Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where the owner or
occupier of, or of a building on, land described in section 29(2) is
willing to enter into a Heritage Agreement but —
(a) no
party willing and able to enter into the Agreement on behalf of the Crown can
be found; or
(b)
negotiations for an Agreement have not resolved all matters of concern to that
person,
that person (in this
section referred to as the applicant ) may by notice in writing require the
Minister to refer to the State Administrative Tribunal the question of the
effect of the operation of this Act upon the estate or interest of that person
in the place to which the question relates and in particular as to whether it
would be appropriate for a Heritage Agreement to be entered into and, if so,
what provisions that Agreement should contain, including provisions that could
have effect only if an Order were made under section 36, and, if such an
Order were disallowed, what other provisions would, in the circumstances, be
reasonable.
(2) Where notice is
given under subsection (1) the Minister may —
(a)
require the applicant to undertake to execute and give effect to any Heritage
Agreement the provisions of which the State Administrative Tribunal may
approve, and may require security for that undertaking; and
(b)
require to be satisfied or give directions to ensure that section 29(4)
and (5) are observed in so far as any proposed provisions of an Agreement may
then be negotiated,
prior to referring any
question to the State Administrative Tribunal.
(3) The notice to be
given under subsection (1) shall state in general
terms —
(a) the
nature of any event or decision occurring by reason of this Act and giving
rise to the request made in the notice;
(b) the
nature of any effect alleged;
(c) the
extent, if any, to which any adverse effect has been or could be mitigated, by
any public authority or in any other manner;
(d)
whether negotiations for a Heritage Agreement have been commenced, the parties
to any such negotiations, the issues negotiated and the result of those
negotiations;
(e) what
matters of concern to the applicant remain unresolved; and
(f) what
measures the applicant is willing to take to effect the conservation of the
cultural heritage which the place possesses.
(4) The State
Administrative Tribunal shall determine a question referred under this section
and in so doing —
(a) may
require the Council to represent the Crown, or the Minister to nominate a
party to enter into any Agreement to be negotiated on behalf of the Crown;
(b)
shall have regard to the provisions of Part 4;
(c) may
provide that effect shall not be given to any measure, whether negotiated or
determined, unless or until —
(i)
a Heritage Agreement embodying that measure has come into
force; and
(ii)
if that Agreement requires the making of an Order under
section 38, that Order has been made in terms acceptable to the State
Administrative Tribunal and the period during which the Order is subject to
disallowance has elapsed;
(d) may
initiate or assist in negotiations with persons likely to be affected by the
determination of the State Administrative Tribunal, and adjourn the
proceedings meanwhile, and shall ensure that all persons likely to be
requested to become a party to any proposed Agreement are given a reasonable
opportunity of properly considering and replying to any submission made;
(e)
shall, in so far as it thinks practicable, proceed by way of review of
relevant decisions taking into account —
(i)
community representations as to the heritage significance
of the place;
(ii)
what measures of the kind referred to in
section 29(13)(g) have been considered, and if practicable implemented;
(iii)
any concessions offered by relevant public authorities or
other bodies to promote the heritage conservation;
(iv)
the need to make equitable provision for the applicant;
and
(v)
the paramount public interest, so that measures offered
as an inducement to conservation shall not be prejudicial to that interest
overall;
(f) may
seek professional opinions on land valuation and related matters from persons
not called as a witness by a party to the proceedings;
(g) may
require that other avenues of application or appeal appropriate to the
circumstances be utilised and determined prior to the intervention of the
State Administrative Tribunal, unless all parties to the proceedings otherwise
agree; and
(h) may
recommend to the Minister the making of specific provisions to be included in
any Order to be made under section 38, any such provision being taken for
the purposes of that section to have received the recommendation of the
Council,
and shall cause to be
prepared a Heritage Agreement the provisions of which are approved by the
State Administrative Tribunal and embody the findings determined by the State
Administrative Tribunal.
(5) Where the State
Administrative Tribunal makes a determination in relation to any question
under this section —
(a) that
determination shall be taken also to be the determination and recommendation
of the Council;
(b)
effect shall be given to that determination by —
(i)
the parties to the proceedings;
(ii)
the Council;
(iii)
the Treasurer;
(iv)
the Minister; and
(v)
any other decision-making authority;
and
(c) a
Heritage Agreement entered into pursuant to that determination the provisions
of which are approved by the State Administrative Tribunal shall for the
purposes of section 32 be taken to have been —
(i)
entered into to the satisfaction of the Minister; and
(ii)
so certified,
if endorsed as so
approved by the executive officer of the State Administrative Tribunal.
[Section 30 amended by No. 55 of 2004
s. 501, 507 and 508.]