Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where, in the
opinion of the Minister, it is necessary or desirable to provide special
protection in respect of any place, whether or not entered in the Register,
the Minister may, subject to this section, make a Conservation Order in
relation to that place.
(2) Where, by reason
of the likelihood of imminent damage to a place, a specific prohibition is
urgently necessary the Minister may make a Conservation Order
forthwith —
(a) with
the consent of the owner of that place as to the terms to be specified in that
Order — in this Division referred to as a Consent Order ; or
(b)
otherwise, in such terms as the Minister specifies in the
Order — in this Division referred to as a Stop Work Order ,
and in either such
case the prerequisites to the making of a Conservation Order which would
otherwise be required by subsection (4) need not be complied with prior
to the Order taking effect.
(3) On the making of
an Order under subsection (2)(a), the Council shall cause inquiries to be
made and shall make a recommendation to the Minister as to the term for which
any Consent Order should remain in effect or as to whether or not it should be
revoked or replaced by an Order made pursuant to subsection (4).
(4) A Conservation
Order, not being of the nature of a Consent Order or a Stop Work Order, shall
not be made by the Minister unless the Council has —
(a)
given notice in writing to the owner of the land which is likely to be
directly affected, explaining the nature of the special protection proposed
and the reason for it;
(b) by
public advertisement —
(i)
given notice that it is proposed to make a Conservation
Order in relation to the place;
(ii)
set out a sufficient description to identify the place;
(iii)
invited persons generally to make submissions relating to
the proposed Conservation Order, specifying the manner in which and the
address to which the submissions should be forwarded; and
(iv)
specified the date, being not earlier than 7 days
after the publication of the advertisement in the Gazette , by which the
submissions are to be made;
and
(c) when
the date by which the submissions were to be made has
passed —
(i)
considered any submissions forwarded pursuant to any
notice given to an owner of land which is likely to be directly affected or to
the advertisement referred to in paragraph (b); and
(ii)
considered and advised the Minister on those submissions
and as to the recommendation of the Council.
(5) A prohibition
contained in a Conservation Order may relate to —
(a) the
entry of persons on to the place, other than entry by an owner or authorised
occupier;
(b) the
bringing of vehicles, machinery or equipment, or materials or substances of
any kind or of a specified kind on to the place;
(c) any
activity of a kind which, in the opinion of the Minister, is likely to affect
detrimentally the cultural heritage characteristics or conservation of the
place;
(d) the
demolition, damage or alteration of the place or any portion of the place, or
any building or structure;
(e) any
thing which, in the opinion of the Minister, is likely to cause disturbance to
the land or any plant or species of animal at the place; or
(f) any
development proposal or other matter in respect to which the Minister is
satisfied a prohibition is needed for the purposes of this Act,
and any such
prohibition may be expressed to be absolute, or to be subject to a specified
exemption or to the exercise of a discretionary authority vested by the Order
in a specified person, or to have effect unless conditions specified are not
contravened, and effect shall be given to the prohibition in accordance with
the tenor of the Order.
(6) In
subsection (5) specified means specified in the Conservation Order.
(7) A Conservation
Order shall cease to have effect —
(a)
where the place, or the portion of the place, concerned is removed from the
Register;
(b) when
the Minister has, after consultation with the Council, by notice in the
Gazette revoked the Order;
(c) in
the case of a Consent Order, in accordance with the tenor of the Order if the
Order is expressed to be of limited duration; or
(d) in
the case of a Stop Work Order, except where the Order is continued in force by
the State Administrative Tribunal under section 60(2)(b) or (c) and any
other expiry date is fixed by the State Administrative Tribunal, on the expiry
of 42 days from the making of the Order.
(8) Where a person
notifies the Council in writing that the person has a material interest in any
land or building which may be affected by a Stop Work Order and that person
has not previously been notified pursuant to this section, the Council shall
forthwith cause that person to be supplied with a copy of the Order.
(9) Where, and for so
long as, a Conservation Order has effect in relation to any land or building,
the Minister shall be taken to be a person having an interest in that land or
building on behalf of the Crown.
(10) A Stop Work Order
shall not be made in relation to any place —
(a) in
relation to which a Stop Work Order in respect of a like proposal or matter
has been revoked or has expired within the preceding 12 months; or
(b)
which is land to which section 55 applies for the time being,
except with leave of
the State Administrative Tribunal and in accordance with such order as the
State Administrative Tribunal thinks fit.
(11) Subject to
subsection (12), a Conservation Order takes effect on publication of a
notice in the Gazette setting out its terms, and effect shall be given to any
prohibition contained in the Order in accordance with the tenor of the Order.
(12) A Stop Work Order
which —
(a) is
affixed in a prominent position on the place to which it relates; or
(b) is
served on a person carrying out, or causing to be carried out, at that place
any works or other activity to which the Order refers, whether or not served
at that place,
has immediate effect,
but the Council may cause notice of its terms to be published in the Gazette
for public information.
(13) Where a
Conservation Order is made in relation to any land, the
Council —
(a)
shall cause the chief executive officer of the department principally
assisting in the administration of the Land Administration Act 1997 , the
Registrar of Titles or the Registrar of Deeds and Transfers, as the case may
require and the Director General of Mines, to be advised by way of memorial of
the effect of that Order;
(b) may
thereupon lodge such caveat or cause such other steps to be taken as may be
necessary or proper to give effect to the terms of that Order; and
(c)
except in the case of a Stop Work Order —
(i)
shall publish notice by way of public advertisement for
general information of a summary of the terms of the Order, setting out a
sufficient description to identify the place to which it refers; and
(ii)
shall cause a copy of the Order to be served, where
practicable, on the owner and each occupier of the place concerned.
(14) Where a
Conservation Order ceases to have effect —
(a) the
advice given in accordance with subsection (13)(a) shall be revised by
the Council; and
(b) the
Council shall take such steps as may be reasonable to ensure that notice has
been, or is then, given to interested persons that the Order has ceased to
have effect.
(15) Where a
Conservation Order has effect in relation to any place —
(a)
regulations made under this Act may make provision for the conservation of
that place and its use and enjoyment by the public, including the
authorisation of activities that when carried out otherwise than in compliance
with the regulations would constitute a contravention of the Order, and for
penalties for contravention of the regulations; and
(b)
signs desirable for the purpose of providing public notice of prohibitions or
regulations applying under this Act may be erected by the Council on, or
near, the place concerned.
(16) Within
14 days after the making of a Conservation Order, not being a Consent
Order, a person aggrieved by the Order, may apply to the Minister, in writing,
for a review of the Order.
(17) On receipt of an
application for review the Minister shall review the Conservation Order and
confirm, vary or revoke it.
(18) The Minister
shall cause notice of the decision on the review to be served on the applicant
and, if no notice is served within 14 days after the application was
made, the Minister shall be taken to have confirmed the Conservation Order.
(19) An application
under section 60(1)(a) for a review in relation to a Conservation Order
shall not be made while —
(a) an
application for review of the Order can still be made under
subsection (16); or
(b) the
Order is being reviewed under subsection (17).
[Section 59 amended by No. 55 of 2004
s. 504 and 507; No. 60 of 2006 s. 136.]