Western Australian Consolidated Acts Western Australian Consolidated Acts (1)(a) Except to the
extent permitted, and in the manner prescribed, by any regulations made under
this Part, a person shall not, without the permission of the local government
granted only with the approval of the Minister —
(i)
erect a building so as to encroach on, over, or under a
street, way, or other public place, in its district;
(ii)
rebuild an existing building which encroaches on, over,
or under a street, way, or other public place in the district, so as to
encroach on, over, or under a street, way, or other public place in the
district.
(b) The
local government shall not grant its permission and the Minister shall not
give his approval unless each is of opinion that having regard to the size of
the building, and the circumstances of the case it is necessary for the
stability of the building that the permission should be granted and the
approval should be given.
(c) The
local government with the approval of the Minister may grant the permission
subject to such conditions as the local government and the Minister think fit.
(d) A
person who so erects or rebuilds a building in purported pursuance of
permission so granted but does not observe the conditions, if any, on which it
is granted, is to be regarded as having erected or rebuilt the building
without the permission of the local government.
(1a) For the purposes
of subsection (1), a building that has thereon string courses, cornices,
copings, eaves or window sills that project not more than 230 millimetres on
or over a street way or public place in a district, shall be held not to
encroach on or over the street way or public place by reason of that fact
only.
(1b) Where a local
government is of opinion that for the purpose of making more effective use of
any land within its district that is a pedestrian way, of not more than 10
metres in width, or in the interest of attractive development of the area
where that land is situated, it is desirable so to do, the local government
may, with the consent of the Minister, grant permission to a person to erect a
building above or over that pedestrian way at such height as the local
government may specify and upon and subject to such conditions as the local
government may impose.
(2) Notwithstanding
the provisions of subsection (1), a person with the permission of the
local government and in accordance with plans and specifications settled and
approved by the local government may —
(a)
place in front of his building, an awning or verandah, at least 2.75 metres
above the footpath in a street, way, or other public place, in its district,
and unless prohibited from so doing by local laws of the local government, may
use posts for the support of the awning or verandah provided the posts are
placed in such positions close to the outer edge of the footpath as the local
government directs;
(b)
place in front of his building a balcony of cantilever type having a framework
constructed of iron securely fixed with iron brackets or other supports to the
satisfaction of the building surveyor of the local government, at least 2.75
metres above the footpath in a street, way, or other public place in its
district and so that it does not encroach over the street, way, or public
place to a greater distance than —
(i)
750 millimetres if the street is in a city; or
(ii)
the outer edge of the footpath or such lesser distance as
is prescribed from time to time by local laws in operation in the district if
the street is in a shire or a town;
but permission granted
under this subsection does not relieve a person from complying with local laws
operating in the district and relating to awnings, verandahs, or balconies,
generally or to their removal in particular.
(3) If, within
35 days after written notice by the local government to remove a building
or part of a building or an awning, verandah, or balcony which is not erected,
rebuilt, placed, or provided in conformity with the requirements of this
section, or to alter it so that as altered it will conform with those
requirements, has been served on the owner or occupier of the building, it is
not removed or so altered, the Magistrates Court may grant a warrant to the
local government, authorising the local government forthwith to cause the
building or the awning, verandah, or balcony, to the extent to which it so
encroaches, to be taken down or altered to comply with those requirements and
may make such order as to the costs of and incidental to the proceedings as
the court thinks fit, and the local government, by its agents, servants and
workmen may by authority of a warrant so granted lawfully enter the land on
which it stands and take down, and remove it, accordingly at the expense of
the owner or occupier, and the local government may recover the amount of the
expense of doing so from the owner or occupier in a court of competent
jurisdiction, and a warrant so granted or an order so made is not subject to
appeal.
(4) An occupier of
property upon whom, under the provisions of this section, a penalty is
imposed, or who is put to the expense, may sue for and recover the amount of
the penalty and expense and costs ordered against him in connection with the
penalty or expense from the owner of the property in a court of competent
jurisdiction but if the owner proves an agreement by the occupier to carry out
the work in respect of which the penalty or expense has been incurred, the
agreement is a good defence to the owner in the proceedings brought against
him by the occupier.
[Section 400 amended by No. 68 of 1963
s. 20; No. 70 of 1965 s. 12; No. 94 of 1972 s. 4;
No. 39 of 1988 s. 11; No. 74 of 1995 s. 9.70; No. 14
of 1996 s. 4; No. 59 of 2004 s. 141.]