
5 years, fixed by the instrument of appointment, and is eligible for
reappointment.
2. Salary and entitlements
Subject to the Salaries and Allowances Act 1975, the Director --
10 (a) is to be paid salary and allowances at a rate per year
determined by the Minister on the recommendation of the
Minister for Public Sector Management; and
(b) has the same annual leave, sick leave and long service leave
entitlements as a permanent officer of the Public Service.
15 3. Resignation and removal from office
(1) The Director may resign by written notice to the Governor.
(2) The Governor may remove the Director from office if the Director --
(a) misbehaves or is incompetent;
(b) is suffering from a permanent physical or mental incapacity
20 that impairs the performance of the Director's functions; or
(c) becomes a bankrupt or applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes an assignment of salary for
their benefit.
25 (3) In subclause (2)(a) --
"misbehaves" includes behaving in a manner that renders the
Director unfit to hold office even if the conduct does not relate to
any function of the office of Director.
page 37
Planning Appeals Bill 1999
Schedule 2 Terms and conditions of appointment of Director
4. Superannuation
If the Director was a contributor under the Superannuation and
Family Benefits Act 1938 immediately before being appointed as
Director, he or she may continue to be a contributor while he or she is
5 Director.
5. Appointment of public service officer
(1) A person who held an office in the Public Service ("previous office")
immediately before being appointed as Director --
(a) retains existing and accruing leave entitlements as if service
10 as the Director were a continuation of service in the previous
office; and
(b) if he or she ceases to hold office as the Director on the
completion of a periodical appointment, is entitled to be
appointed to an office in the Public Service, not lower in
15 classification and salary than the previous office (as long as
he or she is at that time eligible to hold such an office in the
Public Service).
(2) A person appointed to an office in the Public Service under
subclause (1)(b) retains existing and accruing leave entitlements as if
20 service in the Public Service were a continuation of service as the
Director.
6. Other conditions of service
The Governor may, on the recommendation of the Minister for Public
Sector Management, determine any other terms and conditions of
25 service to apply to the Director.
page 38
Planning Appeals Bill 1999
Community representative Schedule 3
Schedule 3 -- Community representative
[s. 41(3)]
1. Term of office and resignation
The community representative --
5 (a) is to be appointed for a term not exceeding 3 years specified
in the instrument of appointment and is eligible for
reappointment;
(b) may be removed from office by the Minister; and
(c) may resign from office by giving written notice to the Minister.
10 2. Remuneration and allowances
The community representative is to be paid the remuneration and
allowances determined by the Minister on the recommendation of the
Minister for Public Sector Management.
3. Acting community representative
15 (1) If the community representative becomes incapable of acting by
reason of illness, absence or other cause --
(a) the deputy community representative is to act as community
representative; or
(b) if the deputy community representative is incapable of acting
20 by reason of illness, absence or other cause, the Minister may
appoint a qualified person to act temporarily as the
community representative,
and while so acting that person is taken to be the community
representative.
25 (2) No act or omission of a person acting under subclause (1) is to be
questioned on the ground that the occasion for the appointment or
acting had not arisen or had ceased.
page 39
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